On the Friday before the Supreme Court’s term began, Justice Ketanji Brown Jackson told a crowd celebrating her investiture as the court’s first Black female member that they would be hearing more from her.
Still, few were prepared for Jackson’s venturesome debut in the court’s first sitting. Over eight oral arguments, she dominated the questioning and commentary, speaking twice as much as her next most loquacious colleague. It is likely a record for a new justice, according to Adam Feldman, who tracks such things for his Empirical SCOTUS blog.
Jackson was a persistent questioner in every case. Her contributions ranged from the sweeping — a rejection of an originalist interpretation of a colorblind Constitution that provoked swoons from the liberal legal community — to the kind of mundane minutiae upon which even Supreme Court decisions turn.
To wit, in a case about federal law regarding overtime pay: “You’re now suggesting that [Section] 601 is distinguishing highly compensated at the 455 level, but I see that in 600, which is not in the highly compensated.”
Janai S. Nelson, president of the NAACP Legal Defense Fund, said Jackson’s focus on issues large and small “was a delight to witness.”
“Many of us have advocated for increased diversity on the court, but I don’t think that we anticipated there would be such an appreciable difference out the gate,” Nelson said, adding that Jackson demonstrated oral arguments at the court are not just “performative.”
“She is asking very trenchant questions and demonstrating that it’s important for the justices to actively engage with the material and issues and arguments and people before them.”
Some conservatives have grumbled that Jackson’s outspokenness has been hailed as admirable, while justices on the right of the political spectrum — Justice Neil M. Gorsuch in his debut in 2017, for instance — were criticized for coming on too strong.
But a justice’s performance on the bench seems to be driven more by personality than ideology. The late Justice Antonin Scalia, an ardent conservative, dominated the dialogue so much at his first sitting that one of his colleagues said to another, “Do you think he knows the rest of us are here?”
The most memorable moment of Jackson’s first two weeks came in an extended monologue with Alabama Solicitor General Edmund LaCour Jr. The case was about whether the Voting Rights Act requires the creation of a second congressional district, out of seven in the state, where the state’s significant Black population would have a chance to elect a candidate of its choice.
The state argued that considering race too much in drawing congressional lines would bring it into conflict with the 14th Amendment’s guarantee of equal protection. Justice Amy Coney Barrett summed up what she saw as the state’s argument:
“I understood you to be saying that you are being asked, all states are being asked, to navigate the rock and the hard place” because “if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing … you would be violating the 14th Amendment.”
Barrett’s questions tested that premise, and Jackson followed up.
“I am so, so glad for Justice Barrett’s clarification,” the court’s newest justice began. Then, for nearly five minutes, she expanded on her view of the Constitution.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Jackson said. “I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race conscious way.”
She added: “the entire point of the [14th] Amendment was to secure rights of the freed former slaves.”
The analysis was all the more notable because it was made by only the third African American to sit on the court — and conflicts with the “colorblind” constitutional views of Justice Clarence Thomas, the nation’s second Black justice, who sits to Jackson’s right.
It’s also at odds with some conservatives’ views of the Constitution’s text: Carrie Severino and Frank Scaturro in the National Review called Jackson’s take “faux originalism.” Many analysts, as well as some of Jackson’s new colleagues, say the 14th Amendment puts all Americans on an equal footing, and no more than that.
But Elizabeth Wydra, president of the liberal Constitutional Accountability Center, said she “couldn’t have been more excited” to hear Jackson’s extended remarks; her organization has advanced a similar view of the 14th Amendment.
“It’s about time we’ve heard this vision of the Constitution in the halls of the Supreme Court,” Wydra said, adding that “reclaiming that constitutional text in a case involving voting rights is very powerful.”
Jackson also was a frequent questioner in the very first case the court heard, about the reach of the Clean Water Act. Narrowing the question of what constitutes a body of water covered by the act would change the government’s regulatory authority.
Addressing the lawyer who was challenging the current interpretation, Jackson asked, “You say the question is which wetlands are covered, which I agree with, but I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”
By the end of the eight arguments, Jackson had spoken more than 11,000 words, according to Feldman’s statistics. That’s about double the nearly 5,500 words spoken by runner-up Justice Sonia Sotomayor. (Justice Elena Kagan was in third place, indicating that while the court’s three liberals may be outvoted in many cases this term, they are not going to be outargued.)
Unlike some other recent additions to the court, Jackson had months after her confirmation to prepare for the court’s initial round of arguments. Olivia Warren, a former law clerk to Jackson during her time as a trial court judge, said the justice’s questions reflect extensive preparation and interest in making sure she understands the positions the lawyers are taking in their briefs.
“She knows the briefs inside and out, and is quoting and citing from them,” Warren said. “She is doing exactly what she said she would do in her confirmation hearing and that is asking the parties to give her the information she needs to make an informed decision within the confines of the law.”
Jackson replaced Justice Stephen G. Breyer, for whom she once clerked. Breyer was long-winded, and his remarks from the bench were filled with hypotheticals about the impact of the case at hand on the law.
Warren said Jackson, instead, views oral argument as a conversation.
It seems clear that Jackson talks more extensively and asks more questions than the court’s other recent additions — Gorsuch, Barrett and Brett M. Kavanaugh. But direct comparisons are difficult, because the court has changed its procedure for conducting oral arguments since those justices joined.
These days, Thomas — the court’s most senior member — gets the first opportunity to ask questions, followed by a session in which other justices may jump in with their interrogations. At a certain point, Chief Justice John G. Roberts Jr. asks each justice in turn whether he or she has additional questions. Arguments that once ended promptly after an hour now routinely go much longer, sometimes more than twice that.
“To the extent that other justices are not utilizing their opportunity to engage as thoroughly as she is, that’s really their prerogative,” Nelson said. While some newcomers have been more deferential, “I think she did not come to the court to adhere to the protocol for no reason,” the lawyer said.
Jackson is still relatively new at operating as a member of a judicial panel. For eight years, she ran her own courtroom as a federal district judge. During her year-long stint at the U.S. Court of Appeals for the D.C. Circuit, Jackson participated in oral argument on 17 days during a five-month period that ended when President Biden nominated her to the Supreme Court in late February.
Her learning process on the Supreme Court started on the first argument day, in the Clean Water Act case.
It has been common procedure at the court in recent years that, after both sides have presented their cases, the challengers get the chance for a few minutes of uninterrupted rebuttal. But when lawyer Damien M. Schiff returned to the microphone, Jackson pounced with inquiries.
After the questioning continued, Roberts signaled for a page, who delivered a note to Jackson. She read it and smiled.
“We’ll give you an extra minute,” Roberts told the lawyer.
