Oct 5, 2022
The Bold and the Brilliant. Justice Brown Jackson in Action.
But Why Are We Surprised?
Much is being made this morning about the Honorable Ketanji Brown Jackson’s appearance this First week of October. And that is good, I suppose. I’m always happy to see a sister get some props.
Yet, we should know by now that Justice Jackson is wickedly smart, with an academic record and intellectual intensity that rivals any Supreme Court Justice before or since.
Be proud. Fine. But we shouldn’t be surprised.
After all, President Biden plucked Justice Jackson from the DC Circuit, widely viewed as the most distinguished federal bench in the country. Before that, she had deployed her talents to serve her country as a federal public defender and on the U.S. Sentencing Commission. She hails from Harvard University and Harvard Law School — where she worked as an editor for the Harvard Law Review, arguably the most prestigious thing a law student can do.
The young Ketanji Brown then graduated at the top of her Harvard Law class (no easy feat), opening the door to not one but three clerkships, the last for Justice Stephen Breyer, whom she has now replaced on the Supreme Court.
That is all to say, this woman is a Bad Ass.
We needn’t and shouldn’t be surprised that, when she speaks, we hear her bold brilliance filtered through the life experience of a Black woman who has accomplished great things in a country that assumed she would not.
As such, this first Black woman to sit on the highest court in the land spent part of yesterday schooling the attorneys, her fellow justices, and everyone else seated in that hallowed courtroom about the corrosive history of race in this land. The Justices were hearing arguments in Merrill v. Milligan, a voting rights challenge to Alabama’s congressional district maps. Her conservative colleagues were signaling their inclination to uphold Alabama’s redistricting plan.
But Justice Jackson wasn’t having it.
She pointedly reminded them, through her questioning, that voting is rooted in the Fourteenth Amendment. “The entire point of the Amendment was to secure rights of the freed former slaves.” How then, she pressed Alabama’s attorney, can the state be barred from considering race when deciding whether more majority Black districts should be drawn?
An excellent question, to be sure. And the kind of interrogation we should expect from a woman of such accomplishment—and with her lived experience.
Lived Experience.
The Court’s first African American Justice, Thurgood Marshall, served from 1967–1991. Early on, he wrote important majority opinions, including Furman v. Georgia (the death penalty is cruel and unusual in violation of the Eighth and Fourteenth Amendments) and Stanley v. Georgia (First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime). But the Court shifted to the right, and Marshall spent the balance of his career dissenting. He wrote in powerful language about the common person’s experience, urging the Court to understand how real lives would be directly impacted by its decisions. Marshall’s greatest contribution as a Justice, therefore, was as a minority voice—not just as one Black man on the Court, but for Black people and underrepresented minorities writ large.
Justice Marshall became the moral conscience of the Court, reminding his Brethren, the lawyers who came before him, and anyone else who would listen what the world was like for real people, working people, Black people, people they would otherwise never have known but for knowing him. Despite all that he had experienced living and working in the Jim Crow South, Marshall remained an optimist about the evolution of our democracy toward justice. He believed that one day a Black woman would take her seat on the Court to ask her own deeply relevant questions.
Advocates who stand before the Court would do well to expect more respectful yet inquisitive and incisive questioning from the Court’s newest member.
And the rest of us should not be surprised to see Justice Jackson in action.
