Yet few were prepared for Jackson adventurous beginnings in the first court session. During eight oral arguments, she dominated questions and comments, speaking twice as much as her next most talkative colleague. That’s probably a record for a new judge, according to Adam Feldman, who tracks such things for his SCOTUS Empirical Blog.
Jackson was a persistent questioner either way. His contributions ranged from sweeping — a rejection of an originalist interpretation of a color-blind Constitution that caused swoons from the liberal legal community — to the kind of mundane minutia that even Supreme Court decisions turn to.
Namely, in a case involving federal law regarding overtime pay“You are now suggesting that [Section] 601 stands out highly compensated at the 455 level, but I see this 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 pleasure to see.”
“A lot of us have argued for more diversity on the pitch, but I don’t think we expected there to be such a significant difference,” Nelson said, adding that Jackson demonstrated that the arguments orals in court are not just “performative”.
“She asks very incisive questions and demonstrates the importance of judges actively engaging with the material, the issues, the arguments and the 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 2017 debut, for example – have been criticized for being too strong. .
But a judge’s performance on the bench seems to be driven more by personality than ideology. The late Justice Antonin Scalia, an ardent conservative, so dominated the dialogue in his first session that one of his colleagues said to another, “Do you think he knows we are here?” »
The most memorable moment of Jackson’s first two weeks came in a long monologue with Alabama Solicitor General Edmund LaCour Jr. The case was whether the Voting Rights Act requires the creation of a second congressional district, out of seven in the state, where the state’s large black population would have the chance to elect a candidate of their choice.
The state argued that overreacting to race in crafting Congressional lines would bring it into conflict with the 14th Amendment’s guarantee of equal protection. Judge Amy Coney Barrett summarized what she considered the state’s argument:
“I understood you to say that you, all states, were being asked to navigate between a rock and a hard place” because “if you were forced to adopt a map proposed by the plaintiffs that was racist because race was prominent in his design…you would be violating the Fourteenth Amendment.
Barrett’s questions tested that premise, and Jackson followed suit.
“I’m so, so pleased with the clarifications from Judge Barrett,” the court’s newest judge began. So, for almost five minutes, she developed her vision of the Constitution.
“I don’t think we can assume that just because race is a consideration that it necessarily creates an equal protection issue,” Jackson said. “I understood that we looked at the history and traditions of the Constitution at what the framers and founders thought. And when I delved into that level of analysis, it became clear to me that the framers themselves They themselves had adopted the Equal Protection Clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious way.
She added: “all the interest of the [Fourteenth] The amendment was intended to secure the rights of freed former slaves.
The analysis was all the more remarkable as it was made by only the third African American to serve on the court – and contradicts the “colorblind” constitutional views of Justice Clarence Thomas, the nation’s second black judge, who sits to the right of Jackson.
It also contradicts the views of some conservatives on the text of the constitution: Carrie Severino and Frank Scaturro in the National Review called the jackson jack “false originalism”. Many analysts, as well as some of Jackson’s new colleagues, argue that the 14th Amendment puts all Americans on the same footing, and nothing more.
But Elizabeth Wydra of the Liberal Center for Constitutional Accountability said she “couldn’t have been more excited” to hear Jackson’s extended remarks; his organization put forward a similar view of the 14th Amendment.
“It’s time we heard this vision of the Constitution from the halls of the Supreme Court,” Wydra said, adding that “claiming this constitutional text in a case involving suffrage is very powerful.”
Jackson was also a frequent questioner in the very first case heard by the court, on the scope of the Clean Water Act. Restricting the question of what constitutes a statutory water body would alter the government’s regulatory power.
Addressing the lawyer who was challenging the current interpretation, Jackson asked, “You say the question is what wetlands are covered, which I agree with, but I guess my question is, why would Congress draw the line of coverage between adjoining wetlands and neighboring wetlands when the purpose of the law 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 statistics. That’s about double the approximately 5,500 words spoken by Judge Sonia Sotomayor. (Judge Elena Kagan was in third place, indicating that although the three court liberals can be outvoted in many cases this term, they will not be defeated.)
Unlike some other recent additions to the court, Jackson has had months after his confirmation to prepare for the court’s first round of arguments. Olivia Warren, a former legal assistant to Jackson while she was a trial court judge, said the judge’s questions reflected extensive preparation and an interest in making sure she understood the positions the lawyers were taking in their memoirs.
“She knows the memoir inside and out, and quotes and quotes them,” Warren said. “She is doing exactly what she said she would do during her confirmation hearing and that requires the parties to give her the information she needs to make an informed decision within the bounds of the law.”
Jackson replaced Judge Stephen G. Breyer, for whom she previously clerked. Breyer was long and his remarks from the bench were filled with speculation about the impact of the current case on the law.
Warren said Jackson, instead, viewed oral argument as a conversation.
It seems clear Jackson speaks longer 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 pleadings since the arrival of these judges.
These days, Thomas – the most senior member of the court — gets the first opportunity to ask questions, followed by a session in which other judges can intervene in their questioning. At one point, Chief Justice John G. Roberts Jr. takes turns asking each judge if he has any additional questions. Arguments that once ended quickly after an hour now consistently last much longer, sometimes more than double that.
“To the extent that other judges don’t use their opportunity to engage as deeply as she does, that’s really their prerogative,” Nelson said. While some newcomers were more deferential, “I think she didn’t come to court to adhere to protocol for no reason,” the attorney said.
Jackson is still relatively new to a judicial panel. For eight years, she ran her own courtroom as a federal district judge. During his year-long stint on the United States Court of Appeals for the DC Circuit, Jackson participated in oral argument for 17 days during a five-month span that ended when Biden l was appointed to the Supreme Court at the end of February.
His learning process at the Supreme Court began on the first day of oral argument, in the Clean Water Act case.
It has been standard court procedure in recent years that after both sides have made their case, the challengers are given the opportunity for a few minutes of uninterrupted rebuttal. But when attorney Damien M. Schiff returned to the microphone, Jackson sprang up with questions.
After further questioning, Roberts waved to a page, who handed Jackson a note. She read it and smiled.
“We’ll give you an extra minute,” Roberts told the attorney.
