Ketanji Brown Jackson’s first months on the Supreme Court are broken


Jackson Supreme Court Justice Ketanji Brown has entered an institution of isolated chambers and archaic procedures. It is also a place that has lost public trust. So, as he navigates the corridors of the cloister, he will have to see his way through the ongoing debate about the institution’s legitimacy.

In some respects, Jackson begins the new session on Monday with advantages that his predecessors lacked. He moved into his newly painted spacious rooms a few weeks ago. He had the summer to bone in cases. And among his staff, he has hired a lawyer who previously served the late Justice Ruth Bader Ginsburg.

Jackson, 52, who will be sworn in on Friday, officially took his seat on the nation’s high court in June and was able to begin hearing cases for the 2022-23 session.

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The three previous nominees – Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch – sat out because their cases were ongoing and they had little time to face difficult votes. Barrett and Kavanaugh were confirmed in October 2018 and 2020, respectively, after oral arguments began, and Gorsuch was seated in April 2017.

Once in a routine, judges say it can take years to build trust.

“I think it takes three to five years,” Stephen Breyer, who succeeded Jackson, said in a CNN interview last year. “Justice (William O.) Douglas said three years, (David) Souter thinks it’s five. … I was pretty nervous for at least the first three years, and maybe a little more… Can I really do this job? And then you start to absorb the customs of the organization.’

Those habits exist in an atmosphere different from the Supreme Court, which can be troubling, given his experience on lower federal courts (as Jackson had for nine years) or as Supreme Court clerk (as Jackson and five other current justices). they were early in their careers).

And here’s a new twist: Last session’s decision that reversed nearly half a century of abortion rights and reversed precedent, the court’s public approval has plummeted.

A new Gallup poll shows a high number of people, 58%, said they disapproved of the job the Supreme Court was doing.

Justices have made public their conflicting views on these numbers and whether the court’s legitimacy can be called into question, as tensions have escalated. This week, Justice Samuel Alito warned of “criticism that crosses an important line.”

Jackson has not commented on the simmering issue and has no scheduled speeches for the remainder of 2022.

His past judicial record would align with liberal Justices Elena Kagan and Sonia Sotomayor, who last year cited the “stink” of politics permeating the court.

But it is not known how Jackson will explain the ideological and partisan divide in public.

It’s hard to know, more broadly, how Jackson might interact with his colleagues beyond the friendliness he displayed during Senate confirmation hearings last spring. He practiced solo for eight years as a federal court judge in Washington, DC. His few months on the US appeals court for the D.C. Circuit, hearing cases on three-judge panels, didn’t test the fact that he was sitting on every case with eight colleagues.

At first, one of the most daunting tasks is sifting through the hundreds of appeals (known as petitions for certiorari) received each week from people who have lost cases in lower courts.

Jackson has joined the “cert pool,” whereby the judges’ law clerks come together to review these petitions and write briefs for oral argument or outright denials of cases.

The justices take less than 1% of the cases that come, and they decide only about 60 in each session of the year. Justices primarily look for cases where lower courts have issued conflicting decisions (trying to resolve those conflicts) or cases that test the reach of federal power.

Cert pooling began in the 1970s as a way to lighten the court’s workload, and not all courts have joined in these years. Some justices felt it would add a layer of bureaucracy or lead to manipulation of the review process. For example, Justice John Paul Stevens, who served from 1975 to 2010, never entered the pool.

For the most part, however, judges have joined the pool over the years, including Roberts, who was a member when he clerked for then-Associate Justice William Rehnquist in 1980 and 1981.

Gorsuch is the recent exception. He made the opposite choice, and after a few years of participating in the pool, Alito has also taken it out.

Most new justices try to get at least one former clerk, and among the four clerks Jackson has hired for his first term is Michael Qian, who worked for Ginsburg during a tumultuous 2019-2020 term that was Ginsburg’s last. Two other Jackson clerks served with him when he was a district court judge.

Kagan, who had not served on any bench prior to her 2010 appointment to replace Stevens, recently described at a judicial conference in Big Sky, Montana, three clerks with prior experience, Ginsburg, Breyer and the now-retired chamber. Justice Anthony Kennedy. He said he depended on them, to a point.

Whenever he had to make a decision about an internal procedure, he would inevitably get three “completely different” points of view. “So I kind of listened, and I would say to them: ‘Why don’t we do that’. … Sometimes I would be happy with my choice, and sometimes we did it this way, and I thought: that’s the worst way to do things.”

Seniority prevails in the Supreme Court. In the justices’ private conferences, in an oak-paneled room across from Roberts’ chambers, the justices continue in rank order as they offer their opinions on cases, starting with the chief justice.

In addition to speaking ninth, Jackson also has the role of taking notes of the proceedings. (No one other than nines is allowed in these sessions.) If someone knocks on the door to deliver a book, a document, or a pair of forgotten reading glasses, it’s up to Jackson to answer the door, too.

His first session of oral arguments will take place on Monday, and he will take a seat at the end of the bench, to the far left of the chief justice, next to Kavanaugh. Barrett will now be on the far right of Roberts. (Justices sit on the mahogany bench in alternating order of seniority: the more mandates, the closer to the chief justice, on the central bench, a justice moves).

In the past, some new justices have held off on oral arguments, waiting to make sure the senior members could get their questions answered. This has reflected personal style, more than any ideology. Gorsuch, as well as Ginsburg, who served from 1993 to 2020, jumped in early and often, while Alito, who joined the court in 2006, initially asked few questions.

At first, Alito also had trouble with the microphone in front of him, sometimes accidentally hitting it with his hand or hitting his head. “It’s on its way,” he told me about the microphone’s placement in its first few months. “Then you can’t press when you nod. It’s a bit awkward.’ Alito leaned close to the chair. Now he sits back a little.

Beyond new models for justices to review cases, a delicate dynamic can arise in extracurricular matters between nines when a new justice arrives. Roberts himself told C-SPAN in 2009 that the arrival of a new justice could be “worrisome,” and in 2017, he and Gorsuch fell out in a series of initial clashes, including over Gorsuch’s decision to skip a session of private judges, confirming and soon , for a previously planned commitment.

In the early 1980s, after Sandra Day O’Connor, the first female justice, joined the bench, she inadvertently angered Justice Harry Blackmun by placing herself in a small private library of judges.

Blackmun was the only justice to use private rooms at the time, and once O’Connor started using it, the sometimes-scruffy Blackmun made sure he and the other justices knew it was considered trespassing.

But such complaints eased over time. The justices, all appointed for life, often talk about learning to live with each other.

Breyer succeeded Blackmun in 1994. Asked this week if his predecessor had any advice at the time, Breyer replied: “Justice Blackmun said to me, ‘You’re going to find it a routine task.’