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Judge Jackson is now a judge-in-waiting

The last three justices to join the Supreme Court did so while its term was already underway, forcing them to scramble to catch up. Judge Ketanji Brown Jackson will face the opposite problem: a long period of time in which she finds herself in an unusual twilight space as a judge-in-waiting.

His status is the result of Justice Stephen G. Breyer’s early and conditional announcement of his retirement and the swift action of Senate Democrats who fear taking risks to confirm his successor given the tightly divided chamber.

The last member of the court to announce his retirement, Judge Anthony M. Kennedy, did so on June 27, 2018, which was the last day in office. He said he would step down next month whether his replacement was confirmed or not. As it happens, his successor, Justice Brett M. Kavanaugh, did not take his seat until October 6 of that year, when the next term was underway.

Judge Breyer announced his own plans on January 27. “I intend for this decision to take effect,” he wrote, “when the court rises for summer vacation this year (usually late June or early July) assuming that by then my successor will have been named and confirmed.

This means that Justice Jackson, who ceased to participate in the work of the court of appeals when she was appointed, will be an interested spectator as the Supreme Court delivers its major decisions in the months to come, including those on abortion and firearms. She will have time to hire paralegals and consider the role for the next term.

But she won’t take the required judicial oath and won’t officially join the Supreme Court until Judge Breyer’s job is done.

According to the Supreme Court’s website, there have been a handful of cases in which new justices were confirmed before retirees ended their service. But the months that Judge Jackson will spend on the sidelines seem to set a record.

She won’t sit until the court returns from her summer break in October, but she will likely be rested and well-prepared for the next term, which will include major cases on affirmative action, voting and gay rights. .


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