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Ketanji Brown Jackson, transformative justice whose impact can be limited


WASHINGTON — Justice Ketanji Brown Jackson, the first confirmed black woman on the Supreme Court, will in a way transform her. Once she replaces Judge Stephen G. Breyer, one of 108 white men who preceded her, the court will look much more like the nation it serves.

There will be, for the first time, four women on the court. Also for the first time, there will be two black judges. And a Latin.

But that new painting on the court’s large mahogany bench will obscure a simple truth: The new justice will do nothing to alter the basic dynamics of a court dominated by six Republican appointees.

However collegial it may be, regardless of its reputation as a “consensus builder” and whether its voting record will be slightly to the right or left of Justice Breyer’s, the court’s lopsided conservative majority will remain in control. Judge Jackson will most likely find herself, like Judge Breyer, dissenting in the court’s major cases on highly charged social issues.

Indeed, in an institution that values ​​seniority, the three-member liberal wing of the court is likely to lose power.

The violence of the struggle around the confirmation of Judge Jackson was therefore totally at odds with the stakes of the real work of the court, at least in the short term.

Judge Breyer will remain in the field until the end of the current mandate, at the end of June or the beginning of July. He was recently on the losing side in rulings refusing to block a Texas law that bans most abortions after six weeks and shutting down Biden administration programs meant to combat the coronavirus pandemic.

By the summer, Judge Breyer will likely write or join in dissenting majority opinions undermining or eliminating the abortion right established in Roe v. Wade, expanding Second Amendment protections for carrying guns in public and limiting the Environmental Protection Agency’s ability to fight climate change.

There is no reason to think that Judge Jackson will have any more ability to halt the court’s rightward march in the landmark cases that the court hears after the judges return from their summer break and that she take the bench.

On the contrary, she said during her confirmation hearing that she plans to recuse herself from one of next term’s blockbusters, a challenge for Harvard’s racially conscious admissions program, given her service in one of the university’s governing councils.

But she is not expected to disqualify herself from a companion case, about the admissions program at the University of North Carolina, which presents somewhat broader questions and will now become the main attraction.

There is no direct evidence from Judge Jackson’s court record as to how she is likely to approach the case. But her supporters and opponents are confident she will vote to maintain programs in which colleges and universities consider race as one factor among others in admissions decisions.

The more conservative members of the court, on the other hand, seem willing to say that the Constitution and a federal law prohibit such programs. This would represent a clean break with more than four decades of precedent.

As recently as 2016, the Supreme Court ruled that the University of Texas at Austin could continue to consider race as a factor in ensuring diversity in the student body.

In an interview shortly after the Texas case was decided, Judge Ruth Bader Ginsburg said, wrongly as it would appear, that the ruling would be the final word on the matter. “I don’t expect to see another case of affirmative action,” she said, “at least in education.”

Justice Ginsburg died in 2020 and she was replaced by the third of three appointees by President Donald J. Trump, Justice Amy Coney Barrett, creating a conservative supermajority in a court that had for decades been tightly divided.

The Texas decision essentially reaffirmed Grutter v. Bollinger, a 2003 decision that endorsed holistic admissions programs. Writing for the majority, Justice Sandra Day O’Connor said she expected that “in 25 years” “the use of racial preferences will no longer be necessary”.

If the court cancels the Harvard and UNC admissions programs in the spring or summer of 2023, as seems likely, it will exceed the deadline set by Justice O’Connor by five years.

Judge Jackson will also take part in the latest clash between religious freedom claims and gay rights, this time in a case involving a web designer who opposes the provision of same-sex marriage services. The court considered a similar dispute in 2018 in a case involving a Colorado baker, but Judge Anthony M. Kennedy’s confusing, narrow majority opinion did not resolve the fundamental problem.

Justice Kennedy retired later that year and was replaced by the more conservative Justice Brett M. Kavanaugh. The court, which has been exceptionally responsive to cases brought by religious groups and individuals, is likely to rule in favor of the web designer.

Judge Jackson also has no prior criminal record in this area, but it would be a surprise if she joined the court’s conservatives.

In the third major case already on the court’s docket for its next term, the justices will consider the role race can play in shaping voting cards. The court may have bowed its hand in February, when it temporarily reinstated an Alabama congressional map that a lower court found had diluted the power of black voters, suggesting the court was poised to becoming more skeptical of card disputes based on race claims. discrimination.

The court will hear an appeal in the same case shortly after Judge Jackson arrives. But the court order in February said there could already be five votes to pursue one of the landmark projects of the court led by Chief Justice John G. Roberts Jr., that of limiting the strength of the Voting Rights Act. from 1965.

In previous rulings, the Supreme Court effectively gutted Section 5 of the law, which had required federal approval of changes to state and local election laws in areas of the country with a history of racial discrimination, and reduced section 2 of the law, limit the ability of minority groups to challenge voting restrictions.

The Alabama case also concerns Section 2, but in the context of a redistricting. The court’s liberals disagreed when the court issued its interim order in February, and they will likely be in the same position when the court rules on the merits of the case.

As a junior member of the court, Judge Jackson will have at least two distinct responsibilities. She will be part of a committee that oversees the court cafeteria and she will open the door during private judges’ conferences when clerks are called in to deliver a forgotten item.

As for the real work of the court, judges say it can take a while to get comfortable.

“I was scared to death for the first three years,” Judge Breyer, who joined the court in 1994, said in a 2006 interview.

Estimates have not changed over time. “An intellect so extraordinary that Brandeis said it took him four or five years to feel he understood the jurisprudential problems of the court,” Judge Felix Frankfurter wrote of Judge Louis D. Brandeis, who sat at court from 1916 to 1939.

Judge Jackson is only 51 and will likely serve for decades, gaining experience and stature. The composition of the court will change in those years – four of the justices it will join are 67 or older – and its focus could as well. This could make Judge Jackson not only a revolutionary justice, but also an influential and consequential justice.

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