Public Defender

There’s no shortage of reasons for modest optimism about Jackson’s coming tenure on the court. A public defender has never served on the court, and Jackson would reportedly be the first with any significant experience representing criminal defendants since civil rights icon Thurgood Marshall.

The specific type of work she did in the position is also notable. Jackson at one point represented four Guantanamo Bay detainees, correctly labeling their torture “war crimes,” and arguing against the George W. Bush administration’s plainly illegal policy of indefinite detention, a history that’s predictably come under unhinged attack from the Right.

Jackson has played down that work to get through confirmation, stressing she didn’t get to choose her clients, and that these were merely legal arguments she was obliged to make. But the fact that she chose to keep representing them in private practice and her statements that she was one of “many lawyers who were keenly aware of the threat that the 9/11 attacks had posed to foundational constitutional principles” and who “recognized that our nation’s values were under attack” suggest deeper sympathies. More importantly, coupled with the (at least selectively) pro–civil liberties slant of some of the court’s right-wing supermajority, it presents the slim hope of an eventual judicial check on the “war on terror” excesses of the past twenty years.

Adding to her criminal justice reform credentials, Jackson was later appointed, by Barack Obama, to the US Sentencing Commission, a federal panel advising the federal judiciary on sentencing, where she became vice commissioner. In 2011, the commission voted unanimously to retroactively apply Congress’s vote to lower the harsh and racist sentences for crack-related crimes Joe Biden had championed decades earlier, giving thousands of prisoners, most of them black, the chance to get out of jail earlier. “Justice demands this result,” she said at the time.

Jackson’s level-headed attitude toward criminal justice continued once she became a federal judge, where questions of sentencing, imprisonment, and fairness often came before her. When the pandemic struck, Jackson granted emergency and compassionate release to several prisoners whose preexisting health maladies put their lives at risk if they stayed in prison: a PTSD-stricken veteran convicted of various “inherently dangerous” weapons-related offenses, but with a record of good behavior and no other criminal history, for instance; and a fifty-five-year-old former heroin addict with a panoply of serious health problems, who wound up in jail after trying to rob a bank without a weapon.

“The obvious increased risk of harm that the COVID-19 pandemic poses to individuals who have been detained in the District’s correctional facilities reasonably suggests that each and every criminal defendant who is currently in D.C. [department of corrections] custody — and who thus cannot take independent measures to control their own hygiene and distance themselves from others — should be released,” she wrote in April 2020, a passage later also seized on by Republicans to attack her.

Elsewhere, she excoriated DC prison officials for failing to do enough to accommodate a “profoundly deaf” prisoner, who for the fifty-one days he was in custody, much of it in “abject isolation,” was never assessed to determine what assistance he would need, with staff simply assuming lip-reading and written notes were enough, and ignoring his requests for an interpreter. “Incarceration inherently involves the relinquishment of many privileges,” she wrote. “However, prisoners still retain certain civil rights, including protections against disability discrimination.”

#Resistance Hero and Union Sympathizer

Outside criminal matters, Jackson has made some notable rulings cheered by liberals. Maybe the most high-profile was her decision ordering former Donald Trump White House counsel Don McGahn to abide by a subpoena and testify to Congress, something Trump’s lawyers had tried to block. “Presidents are not kings,” Jackson wrote in a widely quoted opinion.

Jackson similarly struck a blow against Trump in 2018, when she sided with more than a dozen federal workers’ unions against three executive orders attacking their rights. Trump, Jackson said, had “exceeded his authority” by issuing the orders, which made firing federal employees easier, limited how much they could be paid for union work, and forced agencies to negotiate union contracts in less than a year, which she charged “undermine federal employees’ right to bargain collectively.”

That year, Jackson affirmed a decision ordering a company to compensate an SEIU pension fund legal costs after the fund successfully sued over a lack of pension contributions from the business, violating the union contract. Other pro-union rulings saw her again side with the same SEIU fund seeking compensation over more unpaid contributions, and order a food-service company to comply with an arbitrator’s decision over a grievance brought by a local UNITE HERE union, as per their collective bargaining agreement.

More significant was her most recent ruling: striking down an attempt by Trump’s Federal Labor Relations Authority to narrow what workplace changes were fair game for collective bargaining. Examining these and other cases, the pro-worker OnLabor blog concluded her “handful of vigorously pro-union rulings . . . suggest that she is sympathetic to labor.”

Trump’s attempt to kill the Department of Health and Human Services’ teen pregnancy prevention program midway through didn’t fare much better under Jackson, either. The judge ordered his administration to continue handling applications for the program’s grants “as if the agency had not undertaken to shorten these grantees’ federal rewards,” restoring funds to all eighty-one programs around the country. A year later, she paused Trump’s attempt to turn “expedited removal” — meaning deportation without a hearing in front of a judge — of undocumented people arrested at the border into a nationwide policy for undocumented people more generally, though that was ultimately reversed.

Generally, Jackson’s attitude to corporate power has been less tested than other matters. Still, she denied the meat industry’s attempts to block a bitterly contested food-labeling rule, which forced producers to disclose where the animals they were selling were born, fed, and slaughtered. (Congress later repealed it anyway, with the Obama administration’s enthusiastic assent). Two years later, she disappointed the grazing and timber industries by rejecting their challenge to a federal rule mandating the US Forest Service base its forest plans, which decide logging and grazing levels, on science and conservation biology.

Examining just these cases, Jackson’s record would seem to roughly fall between what Democrats and Republicans have said about her: that she’s a left-wing judicial activist who has used her position to advance the cause of social justice and the agendas of various left-leaning groups. But, of course, that’s not the whole story.

Pro-Trump Rulings and Corporate Defense

For one, Jackson has been far from an anti-Trump rubber stamp. She may have paused Trump’s fast-track deportation program in 2019, while it wound through ensuing court battles, but she did it on fairly narrow procedural grounds. In late 2020, when the question turned to fast-tracking the deportations of asylum seekers, Jackson ruled it was within the letter of the law. The programs involved gave asylum seekers a mere forty-eight hours to find lawyers and prepare for a screening, and were declared “legal black holes” by immigration advocates, with a Government Accountability Office report later determining that they mostly affected families and left them detained and in limbo for long periods of time.

It was also in 2019 that Jackson gave Trump a victory on the question of waiving environmental laws to build Trump’s border wall, something environmental groups warned would slice through natural monuments and wildlife refuges. Not surprisingly, her decision was rooted in the legal text, which had been specifically written to allow the attorney general to circumvent environmental laws and to put limits on judicial review.

It’s not the only time Jackson frustrated environmental groups. In 2013, she denied their bid for an injunction on Enbridge’s Flanagan South tar sands pipeline, approved through a fast-track “general permit” that avoided an environmental impact statement and public comment. In this case, her decision that the pipeline didn’t need extensive environmental reviews and that it wasn’t clear “irreparable harm will result” from its construction seemed based more on her gut than legal text.

Jackson denied that the groups’ “bald allegations” established the pipeline would “have a significant or substantial impact on the wildlife in the pipeline’s path,” asserting the evidence instead “suggests that the environmental impact of the pipeline may be minimal.” She charged that “analogizing this project to other pipelines” was not enough to demonstrate harms — despite numerous high-profile spills at the time, including the disastrous Kalamazoo spill that came from one of Enbridge’s very lines — and, pointing to the “major resources” the company had put into the project, decided that Enbridge would lose more in the “balance of harms.”

Two years later, she twice struck a blow for the Obama administration’s industry-friendly poultry inspection reforms, which slashed the number of inspectors, restricted them to doing only visual inspections, and gave company employees a bigger role in the inspection of their own product. The first time, Jackson rejected Food & Water Watch’s challenge on the basis they had only a generalized grievance that didn’t provide enough standing to bring the case. She also dismissed the affidavits from current and former inspectors about the harm that would come from the policy as mere “anecdotes and speculation.”

The second time, when the challenge was brought by the union the inspectors belonged to, Jackson again denied the argument that the rules would harm union members and consumers by putting more contaminated chicken on the supermarket shelves gave them standing to sue. To back this up, Jackson cited two cases: a hugely influential Antonin Scalia–authored decision from 1992 that sharply narrowed the concept of standing and a lawsuit brought by hard-right ex–Maricopa County sheriff Joe Arpaio, who dubiously claimed programs like Deferred Action for Childhood Arrivals (or DACA) harmed him because he had been on the receiving end of threats over his hostility to immigrants. (Somewhat ironically, a higher court that later dismissed Arpaio’s case lamented the modern courts’ fixation on standing, and that it “too often stifles constitutional challenges.”)

In 2017, it was the Center for Biological Diversity’s turn to be disappointed at Jackson’s hand when it sued the Department of the Interior to finish the environmental review it had started over the Deepwater Horizon oil spill, which more than six years later was still going. Jackson ruled against the organization on an excessively pedantic reading of the law: “The command in the regulation is that agencies ‘shall continue to review’ their NEPA procedures, which does not plainly indicate that agencies must complete any such review . . . and in fact, suggests the opposite,” she wrote. In Jackson’s reading, the purpose of an environmental review was simply to do a review for its own sake, continuously and forever.

Jackson’s history of pro-business decisions has gone almost entirely undiscussed, despite the centrality of growing corporate power in both today’s political discourse and its role in virtually every major problem plaguing the United States. In fact, neither Democrats nor Republicans even bothered to question her on the topic at her confirmation hearings, despite both parties trying to rebrand themselves as anti-corporate populists in recent years.

But the decisions may be explained by Jackson’s lengthy experience in corporate law. As she’s disclosed to the Senate Judiciary Committee, her typical clients in private practice have been “United States corporations, corporate executives, and nonprofit organizations,” or “large corporations facing mass tort liability.” According to Jackson, she worked for those clients on matters like “federal securities fraud allegations, personal injury claims,” on “defense of corporate employment discrimination and retaliation claims,” and she “advised client corporations regarding trust payment structures for resolving mass-tort liability, such as asbestos claims.”

Even though Jackson spent more than twice as long as a corporate lawyer than a public defender, Google “Ketanji Brown Jackson corporate lawyer” today and the first page will turn up only articles discussing her time as a public defender — and about how refreshing that is for a Supreme Court stocked with prosecutors and corporate lawyers.

No Wokeness Detected

Something similar happened in the areas of discrimination and criminal justice, where Jackson’s actual record bears no resemblance to the lazy caricature conjured up by the GOP — but also butts up against the image Democrats have painted of her.

For all the Right’s attempts to cast her as a woke crusader shoehorning critical race theory into the judicial system, the list of Jackson’s rulings is replete with dismissals of discrimination suits. In fact, when Reuters reviewed twenty-five racial discrimination cases decided by Jackson, she had ruled in favor of the plaintiff in only three — and ruled against nineteen of the twenty-two black plaintiffs.

Here’s Jackson ruling against a plaintiff, unconvinced they had actually suffered an “adverse employment action.” Here she dismisses a suit because the plaintiff both didn’t exhaust administrative remedies before going to court and because some of his claims “lack sufficient allegations of fact.” Elsewhere she rules against someone claiming sex and race discrimination because she didn’t “cite any evidence in support of this contention” or “identify the alleged similarly situated ‘Caucasian counterparts’ who were supposedly treated better.” That doesn’t mean there aren’t also cases where Jackson sides with the person claiming discrimination.

Some rulings were more controversial than others. In one 2017 decision, Jackson refused to let 5,500 black employees of Lockheed Martin file a class action discrimination suit against the weapons manufacturer, saying there wasn’t enough of a common thread tying the different experiences of discrimination together. She cited another Scalia-authored opinion, the 2011 Supreme Court dismissal of a massive gender discrimination suit against Walmart that has since drastically reshaped the landscape for such cases in favor of the employer.

Jackson’s ruling in that case prompted U. W. Clemon, Alabama’s first black federal judge, to take the extraordinary measure of writing to Biden urging him to pick another candidate, saying the ruling “is a bell sounding the alarm that if Judge Jackson is appointed to the Supreme Court, simple justice and equality in the workplace will be sacrificed.”

Likewise, the GOP’s attempts to paint Jackson as a criminal-coddling radical don’t stand up to scrutiny. It’s not hard to find examples of Jackson handing out lengthy sentences: a man with a history of bank robberies sentenced to eight years for a pair of holdups; four years in prison for a man who entered a pizza restaurant with an assault rifle and shot a door; ten years and ten months for a man convicted of dealing large amounts of crack and powder cocaine.

In one case, she dismissed a man’s attempt to be released before trial because “his criminal history involving crimes of dishonesty” made him a flight risk. Republicans made hay out of a lenient sentence she gave to a nineteen-year-old in a child pornography case, ignoring the specific, contextual reasons unique to that case that informed Jackson’s decision. But they fail to bring up the five years’ jailtime and ten years’ supervised release she sentenced a Pennsylvania man to for the same crime, for example.

Republicans have similarly tried to use her statement that the onset of the pandemic means “every criminal defendant” in the DC prison system “should be released” against her. What they leave out is the rest of that statement: that “the judiciary is limited in the steps that it can take to respond” to concerns about COVID because courts have to make “an individualized assessment of a detained person’s flight risk and dangerousness prior to such person’s release into the community,” and take into account that “the act of releasing dangerous and/or potentially non-compliant criminal defendants into the community itself poses substantial risks to . . . the public at large.” Jackson denied a prisoner emergency release in that very opinion, as she did in a number of other cases, owing to the particular, unique conditions of each prisoner.

This isn’t to say Jackson is some kind of tough-on-crime crusader. Rather, her rulings suggest a case-by-case approach carefully balancing compassion against risk.

Excessive (Defense of) Force

At the same time, several of Jackson’s rulings go in the opposite direction, expressing undue deference to law enforcement in a way that might surprise those who have waded through the wave of assurances about her progressive credentials.

In one 2013 case, Jackson ruled against a man, Dale Page, who charged the DC Metropolitan Police Department had violated his constitutional rights. After being assaulted and calling the police, Page’s assailants ran him over and knocked him unconscious, only for the arriving police officer to arrest him, before sending him to prison, where he was subjected to a strip search, following his release from the hospital — before, after release, being resent to prison and strip searched a second time. Despite a 911 dispatcher recording Page’s call when he was hit and the existence of an eyewitness, Jackson ruled the officer was entitled to qualified immunity in the case, since “a reasonable officer could have found probable cause to arrest Page under the circumstances presented.”

Another case three years later saw police assault an innocent woman, Shalonya Kyle, while they were responding to a noise complaint at a party. When police got into an altercation with her boyfriend, who had moved to leave the house after the officers had gotten into a separate altercation with someone else, Kyle had put herself between the two and tried to ward her boyfriend away, only for the officer to pepper-spray him. When the two tumbled outside, the policeman shoved Kyle away, landing her in a barbecue grill that gave her second-degree burns. Though Kyle had never touched the officer, he ordered his colleagues to arrest her, after which she was charged with two counts of assault on a police officer.

Among the reasons Jackson decided the officer was still entitled to qualified immunity were that his “single shove” effectively wasn’t egregious enough of a violation, and that there was no evidence he meant to push Kyle into the grill or that he was aware of the grill. In fact, Jackson charged the officers couldn’t even be hit with a false arrest, since by “impeding” the policeman, Kyle could reasonably have been construed as having committed an assault on an officer.

“Although Kyle did not touch [the officer] at all, she was certainly a part of the ensuing commotion once [he] deployed his pepper spray,” Jackson wrote. “Kyle had deposited herself in the midst of the melee, and her actions at the very least had the effect of physically blocking [his] access to [her boyfriend].”

But maybe the most shocking is a case from the same year, brought by the sisters of a severely intellectually disabled twenty-nine-year-old man that DC police had entrapped, asking him to lead them somewhere they could buy drugs, and then instructing him to buy some for them. The man, Kevin Witherspoon, was subsequently arrested, before officers allegedly filed a police report that left out mention of his disability, and he was placed in the general population of the prison where he was violently threatened and injured. Despite the fact that Witherspoon was evaluated as having the academic level of a kindergartner — unable to name which continent he lived on and believing Obama had freed the slaves — the officers claimed they noticed nothing unusual about him.

The officers’ actions were so outrageous, one retired narcotics officer called it “unprofessional, unethical, inappropriate, and totally wrong.” Yet Jackson wrote they couldn’t be guilty of “state endangerment” because Witherspoon hadn’t suffered any emotional or physical injury during the drug purchase — he had only been exposed to a dangerous situation. And besides, she wrote, “it was Witherspoon himself who guided them there and exposed them to that danger.” Jackson went on to deny that the officers’ conduct met the legal threshold of “shock[ing] the contemporary conscience.”

“Even if Defendants’ use of Witherspoon (an intellectually disabled individual) to conduct a buy/bust operation was unethical,” she wrote, “it was not so outrageous under the circumstances presented here as to shock the conscience and violate substantive due process.” Jackson’s conscience must be made of sterner stuff than most.

Not surprisingly, Jackson was strongly backed by law enforcement despite the GOP’s smear campaign, drawing the support of the International Association of Chiefs of Police, the president of the Fraternal Order of Police, and sixty-three police chiefs and other top law enforcement officials. Jackson’s actual record of rulings would explain this, but despite being not even two years removed from the largest mass protests in US history, specifically over the chronic blight of police brutality, this record has gone almost entirely undiscussed.

Asymmetrical Warfare

Jackson’s record is a mixed bag. Her position on post-9/11 excesses and pro-union rulings are certainly reasons for optimism, as is her work on reducing harsh sentences and some of her rulings in prison cases. But Jackson has also shown excessive deference to business arguments and right-wing precedent in key cases, and her defense of qualified immunity for abusive police has been at times shocking.

We can’t know how closely this will predict what she does on the Supreme Court. But the public hasn’t been served by an increasingly tribal political discourse that’s offered them two competing, reductive caricatures of Jackson, largely avoiding substantive issues like her history of rulings, leaning instead on declarative platitudes in one direction or another. As significant and salutary as her time as a public defender is, the fact that it’s been used to entirely erase her much longer tenure as a corporate lawyer says it all.

The Democrats have picked a well-qualified judge with law enforcement sympathies who appears to let textual readings, not politics, guide her decision-making. Jackson seems far from the kind of fire-breathing ideologues the GOP has taken to stocking the immensely powerful court with over the past decades. Time will tell, but that may well be the problem.