When Ketanji Brown Jackson takes her place on the supreme court this summer, following her confirmation by the Senate on Thursday, it will bring to an end a painful period for US progressives, who were forced to watch Donald Trump appoint three rightwing justices under extremely contentious circumstances.
But if left-leaning Americans think that the supreme court will be dramatically recalibrated by the appointment of KBJ – as she has become affectionately known, in an echo of RBG, the late justice Ruth Bader Ginsburg – they should think again.
By replacing a fellow liberal, Stephen Breyer, she will effectively leave the current 6 to 3 conservative dominance of the court unchanged. That dominance has already been powerfully displayed in hyper-partisan rulings on voting and union rights, and is likely to be wielded again later this term when a divided court is expected to deliver a potentially fatal blow to the constitutional right to an abortion in Roe v Wade.
Jackson will for now have to live with the fact that she and her two fellow liberal-leaning justices, Sonia Sotomayor and Elena Kagan, will be lumbered with being in the frustrated minority at least for now.
Which is not to say that Jackson’s presence as the new ninth member of the nation’s highest court will be immaterial. Far from it, she will bring to the bench a wealth of real-world knowledge and a personal narrative that no other justice can match.
Top of the list of those qualities is her historic status as the first Black woman to sit on the court since its initial gathering in 1790. She will bring to deliberations the sensibility of someone whose parents grew up under Jim Crow segregation in Florida.
“Her presence won’t do much to change the court’s ideological balance at this point, but her personal story as a Black woman and her diverse legal experience will have an impact,” said Noreen Farrell, a civil rights lawyer and executive director of Equal Rights Advocates.
Farrell said that such an impact is likely to be especially apparent in criminal justice cases, given Jackson’s spell as a former federal public defender – making her the only justice in supreme court history to have represented defendants. “As someone who has represented indigent clients and people who have not always been treated fairly by the justice system, including people from communities of colour, she will give the court a new perspective.”
Court watchers have already begun indulging in the parlour game of predicting where Jackson will fall along the ideological spectrum of the court’s members. That is a perilous sport, given that justices are appointed for life and, with no one telling them how to vote, are capable of surprises.
Anthony Kennedy, who sat from 1988 to 2018, was nominated by Ronald Reagan but went on to side frequently with the liberal wing on social issues such as affirmative action, gay rights and abortion.
When the analytical site FiveThirtyEight looked at where Jackson might end up, it came up with different answers according to what data model was applied. A model devised at Washington University in St Louis put her to the right of Sotomayor and Kagan, though still to the left of the most centrist conservatives, Brett Kavanaugh and chief justice John Roberts.
A separate model created at Stanford, by contrast, predicted she would be the most left-leaning of all the nine justices.
Examinations of her past opinions as a federal district court judge for eight years and an appeals court judge since last year similarly only tell you so much. She has certainly delighted progressives with some of her judgments, most memorably her 2019 ruling rejecting Trump’s attempt to block his former White House counsel Don McGahn having to testify before Congress.
“Presidents are not kings,” she wrote.
Yet in the same year she ruled in favor of Trump and the Department of Homeland Security and against environmental groups in allowing the expansion of the wall along the border with Mexico.
Farrell believes that though Jackson will be in the minority, her meticulous style as a jurist, her long and precise opinions and legendary attention to detail will give her an outsized influence with colleagues, even the more conservative ones. “She never cuts corners, she holds herself and others to a higher standard, and that will have an influence on the language and scope of opinions.”
Perhaps the greatest advantage she brings to the court is her age. At 51 she is the youngest of all the justices other than Amy Coney Barrett, a year her junior.
That gives Jackson possibly three decades or more of service on the supreme court, over which timespan the fortunes of the liberal wing might improve. “She may not be able to change the outcome of cases immediately,” Farrell said, “but her long-term presence will be profound and we can see the soon-to-be justice Jackson taking a leadership role for years to come.”
