Ketanji Brown Jackson’s ascension to the US Supreme Court is a historic milestone.
After 233 years and 115 predecessors, she is the first Black woman elevated to the nation’s highest bench. She will assume her new duties once the court’s current term is completed in June.
Her appointment fulfilled a campaign promise by President Joe Biden, and mirrored his resolve that all Americans should be represented in the corridors of power.
For all the attention Jackson’s confirmation drew, her impact on the court’s decisions will be constrained, perhaps for many years, because of the radical rightward shift engineered by Donald Trump and Mitch McConnell.
Reactionary justices form a solid bloc committed to reshaping America. Their boldest gambit so far has been to permit a constitutional end run to circumvent abortion rights in Texas. They are expected to intensify this assault on reproductive rights in June by repealing the landmark 1973 Roe v Wade ruling. This will wind back the clock on women’s health by half a century.
Their ambitions won’t end there. Right-wing activists are lining up to attack same-sex marriage, access to birth control, voting rights, workers’ rights and the ability of the executive branch to issue rules and regulations that enable the federal government to function.
Republicans are jubilant at the prospect; Democrats are in despair.
But away from the spotlight on Supreme Court manoeuvres, a judicial revolution is in full swing. It marks the most dramatic progressive overhaul of the federal courts since the Carter administration, and has stymied McConnell’s plan to cement a conservative legal landscape for decades.
Crucial to this renewal is the composition of America’s federal courts, as established via Article III of the constitution. The Supreme Court sits at the apex. Beneath it are 13 circuit courts, and below them 94 district courts. Together they adjudicate on federal laws and constitutional challenges.
District courts are the entry point for criminal and civil matters. In the year to March 2021, more than 460,000 civil and 65,000 criminal cases were filed in district courts. Circuit courts hear appeals from the district courts. They received 46,165 filings in the same period. In a typical year the Supreme Court will hear oral arguments in about 80 cases, roughly 1% of all appeal applications it receives.
As the data show, almost every case is resolved without ever reaching the Supreme Court. The lower courts are where the rubber meets the road.
Republicans have long recognised this. It’s why they have spent the past 40 years building a networked pipeline to install ideological judges, with lifetime tenure, at all levels. In this effort they have partnered with far-right advocacy groups including the Federalist Society and the Judicial Crisis Network. Hundreds of millions of dollars from dark-money donors have financed their work. Prospective candidates are identified and nurtured from law school through clerkships, prosecutors’ offices and corporate law firms until they don judges’ robes.
McConnell was so determined to finish the job that when he took the Senate majority leader’s gavel in 2015, he blew up established conventions and implemented a blockade of president Barack Obama’s judicial nominations for the final two years of his presidency. Most infamously, he refused to permit a hearing on the nomination of Merrick Garland to the Supreme Court for more than a year. This had never happened in US history.
When Trump won, McConnell’s hardball tactics paid off better than his wildest dreams. In his solitary term Trump appointed three Supreme Court judges, as well as 54 circuit and 177 district judges. This amounted to roughly 30% at each level, and created a decisive tilt in the federal bench. Of Trump’s judges 76% were men and 84% were white. A second term would have allowed him to handpick more than half the federal judiciary.
While most observers pay little attention to these dynamics, Biden is all too aware of their impact. Having served on the Senate Judiciary Committee overseeing judicial confirmations for 32 years, including eight as chairman, he has a keener grasp of the federal judicial branch than any prior president. So his administration has instituted a confirmation conveyer belt to diversify the federal judiciary.
With the Senate split 50:50, and the midterms looming, there is no time to waste. To date Biden has confirmed 15 circuit judges and 43 district judges; 73 vacancies await, with a further 33 pending before the expiration of his term. More are likely to follow.
As with Jackson, Biden’s appointees mark a significant departure from the typical profile of previous federal judges. In the past, nominees have been predominantly white men, with standard backgrounds as prosecutors or corporate attorneys. Biden has selected more women than men, and more minority candidates than white.
His commitment to diversity focuses not only on gender and race. His candidates have also expanded the talent pool to reflect all corners of the justice system — public defenders, civil rights advocates, plaintiff and legal aid attorneys, consumer protection and labour lawyers, and legal professors and scholars. Their collective experience and perspective will influence the federal bench far beyond their judgments.
This matters because the courts are a co-equal branch of government and play a vital role in shaping society. While Supreme Court precedents and federal statutes establish boundaries for lower court verdicts, there remains ample latitude for interpretation and enforcement. It’s why Republicans have fought so hard to capture the federal judiciary beneath the Supreme Court. They know the power these courts wield.
Biden’s confirmation drive crystallises why the Democrats’ Senate victories in Georgia last year were so critical. It’s also why Democrat senators Kyrsten Sinema and Joe Manchin are essential to the Democrats’ agenda, for all the frustration and fury they have engendered at times. Without them, Chuck Schumer would not be Senate majority leader, Vice-President Kamala Harris would not have a tie-breaking vote and Biden’s judicial nominees would be stuck in limbo.
Elections have consequences. Biden’s judicial legacy will stand among his most consequential.
