The Supreme Court Nomination of Judge Ketanji Brown Jackson: Initial Observations

Legal Sidebari

The Supreme Court Nomination of Judge

Ketanji Brown Jackson: Initial Observations

February 28, 2022

On February 25, 2022, President Joe Biden announced the Supreme Court nomination of Judge Ketanji

Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). If

confirmed, Judge Jackson would fill the vacancy left by the upcoming retirement of Associate Justice

Stephen Breyer, whose jurisprudence is discussed in another Legal Sidebar. This Sidebar provides initial

observations about Judge Jackson based on decisions she issued while serving on the federal bench.

Who Is Judge Jackson?

Judge Jackson currently serves on the D.C. Circuit, having been appointed to that position in June 2021.

Previously, she served on the U.S. District Court for the District of Columbia since 2013. If confirmed to

the Supreme Court, Judge Jackson would be the first Black woman, and the sixth woman overall, to serve

on the High Court.

Judge Jackson received a B.A. from Harvard University and a J.D. from Harvard Law School. She

clerked for three federal judges, including Justice Breyer on the Supreme Court, whom she described as

an exemplary Justice during remarks on her nomination. Judge Jackson has experience in both private

practice and public service. She worked at several law firms; most recently, from 2007 to 2010, she

practiced appellate litigation with Morrison & Foerster LLP in Washington, D.C. From 2005 to 2007, she

served as an Assistant Federal Public Defender in Washington, D.C. Her criminal defense experience is

rare among recent Supreme Court nominees: if confirmed, she would be the first Justice since Thurgood

Marshall to have spent significant time as a criminal defense attorney. Judge Jackson also served as Vice

Chair and Commissioner of the U.S. Sentencing Commission from 2010 to 2014, and previously worked

for the Commission as Assistant Special Counsel from 2003 to 2005. She would be the second Justice,

after Justice Breyer, to have served as a Commissioner.

What Would Judge Jackson’s Appointment to the Supreme Court Mean?

Although a Supreme Court nominee’s prior judicial decisions, writings, and statements may provide some

insight into how she will approach future cases, it is difficult to predict with certainty how a nominee

might affect the Court’s jurisprudence if confirmed. The Supreme Court often confronts novel legal

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questions that may differ substantially from any a nominee has previously considered. In addition, history

provides multiple examples of Supreme Court Justices whose decisions on the High Court surprised

observers familiar with their pre-confirmation reputations. Moreover, the political ideology of the

President who nominates a Supreme Court Justice may be an unreliable indicator of how that nominee

will approach future cases. A judge may adhere to a judicial philosophy that sometimes yields decisions

that differ from the judge’s perceived political ideology, and there are areas of law where the Court often

does not split along perceived partisan lines.

This uncertainty is especially pronounced when evaluating Judge Jackson because she has spent most of

her judicial tenure as a district court judge. There are several reasons why it may be difficult to distill a

nominee’s judicial philosophy from district court decisions. First, district courts are generally more

constrained by precedent than the Supreme Court and the courts of appeals, which may lead district court

judges to issue decisions that are different from those they might have reached if they were not so

constrained. Judge Jackson noted during her district court confirmation process that, because of their

different role, district court judges, unlike Supreme Court Justices, do not develop “broader legal

principles to guide the lower courts,” and thus may be less likely to “develop substantive judicial

philosophies” to aid them in this task. Second, district courts, again unlike the Supreme Court, consider

many cases that are legally straightforward, such as claims requiring the application of settled law as well

as frivolous claims by unrepresented parties. Third, district courts confront many issues that—while

important to litigants—may not be relevant to the work of a Supreme Court Justice. Trial court judges

take an active role in case management throughout the life of a case, rendering procedural decisions and

resolving factual disputes that are often not central to appeals.

How Does Judge Jackson Approach Legal Decisionmaking?

Judge Jackson has issued hundreds of judicial decisions during her time on the federal bench, including

well over 500 opinions as a district court judge. As of the date of publication, Judge Jackson also authored

two appellate court decisions, having served on the D.C. Circuit prior to her nomination for less than nine

months. This body of judicial decisions may illuminate how Judge Jackson might approach cases on the

Supreme Court if confirmed, subject to the caveats discussed above. The following sections provide

initial observations on Judge Jackson’s jurisprudence on selected legal issues.

Constitutional Interpretation

Judge Jackson has resolved relatively few cases involving open constitutional questions, offering

somewhat limited insight into what mode of constitutional interpretation she might follow in future cases.

During her D.C. Circuit confirmation hearing, the nominee suggested she would approach constitutional

interpretation by looking to the text and its original meaning, following the Supreme Court’s lead.

Likewise, during her earlier district court confirmation, she stated she does not agree with a “living

Constitution” approach, saying instead that, while “courts must apply established constitutional principles

to new circumstances, . . . the meaning of the Constitution itself does not evolve.”

The constitutional issues Judge Jackson confronted as a district court judge largely involved relatively

settled precedent from the Supreme Court or lower courts, and did not require her to engage in novel

constitutional analysis. For example, in a case raising a First Amendment challenge, the nominee applied

the Supreme Court’s general rulings on laws regulating speech, and other federal courts’ more factspecific rulings on similar laws, to hold that the plaintiffs plausibly alleged that a panhandling ordinance

was constitutionally invalid. In another case, Judge Jackson relied on precedent from other federal courts

to dismiss a civil rights claim arising from an allegedly wrongful arrest. As another example, in Patterson

v. United States, the nominee held that a person arrested by the U.S. Park Police for using profanity in a

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public park sufficiently pled a violation of his constitutional rights, because the law clearly established

that, under the circumstances, his arrest violated the First and Fourth Amendments.

A few cases required a more significant analysis of existing precedent. In American Meat Institute v. U.S.

Department of Agriculture (USDA), for instance, Judge Jackson rejected a free speech challenge to a

USDA rule requiring “country-of-origin labeling” for certain commodities. The nominee had to determine

which of two lines of Supreme Court precedent governed review of the commercial disclosure

requirement at issue. Ultimately, she upheld the regulation after concluding that the more lenient standard

applied. Judge Jackson’s district court ruling in this case was affirmed by a three-judge panel of the D.C.

Circuit; the First Amendment ruling was later confirmed by the D.C. Circuit sitting en banc.

Statutory Interpretation

Justice Jackson has written that “the North Star of any exercise of statutory interpretation is the intent of

Congress, as expressed in the words it uses.” Interpreting statutes as a district court judge, Judge Jackson

was often bound by prior Supreme Court and D.C. Circuit cases, but at times also engaged in original

statutory construction. Like most modern judges, Judge Jackson has stressed the primacy of the law’s text

and structure in statutory interpretation. She has, for example, relied on a statute’s “plain language” and

engaged in close readings that, for example, stressed the significant differences between the words

“assure” and “ensure,” or Congress’s use of a specific verb tense. She has also looked to established

canons of construction, such as the principle that no statutory language should be rendered superfluous.

The nominee has sometimes taken a purposive approach to statutory interpretation, asking what outcome

a “rational legislature” would have sought and whether a particular interpretation serves Congress’s

purpose. Accordingly, in one case, she enjoined portions of executive orders she decided reflected “a

decidedly different policy choice” from the one Congress expressly adopted.

Where textual tools do not provide a complete or definitive answer, Judge Jackson has shown a

willingness to consider other possible sources of statutory meaning. Like Justice Breyer, Judge Jackson

has sometimes looked to legislative history to help determine the meaning of ambiguous language. In one

of her few opinions for the D.C. Circuit, Wye Oak Technology, Inc. v. Republic of Iraq, Judge Jackson

disagreed with a sister circuit’s interpretation of the Foreign Sovereign Immunities Act (FSIA). Wye Oak

concerned the government of Iraq’s claim of sovereign immunity in a contract dispute with an American

defense contractor. The case initially proceeded in Virginia federal court and before the U.S. Court of

Appeals for the Fourth Circuit (Fourth Circuit), which denied the sovereign immunity claim, applying an

FSIA exception for claims arising from certain commercial activities. Following transfer and a subsequent

appeal to the D.C. Circuit, Judge Jackson authored a panel decision concluding the D.C. courts were not

bound by the Fourth Circuit’s ruling. Looking to the FSIA’s text, judicial precedent, and legislative

history, the court held the Fourth Circuit improperly applied the FSIA exception. However, concluding

that another clause of the commercial activity exception might apply, the D.C. Circuit remanded the case

to the district court for further consideration.

Judge Jackson’s first of several opinions in Alliance of Artists and Recording Companies (AARC) v.

General Motors also provides a useful illustration of her approach to statutory interpretation. There, Judge

Jackson confronted a narrow but complex question of statutory interpretation arising from the Audio

Home Recording Act, which requires manufacturers and distributors of “digital audio recording devices”

to implement certain technologies and pay per-device royalties to the AARC. At issue in the case was

whether in-vehicle systems produced “digital audio copied recordings” by reproducing a “digital music

recording.” Based on the nominee’s examination of the statute’s plain text, dictionary definitions,

statutory context, and the statute’s legislative history, she ruled that a digital audio copied recording is a

digital musical recording. After further proceedings in the case, she granted summary judgment in favor

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of the auto manufacturers. On appeal, the D.C. Circuit affirmed the grant of summary judgment, citing

Judge Jackson’s analysis favorably in several instances.

Administrative Law

The D.C. federal courts have an “outsized role” in administrative law, with cases involving executive

branch authority comprising a significant portion of their dockets. Judge Jackson’s district court opinions

reflect that focus, with a number of opinions considering the application of the Chevron doctrine—under

which courts review agencies’ interpretations of statutes they administer—and the Administrative

Procedure Act (APA), which generally governs judicial review of agency action.

A threshold question in many cases reviewing agency action is whether the action is subject to judicial

review. This consideration, similar to Chevron deference, implicates the relative roles and expertise of the

courts and the political branches. In Center for Biological Diversity v. Zinke, Judge Jackson dismissed a

lawsuit seeking to compel the Department of the Interior to complete an assessment of its environmental

review policies. The nominee concluded the governing statutes did not authorize courts to grant such

relief, saying that “courts do not, and cannot, police agency deliberations as a general matter.” In her

view, “meddling in an agency’s tentative, internal deliberations absent a clear-cut legal mandate to do so

risks upsetting the balance between the judicial and administrative functions that Congress struck in the

APA.”

Judge Jackson reached different conclusions in two cases that posed the question of how much discretion

Congress had given to agencies. In one case, she held that the Coast Guard’s decision to impose certain

conditions on the release of a foreign-flagged vessel was nonjusticiable as an issue Congress intended to

commit fully to agency discretion. In a different case, by contrast, the nominee held that the Department

of Homeland Security violated procedural requirements when it announced it would expand the use of

expedited removal—a streamlined immigration removal process typically employed against persons

encountered at the border unlawfully entering the United States—to unlawful entrants in the interior of

the United States who had been present in the country for less than two years. That decision was reversed

on appeal when the D.C. Circuit concluded the matter had been “committed to the Secretary’s ‘sole and

unreviewable discretion.’”

Administrative law cases often involve close questions of statutory interpretation that ask whether an

agency has complied with governing law. In district court cases involving a variety of factual

circumstances, Judge Jackson invalidated agency action as exceeding the authority Congress granted. In a

2014 case, for instance, she ruled that the U.S. Food and Drug Administration acted improperly when it

refused to recognize that a drug was entitled to a marketing exclusivity period—a result that, in her view,

the statute unambiguously required. In a more recent case, Kiakombua v. Wolf, Judge Jackson vacated

portions of a 2019 U.S. Citizenship and Immigration Services manual governing credible fear

determinations used by immigration authorities to assess whether asylum claims of persons placed in

expedited removal might be subject to further review. She believed that portions of the manual were

“manifestly inconsistent with the two-stage asylum eligibility framework” established by the governing

statute, and other portions were “unreasonable interpretations of the . . . statutory scheme.”

Judge Jackson’s first opinion for the D.C. Circuit, American Federation of Government Employees, AFLCIO v. Federal Labor Relations Authority (FLRA), similarly invalidated an agency action. That case

involved a challenge to an FLRA policy statement limiting the circumstances under which changes to

working conditions would require covered federal employers to engage in collective bargaining with their

employees’ representatives. In an opinion for a three-judge panel, Judge Jackson held that the FLRA’s

decision to raise the threshold for collective bargaining violated the APA’s arbitrary-and-capricious

standard, concluding the FLRA’s “cursory policy statement” was insufficient to “justify its choice to

abandon thirty-five years of precedent” that was contrary to the newly adopted threshold.

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In other cases, Judge Jackson upheld agency interpretations of their governing statutes when she

concluded those interpretations were reasonable. For instance, in American Meat Institute v. USDA,

discussed above, the nominee held the plaintiffs likely could not show that the governing statute

implicitly precluded the agency’s interpretation of the relevant labeling laws.

Federal Court Jurisdiction and the Constitutional Separation of Powers

One issue that may be of particular interest to Congress is Judge Jackson’s approach to cases implicating

the constitutional separation of powers. In several cases, Judge Jackson considered whether a plaintiff’s

claim was justiciable—that is, capable of resolution in federal court. The doctrine of justiciability

considers the proper role of courts in the United States’ constitutional system. Perhaps the most

significant of these cases is Committee on the Judiciary v. McGahn. In that case, the executive branch

claimed that former White House Counsel Donald McGahn had absolute immunity from compelled

congressional testimony, in part because the Constitution required that dispute to be resolved “in the

political arena” rather than in courts. Judge Jackson rejected that contention, holding that issues such as

the validity and enforceability of a congressional subpoena presented “straightforward, fully justiciable

questions of law.” Although as a historical matter, courts rarely resolved interbranch information disputes,

Judge Jackson concluded this history did not demonstrate courts’ infirmity in these matters, but merely

reflected the fact that the executive branch had “wisely picked its battles.” McGahn received extensive

consideration in the D.C. Circuit, which ultimately reached the same conclusion as Judge Jackson

concerning Article III standing, before dismissing the appeal at the request of the parties following

McGahn’s testimony.

Judge Jackson reached the opposite conclusion concerning justiciability in Mobarez v. Kerry. There,

American citizens and lawful permanent residents sought to compel their evacuation from Yemen. Judge

Jackson stated that their claims concerned a foreign affairs function the Constitution committed to the

President’s discretion; the President’s exercise of that discretion was a non-justiciable political question.

Judge Jackson again confronted an interbranch information dispute in Trump v. Thompson, a D.C. Circuit

case that has received particular attention from commentators. In that case, Judge Jackson was a member

of a three-judge panel that considered a request for certain presidential records made by the House Select

Committee to Investigate the January 6th Attack on the United States Capitol. Former President Trump

claimed that some of the records were subject to executive privilege; however, President Biden declined

to invoke executive privilege to withhold the documents. Responding to former President Trump’s

request for an injunction barring disclosure, Judge Jackson joined an opinion denying the request and

holding that “former President Trump has provided no basis for this court to override President Biden’s

judgment and the agreement and accommodations worked out between the Political Branches over these

documents.” The Supreme Court declined to pause the D.C. Circuit’s decision pending appeal and

ultimately denied the petition for a writ of certiorari, allowing the appeals court’s decision to stand.

Judge Jackson’s district court tenure also required her to decide whether Congress had by statute

foreclosed district courts from considering particular claims. In addition to the administrative law

decisions discussed above, another example is American Federation of Government Employees, AFL-CIO

v. Trump, involving a challenge to certain executive orders relating to the federal civil service and

collective bargaining rights. Judge Jackson said the case implicated fundamental separation-of-powers

principles relating “to the power of the Judiciary to hear cases and controversies that pertain to federal

labor-management relations; the power of the President to issue executive orders that regulate the conduct

of federal employees in regard to collective bargaining; and the extent to which Congress has made policy

choices about federal collective bargaining rights that supersede any presidential pronouncements or

priorities.” In resolving the roles and powers of the three branches in this dispute, the nominee held that

Congress had not precluded federal court jurisdiction over the claim. As one of several factors leading to

this conclusion, Judge Jackson noted that if the claims were sent to administrative review, the plaintiffs

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would have no meaningful judicial review of their claims in the D.C. Circuit. She also observed that while

the President possesses some inherent authority to act in the field of federal labor-management relations,

the exercise of that authority may be constrained where Congress has legislated pursuant to its own

enumerated powers. Here, Judge Jackson held that portions of these particular executive orders were

invalid because they conflicted with congressional intent, “eviscerat[ing] the right to bargain collectively”

that Congress enshrined in statute. On review, the D.C. Circuit disagreed with Judge Jackson’s

jurisdictional ruling, holding that the plaintiffs’ claims instead had to follow a statutory administrative

review process.

Other Notable Cases

In addition to the cases discussed above, Judge Jackson authored a number of opinions that have garnered

attention from some legal observers. For instance, in Pierce v. District of Columbia, Judge Jackson

considered disability discrimination and retaliation claims brought by a deaf man who was incarcerated

without being offered accommodations such as an American Sign Language interpreter. Judge Jackson

ruled in favor of the plaintiff on the discrimination claims, finding that prison staff engaged in intentional

discrimination when they “did nothing to evaluate [the plaintiff’s] need for accommodation, despite their

knowledge that he was disabled.”

Another example is an environmental law case Judge Jackson decided as a district court judge. In Guam

v. United States, the nominee addressed whether the Territory of Guam could recoup costs from the

United States for the cleanup of a contaminated landfill under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA). CERCLA provides two different avenues for

parties to recover cleanup costs from other potentially responsible parties: cost-recovery actions and

contribution actions. These two avenues are mutually exclusive; if a party has “resolved” its liability to

the United States for some or all of a response action, it must proceed with a contribution action and is

barred from proceeding with a cost-recovery action. Judge Jackson ruled that Guam could pursue a costrecovery claim against the United States. Analyzing the plain meaning of the relevant statutory terms and

considering relevant caselaw and factual history, she held that an earlier consent decree addressing Clean

Water Act violations at the landfill did not “resolve” Guam’s liability for purposes of triggering a

contribution claim. On appeal, the D.C. Circuit acknowledged that Judge Jackson’s opinion was

“thorough,” but reversed and remanded the case, holding that Guam could not seek cost recovery, and that

its contribution claim was time-barred. However, in a unanimous opinion, the Supreme Court reversed the

D.C. Circuit’s judgment, agreeing with Judge Jackson that Guam’s cost-recovery claim could proceed.

Additional CRS Resources on Nominations

CRS is preparing additional products related to Judge Jackson’s nomination that will provide further

discussion of her notable judicial rulings in these and other areas. For a discussion of Justice Breyer’s

legacy, see this post. Additional reports discuss the appointment process generally: in particular, the

President’s selection of a nominee, consideration by the Senate Judiciary Committee, and questioning of

judicial nominees.

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Author Information

Valerie C. Brannon, Coordinator

Legislative Attorney

Joanna R. Lampe

Legislative Attorney

Kate R. Bowers

Legislative Attorney

Sean M. Stiff

Legislative Attorney

Eric N. Holmes

Legislative Attorney

Disclaimer

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