The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
Congressional research reportMar 14, 2022
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The Nomination of Judge Ketanji Brown
Jackson to the Supreme Court
March 14, 2022
Congressional Research Service
https://crsreports.congress.gov
R47050
SUMMARY
The Nomination of Judge Ketanji Brown
Jackson to the Supreme Court
On February 25, 2022, President Joe Biden announced his nomination of Judge Ketanji Brown
Jackson to serve as Associate Justice of the Supreme Court of the United States. If confirmed,
Judge Jackson would fill the vacancy expected with the retirement of Associate Justice Stephen
G. Breyer in summer 2022, at the end of the Supreme Court’s term. Judge Jackson would be the
first Black woman to serve on the Supreme Court.
R47050
March 14, 2022
David Gunter, Coordinator
Section Research Manager
Judge Jackson has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 2021, having also
been nominated to that court by President Biden and confirmed by the Senate. Before that, she was a judge on the U.S.
District Court for the District of Columbia, appointed by President Barack Obama in 2013. The nominee earned her law
degree from Harvard Law School, and clerked for three federal judges, including Justice Breyer. In addition to her judicial
experience, Judge Jackson has spent time in private practice at several law firms, served on the U.S. Sentencing Commission,
and worked as a federal public defender—an experience that no current or former Justice has had.
It is difficult to predict with certainty how a prospective Supreme Court Justice might vote in cases that come before the
Court, and history shows that the votes of a Justice do not always match public expectations for a nominee. Predictions may
be even more difficult when, as with Judge Jackson, a nominee’s experience as a judge has been gained mainly on a trial
court rather than an appellate court. The role of a trial court judge is substantially different from the role of an appellate judge
in ways that may make the judge’s underlying judicial philosophy less apparent.
Despite this difficulty, Judge Jackson has written many decisions during her tenure on the federal bench, and those decisions
may provide insight into her approach to resolving legal questions. After providing some context for Judge Jackson’s
nomination, this report offers an overview of her jurisprudence. It reviews broad areas of judicial philosophy that may apply
in many cases, such as constitutional interpretation, statutory interpretation, and stare decisis. It then discusses the nominee’s
decisions in particular areas of law that appear most often in her decisions as a judge, or that are of particular interest to
Congress.
Congressional Research Service
The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
Contents
Introduction ..................................................................................................................................... 1
Biographical Information ................................................................................................................ 2
Making Predictions About Nominees .............................................................................................. 4
Evaluating the Work of a U.S. District Judge .................................................................................. 7
The Role of a U.S. District Judge.............................................................................................. 7
The Unique Nature of the District of D.C. .............................................................................. 10
Judge Jackson’s Judicial Philosophy .............................................................................................. 11
Constitutional Interpretation .................................................................................................... 11
Statutory Interpretation ........................................................................................................... 12
Stare Decisis ............................................................................................................................ 15
Selected Topics .............................................................................................................................. 18
Administrative Law ................................................................................................................. 18
Justiciability and Agency Discretion ................................................................................ 19
Agency Statutory Interpretations and Chevron Deference ............................................... 21
Review of Agency Decisions as Arbitrary or Capricious.................................................. 23
Business and Employment Law .............................................................................................. 24
Civil Procedure and Jurisdiction ............................................................................................. 28
Standing ............................................................................................................................ 31
Sovereign Immunity and Suits Against Foreign Defendants ............................................ 33
Civil Rights and Qualified Immunity ...................................................................................... 35
Criminal Law and Procedure .................................................................................................. 38
Substantive Criminal Law................................................................................................. 38
Pretrial, Post-Conviction, and Compassionate Release .................................................... 40
Asset Forfeiture................................................................................................................. 42
Sentencing......................................................................................................................... 43
Rights of the Accused ....................................................................................................... 45
Environmental Law ................................................................................................................. 48
Standing and Procedural Issues in Environmental Law Cases ......................................... 49
Scope of Agency Authority and Obligations..................................................................... 50
First Amendment ..................................................................................................................... 51
Immigration ............................................................................................................................. 53
Labor Law ............................................................................................................................... 56
Second Amendment ................................................................................................................ 57
Separation of Powers............................................................................................................... 58
Tables of Selected Cases ............................................................................................................... 63
Contacts
Author Information........................................................................................................................ 74
Congressional Research Service
The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
Introduction
On February 25, 2022, President Joe Biden announced his nomination of Judge Ketanji Brown
Jackson to serve as Associate Justice of the Supreme Court of the United States.1 Since June
2021, Judge Jackson has served as a judge on the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit);2 prior to that, she was a trial judge on the U.S. District Court for
the District of Columbia (District of D.C.) for more than eight years.3 If confirmed, Judge
Jackson would be the first Black woman, the third Black person overall, and the sixth woman
overall, to serve on the Supreme Court.4
Judge Jackson would succeed Associate Justice Stephen G. Breyer, for whom she previously
served as a law clerk.5 In remarks upon her nomination, Judge Jackson praised Justice Breyer as
exemplary for his “civility, grace, pragmatism, and generosity of spirit,” and President Biden
suggested that his nominee for Justice Breyer’s seat would share those qualities.6 Some
commentators have speculated that Judge Jackson would vote similarly to Justice Breyer in
deciding cases, and would often find herself in the minority on a court with six Justices appointed
by Republican Presidents.7
As some past Justices have demonstrated, however, it can be difficult to predict how an individual
Justice will decide particular cases after joining the Court. Differences in legal philosophy can
lead judges to different conclusions, even when those judges have been appointed by Presidents
of the same party (or even the same President). For example, the rise of textualism as a
predominant mode of legal reasoning in recent decades may point to a difference between Judge
Jackson’s jurisprudence and that of Justice Breyer, whose legal philosophy developed in a period
where other modes of legal thought held greater sway among judges and legal academics.8
See PN1783, Ketanji Brown Jackson – Supreme Court of the United States, 117th Cong. (received Feb. 28, 2022);
Press Release, Remarks by President Biden on His Nomination of Judge Ketanji Brown Jackson to Serve as Associate
Justice of the U.S. Supreme Court (Feb. 25, 2022), https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/
02/25/remarks-by-president-biden-on-his-nomination-of-judge-ketanji-brown-jackson-to-serve-as-associate-justice-ofthe-u-s-supreme-court/ [hereinafter White House Remarks]. See generally CRS Legal Sidebar LSB10701, The Supreme
Court Nomination of Judge Ketanji Brown Jackson: Initial Observations, coordinated by Valerie C. Brannon; CRS
Legal Sidebar LSB10702, Judge Ketanji Brown Jackson: Selected Primary Material, by Juria L. Jones and Laura Deal.
2 167 CONG. REC. S4511 (daily ed. June 14, 2021) (confirmation of Judge Jackson to the D.C. Circuit). References in
this report to a particular “Circuit” refer to the U.S. Court of Appeals for that particular circuit.
3 159 CONG. REC. S2436 (daily ed. Mar. 22, 2013) (confirmation of Judge Jackson to the U.S. District Court).
4 Nora McGreevy, What to Know About Judge Ketanji Brown Jackson’s Historic Nomination to the Supreme Court,
SMITHSONIAN (Mar. 1, 2022), https://www.smithsonianmag.com/smart-news/judge-ketanji-brown-jackson-could-makehistory-as-the-first-black-woman-supreme-court-justice-180979644/.
1
5 White House Remarks, supra note 1. On January 27, 2022, Justice Breyer informed President Biden that he intended
to retire from active service when the Supreme Court rises for summer recess in 2022, “assuming that by then [his]
successor has been nominated and confirmed.” Press Release, Justice Breyer Retirement Announcement (Jan. 27,
2022). For information and analysis about Justice Breyer’s jurisprudence upon his announcement, see CRS Legal
Sidebar LSB10691, Justice Breyer Retires: Initial Considerations, by Valerie C. Brannon et al.
6 White House Remarks, supra note 1.
7 See, e.g., Robert Barnes, Jackson’s Nomination is Historic, but Her Impact On Supreme Court in Short Term Likely
Will Be Minimal, WASH. POST (Feb. 25, 2022), https://www.washingtonpost.com/politics/2022/02/25/ketanji-jacksonimpact-on-supreme-court/; Adam Liptak, A Groundbreaking Nomination Who’s Unlikely to Reshape the Supreme
Court, N.Y. TIMES (Feb. 25, 2022), https://www.nytimes.com/2022/02/25/us/politics/supreme-court-jacksonfuture.html.
8 See Diarmuid F. O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 92 ST. JOHN’S L.
REV. 303, 304 (2017) (noting Associate Justice Elena Kagan’s comment that “we’re all textualists now”); see also CRS
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
This report provides an overview of Judge Jackson’s legal philosophy, as gleaned from her
decisions on the district court and the court of appeals and her other writings and public
statements. After providing biographical information about Judge Jackson,9 the report offers
context for understanding how a judge’s background might inform analysis or predictions about
her potential contributions to the Supreme Court.10 In particular, it discusses how Judge Jackson’s
record as a district court judge might compare to the experience that prior nominees had on the
courts of appeals.11 The report then reviews decisions by Judge Jackson that may provide insight
into broad areas of judicial philosophy, such as constitutional interpretation, statutory
interpretation, and stare decisis.12 Finally, the report explores selected legal topics that appear in
Judge Jackson’s decisions and that may be of particular interest to Congress as it considers her
nomination.13
This report focuses primarily on the substance of Judge Jackson’s judicial decisions. Although the
report also refers to some materials that Judge Jackson wrote prior to joining the bench, it does
not provide a full review of those materials, particularly materials she prepared while representing
clients. That is because when an attorney acts as an advocate for a party in litigation, her
arguments on behalf of that party may provide limited insight into her own views and
preferences.14
Biographical Information
Judge Jackson’s academic credentials and professional experience are, in many ways, similar to
those of other Justices who have joined the Supreme Court in recent years.15 An academic
Legal Sidebar LSB10676, The Modes of Constitutional Analysis: Textualism (Part 2), by Brandon J. Murrill;CRS
Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon; see “Statutory
Interpretation” infra.
9 See “Biographical Information” infra.
10 See “Making Predictions About Nominees” infra.
11 See “Evaluating the Work of a U.S. District Judge” infra.
12 See “Judge Jackson’s Judicial Philosophy” infra.
13 See “Selected Topics” infra.
14 During his 2005 confirmation hearing, Chief Justice John Roberts testified that the principle “that you don’t identify
the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of the client, is
critical to the fair administration of justice.” Confirmation Hearing on the Nomination of John G. Roberts, Jr., to be
Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 254 (2005). Other Justices have
made similar statements. See Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate
Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 111th Cong. 143 (2009); The
Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States Before the S. Comm.
on the Judiciary, 111th Con. 170 (2010); Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch, to be an
Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 115th Cong. 179
(2017). For an alternate perspective, see William G. Ross, The Questioning of Lower Federal Court Nominees During
the Senate Confirmation Process, 10 WM. & MARY BILL RTS. J. 119, 161 (2001) (acknowledging that “most lawyers
advocate positions about which they hold indifferent or conflicting opinions,” but suggesting that a “nominee who
consistently has acted as an advocate for particular positions or causes is likely to have personal sympathy for such
positions or causes”).
15 See, e.g., CRS Report R46562, Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme
Court, coordinated by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis; CRS Report R45293,
Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court, coordinated by Andrew
Nolan; CRS Report R44778, Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court,
coordinated by Andrew Nolan.
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
standout, she moved between public service and the private sector before gaining judicial
experience in the federal courts.
Judge Jackson was born in Washington, D.C., in 1970 and then lived in Miami, Florida.16 She
received her undergraduate degree magna cum laude from Harvard University in 1992. After a
year working as a journalist for Time, she entered Harvard Law School, where she served as a
supervising editor of the Harvard Law Review. She earned her law degree cum laude in 1996.
Judge Jackson clerked for three federal judges appointed by Presidents of both parties: Judge Patti
B. Saris of the U.S. District Court for the District of Massachusetts; Judge Bruce M. Selya of the
First Circuit; and Justice Breyer of the Supreme Court.17
Before and after her Supreme Court clerkship, Judge Jackson was an associate attorney at several
private law firms in Boston and Washington, D.C.18 From 2003 to 2005, she was an Assistant
Special Counsel for the U.S. Sentencing Commission, an independent agency in the judicial
branch that Congress created in 1984 to address federal sentencing disparities.19 In 2005, she
joined the Office of the Federal Public Defender in the District of Columbia, representing
indigent criminal defendants in appeals before the D.C. Circuit. Judge Jackson spent an additional
three years as counsel at the Washington, D.C. law firm of Morrison & Foerster LLP, with a
practice focusing on appellate litigation, and then returned to the Sentencing Commission as a
Commissioner and Vice Chair from 2010 to 2014.20
One aspect of Judge Jackson’s background that differs from most current Justices is her
experience in criminal defense.21 If confirmed to the Supreme Court, Judge Jackson would be the
first Justice to have served as a federal public defender.22 She would also be the second Justice
(after Justice Breyer) to have served on the Sentencing Commission.23
Judge Jackson was first nominated by President Barack Obama to the District of D.C. in 2012.
The Senate returned her nomination to the President because it failed to take action on the
16 In addition to sources cited in the footnotes, biographical information in this section is drawn from the following
sources: Ketanji Brown Jackson, U.S. COURT OF APPEALS FOR THE D.C. CIR., https://www.cadc.uscourts.gov/internet/
home.nsf/Content/VL+-+Judges+-+KBJ (last visited Mar. 3, 2022); S. COMM. JUDICIARY, 117th Cong., QUESTIONNAIRE
FOR NOMINEE TO THE SUPREME COURT, https://www.judiciary.senate.gov/jackson-sjq-scotus (last visited Mar. 3, 2022)
[hereinafter Senate Judiciary Questionnaire].
17 Judge Saris was appointed to the U.S. District Court by President Bill Clinton. See Judge Patti B. Saris, U.S. DIST.
CT. FOR THE DIST. OF MASS., https://www.mad.uscourts.gov/boston/saris.htm (last visited Mar. 3, 2022). Judge Selya
was appointed to both the U.S. District Court and the First Circuit by President Ronald Reagan. See Bruce M. Selya,
U.S. COURT OF APPEALS FOR THE FIRST CIR., https://www.ca1.uscourts.gov/bruce-m-selya (last visited Mar. 3, 2022).
Justice Breyer was appointed to the First Circuit by President Jimmy Carter, and then to the Supreme Court by
President Clinton. See Breyer, Stephen Gerald, FED. JUDICIAL CTR., https://www.fjc.gov/history/judges/breyer-stephengerald (last visited Mar. 3, 2022).
18 See Senate Judiciary Questionnaire, supra note 16, at 2–3.
19
About, U.S. SENTENCING COMM’N, https://www.ussc.gov/about-page (last visited Mar. 3, 2022); see also CRS Report
R41696, How the Federal Sentencing Guidelines Work: An Overview, by Charles Doyle.
20 See Senate Judiciary Questionnaire, supra note 16, at 1–4.
21 Associate Justice Samuel Alito and Associate Justice Sonia Sotomayor served as federal or state prosecutors prior to
joining the bench; Justice Breyer was formerly a Watergate Assistant Special Prosecutor. See Current Members,
SUPREME COURT OF THE U.S., https://www.supremecourt.gov/about/biographies.aspx (last visited Mar. 3, 2022).
22 See Press Release, President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S.
Supreme Court (Feb. 25, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/25/presidentbiden-nominates-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court/.
23 Former Commissioner Information, U.S. SENTENCING COMM’N, https://www.ussc.gov/about/who-we-are/
commisioners/former-commissioner-information (last visited Mar. 3, 2022).
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
nomination before the 112th Congress adjourned.24 President Obama renominated her to the
bench in 2013, and the Senate confirmed her by voice vote.25
During her time on the bench, Judge Jackson has held teaching affiliations with Harvard Law
School and George Washington University Law School. She has served on the Executive
Committee and Board of Overseers of Harvard University, the Council of the American Law
Institute, and other professional organizations related to criminal justice, administrative law, and
the Supreme Court.26
After serving on the district court bench for more than eight years, Judge Jackson was nominated
to the D.C. Circuit by President Biden in 2021. The Senate confirmed her on June 14, 2021, by a
vote of 53-44.27
Making Predictions About Nominees
While observers often look to a Supreme Court nominee’s background, judicial decisions, nonjudicial writings, and public statements in an attempt to determine how the nominee might
approach future cases, there are several reasons why it is difficult to predict with certainty how a
nominee would affect the Court if confirmed.
First, a Supreme Court nominee’s background and past statements may not be a reliable guide to
how the nominee will approach future cases. The Supreme Court often confronts novel or unusual
legal questions that may differ substantially from those a nominee has previously considered,
meaning the nominee may have no prior statements on some subjects.28 In addition, history
provides multiple examples of Supreme Court Justices whose decisions on the Court surprised
observers familiar with their pre-confirmation reputations.29 For example, Associate Justice Felix
Frankfurter, who had a reputation as a “progressive” legal scholar prior to his appointment to the
Court in 1939,30 disappointed some early supporters by subsequently becoming a voice for
judicial restraint and caution when the Court reviewed laws that restricted civil liberties during
World War II and the early Cold War era.31 Associate Justice Harry Blackmun served on the
24 159 CONG. REG. S24 (Jan. 3, 2013).
25 159 CONG. REC. S2436 (daily ed. Mar. 22, 2013).
26 See Senate Judiciary Questionnaire, supra note 16, at 4–6.
27 167 CONG. REC. S4511 (daily ed. June 14, 2021).
28 See “Evaluating the Work of a U.S. District Judge” infra.
29 Christine Kexel Chabot & Benjamin Remy Chabot, Mavericks, Moderates, or Drifters? Supreme Court Voting
Alignments, 1838–2009, 76 MO. L. REV. 999, 1021 (listing Justices William J. Brennan Jr., Tom C. Clark, Felix
Frankfurter, Oliver Wendell Holmes Jr., John McLean, James Clark McReynolds, Stanley Forman Reed, David Souter,
John Paul Stevens, Earl Warren, and James Moore Wayne as examples of jurists who “disappointed” the expectations
of the President who appointed them to the Court); see also The Judicial Nomination and Confirmation Process:
Hearings Before the Subcomm. on Admin. Oversight & the Courts, S. Comm. on the Judiciary, 107th Cong. 195 (2001)
(statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, The Catholic University of America)
(similar).
30 See Joseph L. Rauh Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme Court, 69 N.C. L. REV. 213,
220 (1990) (“When Frankfurter took his seat on the Supreme Court in January 1939, almost everyone assumed that he
would become the dominant spirit and intellectual leader of the new liberal Court.”); JAMES F. SIMON, THE
ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 13–16, 46–47 (1989)
(noting fears in some political circles that Justice Frankfurter was a Communist or Communist sympathizer,
“inspir[ing] American conservatives to label Frankfurter a dangerous radical”).
31 See Rauh, supra note 30, at 220 (“But . . . a deep belief in judicial restraint in all matters overtook even [Justice
Frankfurter’s] lifelong dedication to civil liberties.”); see, e.g., Korematsu v. United States, 323 U.S. 214, 225 (1944)
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
Eighth Circuit for a decade prior to his appointment to the Court in 1970 and was considered a
“strict constructionist” by President Richard Nixon.32 In 1973, however, he authored the majority
opinion in Roe v. Wade,33 and at the time of his retirement he was generally considered one of the
more liberal voices on the Court.34 Associate Justice Anthony Kennedy, appointed by President
Ronald Reagan, was often characterized as the Court’s “swing vote” in his later years on the
bench,35 frequently aligning with the more conservative wing of the Court, but sometimes joining
the more liberal wing in closely divided cases.36
Even a Justice with a significant judicial record and a well-defined judicial philosophy may
employ that philosophy to reach results that do not align with the Justice’s perceived political
alignment. One of President Donald Trump’s nominees to the Supreme Court, Associate Justice
Neil Gorsuch, served on the Tenth Circuit for just over a decade prior to his nomination.37 In
2020, commentators expressed surprise when Justice Gorsuch—“widely considered one of the
more conservative justices on the Supreme Court”—wrote the majority opinion in Bostock v.
Clayton County, which held that a federal law prohibiting employment discrimination on the
basis of sex also protected gay and transgender employees.38 Some scholars, however, saw Justice
Gorsuch’s opinion as driven by a textualist approach to statutory interpretation and were not
surprised by the outcome in the case.39
Second, even if it were possible to predict how an individual Supreme Court Justice would vote
in future matters, each Justice decides cases as part of a multi-member panel where her single
vote generally does not determine how any given matter will be decided. A single Justice’s impact
on the Court thus depends in part on the Court’s composition as a whole and her relationships
with the other Justices. As Associate Justice Byron White once noted, “every time a new justice
comes to the Supreme Court, it’s a different court.”40 If confirmed, Judge Jackson would join a
court that has already undergone significant recent changes: Justice Breyer’s retirement will
(Frankfurter, J., concurring) (contending that the validity of the Japanese-American civilian exclusion order was the
“business” of Congress and the Executive, not the Court); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646
(1943) (Frankfurter, J., dissenting) (arguing for the constitutionality of a World War II-era law requiring students to
salute the flag); Dennis v. United States, 341 U.S. 494, 556 (1951) (Frankfurter, J., concurring) (upholding the
conviction of three defendants under the Smith Act for conspiracy to organize the Communist Party as a group
advocating the overthrow of the U.S. government by force).
32 See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 97 (1979).
33 410 U.S. 113 (1973).
34 See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 235 (2005) (declaring that, by 1994, “Harry Blackmun was,
by wide consensus, the most liberal member of the Supreme Court”).
35 See generally CRS Report R45256, Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, by
Andrew Nolan, Kevin M. Lewis, and Valerie C. Brannon.
36 See, e.g., Roper v. Simmons, 543 U.S. 551 (2005); United States v. Windsor, 570 U.S. 744 (2013); Obergefell v.
Hodges, 576 U.S. 644 (2015).
37 See CRS Report R44778, Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court.
38 140 S. Ct. 1731, 1737 (2020); CRS Legal Sidebar LSB10496, Supreme Court Rules Title VII Bars Discrimination
Against Gay and Transgender Employees: Potential Implications, by Jared P. Cole; See Harper Neidig & John Kruzel,
Gorsuch Draws Surprise, Anger With LGBT Decision, THE HILL (June 15, 2020), https://thehill.com/regulation/courtbattles/502834-gorsuch-draws-surprise-anger-with-lgbt-decision; Robert Barnes, Neil Gorsuch? The Surprise Behind
the Supreme Court’s Surprising LGBTQ Decision, WASH. POST (June 16, 2020),
https://www.washingtonpost.com/politics/courts_law/neil-gorsuch-gay-transgender-rights-supreme-court/2020/06/16/
112f903c-afe3-11ea-8f56-63f38c990077_story.html.
39 Ezra Ishmael Young, Bostock is a Textualist Triumph, JURIST (June 25, 2020, 3:53 PM), https://www.jurist.org/
commentary/2020/06/ezra-young-bostock-textualist-triumph.
40 David B. Rivkin Jr. & Andrew M. Grossman, A Cautiously Conservative Supreme Court, WALL ST. J. (July 1, 2021).
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court
create the fourth vacancy on the High Court in the past five years.41 Thus, even before Justice
Breyer’s retirement, Court observers were engaged in analysis and debate over whether and how
the Court as a whole has changed its approach to certain legal issues in recent years.42
Some commentators have suggested that joining a Supreme Court where three of nine Justices
were appointed by Democratic presidents could limit Judge Jackson’s influence on the Court in
the short term.43 One such commentator speculated that if Judge Jackson is confirmed, “[t]here
will still be only three liberals on the court, specializing in writing dissents.”44 History paints a
more nuanced picture, however. The previous vacancy on the High Court, caused by the death of
Associate Justice Ruth Bader Ginsburg in September 2020, resulted in the confirmation of
Associate Justice Amy Coney Barrett to fill the seat.45 At the time, some predicted that if Justice
Barrett was confirmed, the Court would routinely decide cases by 6-3 votes, with the three
Justices nominated by Democratic presidents in dissent.46 Although the Court did reach some 6-3
decisions along perceived partisan lines during Justice Barrett’s first term,47 the most common
outcome was for the Justices to reach a decision unanimously; less than a quarter of cases were
divided 6-3 or 5-3.48 This is largely consistent with past trends. One Court observer reports that
since 2010, 46% of the Court’s decisions have been unanimous,49 and since Chief Justice John
Roberts joined the Court in 2005, the Court has decided 20% of its cases 5-4.50 Even when the
Court issues closely divided opinions, the divides may not track the Justices’ perceived partisan
alignment.51
Moreover, a Justice who frequently finds herself in the minority may nonetheless influence the
Court in various ways.52 In the short term, she may work with colleagues to reach compromise
41 See Justices 1789 to Present, SUPREME CT. OF THE U.S., https://www.supremecourt.gov/about/members_text.aspx
(last visited Mar. 8, 2022).
42 See, e.g., Aziz Huq, The Roberts Court is Dying. Here’s What Comes Next., POLITICO (Sept. 15, 2021); Moira
Donegan, The US Supreme Court is Deciding More and More Cases in a Secretive ‘Shadow Docket’, THE GUARDIAN
(Aug. 31, 2021); Erwin Chemerinsky, Precedent Seems to Matter Little in the Roberts Court, ABA J. (June 3, 2021);
Jonathan Skrmetti, The Triumph of Textualism: “Only the Written Word Is the Law”, SCOTUSBLOG (June 15, 2020),
https://www.scotusblog.com/2020/06/symposium-the-triumph-of-textualism-only-the-written-word-is-the-law.
43 See, e.g., Biden Is Expected to Nominate Ketanji Brown Jackson to the Supreme Court, NPR (Feb. 25, 2022)
(describing Judge Jackson’s effect on the Court’s composition as “[n]ot much in terms of the overall ideological
balance [because t]here will still be a 6-3 super majority for conservatives because she’s replacing Justice Breyer, a
fellow liberal who’s retiring”).
44 Barnes, supra note 7.
45 See Barrett, Amy Coney, FED. JUD. CTR., https://www.fjc.gov/history/judges/barrett-amy-coney (last visited Mar. 8,
2022).
46 E.g., Linda Greenhouse, The Supreme Court Is Now 6-3. What Does That Mean?, N.Y. TIMES (Nov. 5, 2020).
47 See, e.g., Brnovich v. Democratic Nat’ Comm., 141 S. Ct. 2321 (2021); Jones v. Mississippi, 141 S. Ct. 1307 (2021).
See generally, Stat Pack for the Supreme Court’s 2020–21 Term, SCOTUSblog (July 2, 2021),
https://www.scotusblog.com/wp-content/uploads/2021/07/Final-Stat-Pack-7.6.21.pdf [hereinafter Stat Pack].
48 Kalvis Golde, In Barrett’s First Term, Conservative Majority is Dominant but Divided, SCOTUSBLOG (July 2,
2021), https://www.scotusblog.com/2021/07/in-barretts-first-term-conservative-majority-is-dominant-but-divided/.
49 Stat Pack, supra note 47.
50 Golde, supra note 48.
51 See, e.g., Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1747–51 (2019) (majority opinion of Thomas, J.,
joined by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.) (holding that a third-party counterclaim defendant may not
remove a case to federal court under either the general removal statute or the Class Action Fairness Act); Mont v.
United States, 139 S. Ct. 1826 (2019) (majority opinion of Thomas, J., joined by Roberts, C.J,. and Ginsburg, Alito,
and Kavanaugh, JJ.) (holding that a period of supervised release may be tolled if the defendant is charged with another
crime and placed in pretrial detention).
52 See, e.g., Ruth Marcus, I’ve Covered the Supreme Court for Years. Here’s What to Know about Jackson’s
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decisions that garner support from a broader group of Justices. Justice Breyer, Judge Jackson’s
mentor and possible predecessor on the Court, spent his entire career on the Court on panels
where Democratic appointees were in the minority, but he authored opinions or cast deciding
votes in a number of high-profile cases.53 In the long term, even if Justice is often in the minority,
that Justice may shape the development of the law by authoring separate opinions.54
Concurrences or dissents in cases involving statutory interpretation may encourage Congress to
enact legislative reforms.55 Separate opinions may also persuade courts to adopt the author’s
preferred approach in future cases.56
Evaluating the Work of a U.S. District Judge
Judge Jackson’s experience on the federal bench is somewhat different from that of most recent
Supreme Court nominees. Like eight Justices on the current Court, Judge Jackson has been
nominated to the Supreme Court while serving on one of the federal courts of appeals.57 Several
of the current Justices had long track records on a court of appeals that could be evaluated at the
time of their nomination to the Supreme Court, while others (similar to Judge Jackson) had a
relatively short appellate-court tenure before their nomination.58 Among the current Justices,
however, only Associate Justice Sonia Sotomayor shares Judge Jackson’s experience as a U.S.
District Judge.59 Understanding the work of a district court judge—particularly in the District of
D.C.—and how that work differs from the work of an appellate judge is important to evaluating
Judge Jackson’s judicial experience.
The Role of a U.S. District Judge
The district courts “have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States,” with limited exceptions.60 Accordingly, federal civil cases
typically begin with the filing of a complaint in the court of a relevant district.61 Federal criminal
Nomination, WASH. POST (Feb. 28, 2022), https://www.washingtonpost.com/opinions/2022/02/28/ruth-marcus-ketanjibrown-jackson-supreme-court/; 13 Legal Experts on How Breyer’s Replacement Will Change the Court, POLITICO (Jan.
27, 2022) https://www.politico.com/news/magazine/2022/01/27/breyer-supreme-court-nominee-successor-00000019
(last accessed Mar. 8, 2022).
53 Brent Kendall, Jess Bravin, & Laura Kusisto, Justice Breyer’s Retirement Could Reshape Supreme Court’s Liberal
Wing, WALL ST. J. (Jan. 27, 2022), https://www.wsj.com/articles/justice-breyers-retirement-could-reshape-supremecourts-liberal-wing-11643298816.
54 See, e.g., Henry Gass & Noah Robertson, Minority Report: How Justices from Harlan to Breyer Shaped Legal
Opinion, CHRISTIAN SCI. MONITOR (Jan. 27, 2022).
55 See, e.g., Terry v. United States, 141 S. Ct. 1858, 1868 (Sotomayor, J., concurring in part and concurring in the
judgment) (identifying adverse consequences of the Court’s interpretation of the First Step Act of 2018, but asserting
that “Congress has numerous tools to right this injustice”).
56 Gass & Robertson, supra note 54.
57 See Current Members, SUPREME COURT OF THE U.S., https://www.supremecourt.gov/about/biographies.aspx (last
visited Mar. 3, 2022). Only Justice Kagan, who was the Solicitor General of the United States at the time of her
nomination, had no experience as an appellate judge.
58 Id. For example, Justice Alito served on the Third Circuit from 1990 to 2006 before his nomination to the Supreme
Court, while Associate Justice Clarence Thomas served on the D.C. Circuit from 1990 to 1991. Id.
59 Id.
60 28 U.S.C. § 1331; but see id. § 1251.
61 FED. R. CIV. P. 3.
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cases likewise generally begin in the district court with jurisdiction over the place of arrest.62
District courts, therefore, are the first to analyze most issues that may ultimately be reviewed by
courts of appeals or the Supreme Court.
The role of a district court judge differs substantially from the role of a judge on a federal court of
appeals. In contrast to appeals courts, which typically consider written arguments and may have
limited contact with the parties and their attorneys, district courts “manage the daily rough and
tumble of litigation.”63 The district courts act as finders of fact—that is, they take testimony,
establish a record of evidence, and resolve disputed factual issues when it is necessary to decide a
case—while the courts of appeals generally do not.64 In some cases, a district court judge will
take testimony in a bench trial and resolve disputed factual issues herself, while in other cases, the
judge will empanel and instruct a jury.65 The district court’s fact-finding role drives a significant
amount of litigation activity that is unique to trial practice, including document discovery and
deposition discovery, which the judge oversees.66 Many judges have standing orders, unique to
their courtrooms, to help them manage this process.67 Separate case management orders are often
used in complex cases with many parties and claims, and judges have wide discretion to tailor
such orders to the case before them.68
In some ways, this role vests the district court judge with more independence than an appellate
judge. The courts of appeals generally recognize that it is not their role to “second-guess[]
conscientious district court judges,” each of whom “must strive to manage his or her calendar
efficiently.”69 On a wide range of matters, including many procedural and case management
questions, and even findings of fact, the courts of appeals focus not on how they might have
resolved an issue in the first instance, but only on whether the district court abused its own
discretion.70 The district court judge also often sits alone; she has no need to tailor her opinions to
win the support of a colleague.
There are other ways, however, in which a trial court judge is more constrained than an appellate
judge. District court judges are solely responsible for a high volume of cases, many of which may
be legally straightforward or frivolous.71 A typical district court case also often results in more
rulings and orders than a typical appeal, including rulings on motions to dismiss, discovery
62 FED. R. CRIM. P. 5(c).
63 Simonoff v. Saghafi, 786 F. App’x 582, 584 (6th Cir. 2019).
64 Compare, e.g., FED. R. CIV. P. 39 (providing for jury trial or bench trial of issues of fact), with FED. R. APP. P. 10
(providing for court of appeals review based on the record).
65 See FED. R. CIV. P. 38, 39.
66 See, e.g., FED. R. CIV. P. 37 (authorizing the district court to sanction parties for violations of the discovery rules).
67 See Kimberly A. Jolson, The Power of Suggestion: Can a Judicial Standing Order Disrupt a Norm?, 89 U. CINN. L.
REV. 455, 459 (2021).
68 See, e.g., Hamer v. LivaNova Deutschland GmbH, 994 F.3d 173, 178 (3d Cir. 2021).
69 Mindek v. Rigatti, 964 F.2d 1369, 1374 (3d. Cir. 1992).
70 Id. (citing Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); see also, e.g., Peugh v.
United States, 569 U.S. 530, 537 (2013) (applying an abuse-of-discretion standard to the reasonableness of a criminal
sentencing decision); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–43 (1997) (applying an abuse-of-discretion standard
to the decision to exclude expert testimony); Pierce v. Underwood, 487 U.S. 552, 571 (1988) (applying an abuse-ofdiscretion standard to the decision to deny attorneys’ fees).
71 In the federal district courts as a whole, 517 cases per active judge were terminated in 2021, and 1,115 cases per
active judge remained pending at the end of the year. In the District of D.C., 276 cases per active judge were terminated
in 2021, and 386 cases per active judge remained pending at the end of the year. Statistics & Reports: United States
District Courts—National Judicial Caseload Profile, U.S. CTS., https://www.uscourts.gov/sites/default/files/
data_tables/fcms_na_distprofile1231.2021.pdf.
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matters, summary judgment, and pretrial issues.72 Some issues—for example, the admission of a
piece of evidence or a particular jury instruction—may arise as one of many decisions to be made
quickly during a trial; the importance of any particular decision may not be immediately evident.
In some cases, district court judges consider purely legal questions on written submissions, take
time to consider their rulings, and issue detailed opinions deciding or dismissing cases on legal
grounds. Those decisions, however, are subject to the binding precedent of both the Supreme
Court and the relevant court of appeals, and therefore may not reflect the district court judge’s
own view of the law.73 Judge Jackson herself has noted that, unlike a Supreme Court Justice, a
district court judge is not called upon to articulate “broader legal principles to guide the lower
courts,” and therefore is less likely to “develop substantive judicial philosophies to guide [herself]
in this task.”74
District court decisions are also reviewed more frequently than appellate decisions,75 which may
encourage a district court judge facing a new legal issue to be more cautious or attempt to predict
how an appeals court would decide the question. Indeed, some observers have discussed the rate
at which Judge Jackson’s decisions have been reversed by the D.C. Circuit, although others,
including Judge Jackson herself,76 believe that reversal rates are not a very meaningful way to
analyze a judge’s record.77 This report does not attempt to identify a quantitative method of
72 See, e.g., FED. R. CIV. P. 12 (dismissal motions), 37 (discovery motions), 56 (summary judgment).
73 Although an appeals court is bound by prior published opinions of other panels of the same circuit and Supreme
Court decisions, there are also mechanisms for a court of appeals to reconsider and overrule its own past decisions or
the decisions of a panel. See FED. R. APP. P. 35 (en banc determinations). The Supreme Court is influenced by stare
decisis, the principle that applicable precedents should be respected, but is not bound to follow precedent. See “Stare
Decisis” infra.
74 S. COMM. JUDICIARY, 117th Cong., COMMITTEE QUESTIONNAIRE ATTACHMENTS at 499 (responses to questions by
Senator Ted Cruz), https://www.judiciary.senate.gov/imo/media/doc/Jackson%20SJQ%20Attachments%20Final.pdf
(last visited Mar. 9, 2022) [hereinafter Senate Judiciary Attachments]. The Senate Judiciary Attachments are a
collection of documents that Judge Jackson appended to her Committee questionnaire, including a wide variety of
materials, some of which were previously submitted to the Committee or are also available from other sources. Notably
for purposes of this report, it also includes Judge Jackson’s responses to written questions posed by Members of the
Senate Judiciary Committee during the confirmation process for Judge Jackson’s prior judicial nominations; citations
herein to the Senate Judiciary Attachments identify those responses.
75 A final district court decision, and some interlocutory decisions, may be appealed to the court of appeals, which must
consider the appeal if certain requirements are met. See FED. R. APP. P. 3 (appeals as of right). In contrast, review
beyond the initial appellate panel is discretionary and rare. A panel decision in the court of appeals may be reheard by
the full court sitting en banc. See FED. R. APP. P. 35 (en banc determinations); Statistics & Reports: Table B-10, U.S.
CTS., https://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables?tn=b10&pn=All&t=All&m%5Bvalue%5D%5Bmonth%5D=&y%5Bvalue%5D%5Byear%5D= (showing that 28,445
appeals were terminated by panel decision during the 12 months ending September 30, 2021, and only 40 cases were
terminated by en banc decision). Decisions of the courts of appeals may also be reviewed by the Supreme Court on a
discretionary basis. See SUP. CT. R. 10; Supreme Court 2020 Term—The Statistics, 135 HARV. L. REV. 491, 498 (2021)
(calculating that the Court granted 1.4% of petitions for review during the 2020 Term).
76 See Senate Judiciary Attachments, supra note 74, at 410–11 (response to questions from Senator Chuck Grassley)
(“Looking only at the number of reversals relative to the number of decisions that are ‘actually appealed’ merely
assesses a losing party’s odds of being successful if an appeal is sought; that computation does not account for the
overall number of opinions that the judge has issued and the fact that a losing party may choose to forego an appeal for
a number of reasons, including the recognition that the ruling is correct and would be sustained on appeal. . . Not all
reversals are equivalent.”).
77 See, e.g., Reversal Rates Imperfect Tool For Judging Supreme Court Nominees, BLOOMBERG L. (Feb. 10, 2022),
https://news.bloomberglaw.com/business-and-practice/reversal-rates-imperfect-tool-for-judging-supreme-courtnominees.
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calculating the results of appeals from the nominee’s decisions. Instead, the report provides
qualitative discussions of cases in which Judge Jackson was reversed on appeal.
The Unique Nature of the District of D.C.
Another element to consider in evaluating Judge Jackson’s record as a judge is the unique nature
of the U.S. District Court for the District of Columbia.78 Observers have long recognized that the
D.C. Circuit has a different kind of docket, providing a different kind of judicial experience than
other federal courts of appeals.79 The same is true of the district court in Washington, D.C., due to
the high percentage of cases filed there that involve the federal government.
The District of D.C., like other federal courts, is a court of limited jurisdiction.80 The District of
D.C.’s location, however, has given rise to its special role (along with the D.C. Circuit) in
“overseeing the coordinate branches—the executive and legislative branches.”81 Historically, the
District of D.C. has decided many constitutional issues related to the separation of powers,
executive privilege and accountability, and Congress’s impeachment power.82 The D.C. federal
courts have also “reviewed countless actions of administrative agencies and have contributed
significantly to the development of what we have come to call ‘administrative law.’”83 Although
the D.C. Circuit is perhaps most notable in this respect due to its exclusive jurisdiction over many
types of agency cases,84 Congress also provided that the District of D.C. either has exclusive
jurisdiction or is an appropriate venue for a variety of civil actions involving government
agencies, Congress, foreign governments, and private parties.85
Court statistics reflect the District of D.C.’s focus on cases civil involving the United States. The
District of D.C. plays a disproportionately large role in deciding civil cases involving the
government compared to other federal district courts: Over the five calendar years between 2017
and 2021, about 1% of all civil cases in the federal district courts were filed in the District of
D.C., but about 4.5% of all civil cases involving the United States were filed in that district. 86 In
78 The District of D.C. is not a court of general jurisdiction for the District of Columbia, nor is it the primary court for
cases arising under the laws of the District of Columbia. The District of Columbia has a separate court system,
analogous to state courts elsewhere, that considers cases under local law. See generally D.C. CODE §§ 11-701–11-947;
District of Columbia Court Reorganization Act of 1970, Pub. L. No. 91-358, 84 Stat. 475 (1970); John G. Roberts, Jr.,
What Makes the D.C. Circuit Different? A Historical View, 92 VA. L. REV. 375, 387–89 (2006).
79 See, e.g., Roberts, supra note 78, at 388–89; Eric M. Fraser, et al., The Jurisdiction of the D.C. Circuit, 23 CORNELL
J. L. & PUB. POL’Y 131, 132 (2013).
80 See, e.g., Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).
81 Susan Low Bloch & Ruth Bader Ginsburg, Celebrating the 200th Anniversary of the Courts of the District of
Columbia, 90 GEO. L. J. 549, 565 (2002).
82 See id. at 564–74.
83 Id. at 575.
84 See Roberts, supra note 78, at 389.
85 See, e.g., 2 U.S.C. § 922(a)(1) (providing that any Member of Congress may bring an action in the District of D.C. to
challenge Presidential budget sequestration orders); 15 U.S.C. § 146a (providing that the District of D.C. has
concurrent jurisdiction over suits involving a China Trade Act corporation); 28 U.S.C. § 1365(a) (providing that the
District of D.C. has exclusive jurisdiction over actions brought by the Senate or its committees to enforce a subpoena);
id. § 1391(f)(4) (providing jurisdiction in the District of D.C. for civil actions against a foreign state); 30 U.S.C. §
1276(a)(1) (providing for exclusive review in the District of D.C. over national regulations promulgated by the
Department of the Interior related to surface coal mining); 52 U.S.C. § 10310(b) (providing that the District of D.C. has
exclusive jurisdiction to issue certain declaratory judgments related to voting rights).
86 See Statistics & Reports: Table C-3, U.S. CTS., https://www.uscourts.gov/statistics-reports/caseload-statistics-datatables. Table C-3 provides the number of filed civil cases for all district courts, and for each jurisdiction, in the
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turn, those cases make up a disproportionately large share of the docket in the District of D.C.,
compared to other kinds of cases: Civil cases involving the government constituted about 13% of
all civil cases filed in the federal district courts during that period, but more than 56% of civil
cases in the District of D.C.87 As a result, the issues of most interest to Congress may appear more
often in Judge Jackson’s record on the bench than in those of judges in different districts.
Judge Jackson’s Judicial Philosophy
Judge Jackson has said that she follows a specific methodology when deciding cases, “looking
only at the arguments that the parties have made, at the facts in the record of the case, and at the
law as [she] understand[s] it,” including governing statutes and binding precedent.88 By focusing
on these factors and “methodically and intentionally setting aside personal views,” the nominee
has attempted to achieve “fidelity to the rule of law” and “rule without fear or favor.”89 Citing the
necessity of adhering to the rule of law, she has stressed the importance of judicial independence
from the political branches.90 At the same time, Judge Jackson has stated that her prior
professional experiences have influenced her approach to judging.91 As an example, she said that
as a public defender, she discovered that many of her clients did not understand the criminal
proceedings they had personally experienced; accordingly, as a district court judge, she took
“extra care to communicate with the defendants” in her courtroom, ensuring that they understood
the process and the reasons for their prosecution.92
Constitutional Interpretation
One of the most critical jobs of a Supreme Court Justice is to assess the constitutionality of
government action.93 Where the constitutional text is ambiguous or silent, many Supreme Court
Justices have developed methods to determine the meaning of constitutional provisions.94 For
example, some constitutional scholars and Justices have espoused “originalism,” an approach that
focuses on the original public meaning of the constitutional text at the time of the Founding.95
categories of “Total Civil Cases,” “Total U.S. Civil Cases,” and “Total Private Civil Cases.” CRS aggregated the
subtotals in each of those three categories for each calendar year ending December 31, 2017 through December 31,
2021, to derive the percentages cited in the text.
87 See id.
88 Nominee to be U.S. Court of Appeals Judge of the District of Columbia Circuit: Hearing Before the Senate Judiciary
Committee, 117th Cong. (Apr. 28, 2021) (testimony of Judge Jackson) [hereinafter D.C. Circuit Confirmation
Hearing].
89 Id.; see also Senate Judiciary Attachments, supra note 74, at 451 (responses to questions from Senator Mike Lee)
(stating that “empathy should not play a role in a judge’s consideration of a case” because judges have “a duty to
decide cases based solely on the law, without fear or favor, prejudice or passion”); id. at 502 (responses to questions
from Senator Jeff Flake) (“A good judge has professional integrity, which includes reverence for the rule of law, total
impartiality, and the ability to apply the law to the fairly determined facts of the case without bias or any preconceived
notion of how the case will be resolved.”).
90 See D.C. Circuit Confirmation Hearing, supra note 88.
91 Id.
92 Id.
93 See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) (“The judicial power of the United States is
extended to all cases arising under the constitution.”).
94 See generally CRS Report R45129, Modes of Constitutional Interpretation, by Brandon J. Murrill.
95 See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 856–57 (1989); Lucia v. SEC, 138 S.
Ct. 2044, 2056 (2018) (Thomas, J., concurring); see generally CRS Legal Sidebar LSB10677, The Modes of
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Other jurists have argued for more pragmatic approaches, looking to the likely practical
consequences of a constitutional construction and what an interpretation would mean for the
functioning of the government.96 Justice Breyer, in particular, has described U.S. constitutional
history as “a quest for . . . workable democratic government protective of individual personal
liberty.”97 Reflecting his pragmatic attitude toward legal questions, Justice Breyer emphasizes
that “institutions and methods of interpretation must be designed in a way such that this form of
liberty is sustainable over time and capable of translating the people’s will into sound policies.”98
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.99 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.”100
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.101 Nonetheless, some of those cases, including the few
that required a more rigorous analysis, are discussed in more detail later in this report.102
Statutory Interpretation
A judge’s approach to statutory interpretation can provide significant insight into her
jurisprudence, and examples of cases requiring statutory interpretation are much more common in
the district court than constitutional cases. Many judges today lean towards one of two schools of
statutory interpretation.103 Textualism focuses more on a statute’s text, asking how a reasonable
person might understand the law’s words,104 while purposivism places more emphasis on a
statute’s purpose, asking what problem Congress was trying to solve and how the law achieves
that goal.105
Constitutional Analysis: Original Meaning (Part 3), by Brandon J. Murrill.
96 See, e.g., Richard A. Posner, What Has Pragmatism to Offer Law?, 63 S. CAL. L. REV. 1653, 1657 (1990); Free
Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 514 (Breyer, J., dissenting); see generally CRS Legal
Sidebar LSB10679, The Modes of Constitutional Analysis: Pragmatism (Part 5), by Brandon J. Murrill.
97 STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 34 (2008).
98 Id. at 16.
99 D.C. Circuit Confirmation Hearing, supra note 88.
100 Senate Judiciary Attachments, supra note 74 (responses to questions by Senator Tom Coburn).
101 See, e.g., Las Ams. Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 19 (D.D.C. 2020) (rejecting due process
challenge to agency policy under “binding” Supreme Court precedent); see generally CRS Legal Sidebar LSB10678,
The Modes of Constitutional Analysis: Judicial Precedent (Part 4), by Brandon J. Murrill.
102 See “Civil Rights and Qualified Immunity,” “Rights of the Accused,” “First Amendment,” and “Separation of
Powers” infra.
103 See generally, e.g., CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C.
Brannon, “Major Theories of Statutory Interpretation.”
104 See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in
Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 22 (Amy
Gutmann ed., 1997).
105 See, e.g., HENRY M. HART JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND
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Judge Jackson may differ from Judge Breyer, whom she has been nominated to replace, in her
approach to statutory interpretation. Justice Breyer employs a purposivist approach, following the
“Legal Process” school of thought that approached statutory interpretation with the assumption
that Congress is “made up of reasonable persons pursuing reasonable purposes reasonably.”106
Accordingly, Justice Breyer approaches difficult statutory questions by looking to Congress’s
purpose and “the practical consequences that are likely to follow from Congress’ chosen scheme,”
and seeking a construction that serves that purpose.107
Judge 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.”108 Interpreting statutes as a district court
judge, Judge Jackson was often bound by prior Supreme Court and D.C. Circuit cases,109 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.110 A number of
her opinions rely on a statute’s “plain language”111 and engage in close readings that, for
example, stress Congress’s use of a specific verb tense112 or a singular pronoun.113 She has also
looked to established canons of construction,114 such as the principle that no statutory language
should be rendered superfluous.115
APPLICATION OF LAW 1148 (William N. Eskridge Jr. & Phillip P. Frickey eds., 1994).
106 John F. Manning, Chevron and the Reasonable Legislator, 128 HARV. L. REV. 457, 457 (2014) (quoting Hart &
Sacks, supra note 105, at 1378); see also Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes,
65 S. CAL. L. REV. 845, 853–54 (1992) (“Sometimes [a court] can simply look to the surrounding language in the
statute or to the entire statutory scheme and ask, ‘Given this statutory background, what would a reasonable human
being intend this specific language to accomplish?’”).
107 United States v. Arthrex, Inc., 141 S. Ct. 1970, 1988 (2021) (Breyer, J., concurring in the judgment in part and
dissenting in part).
108 Am. Meat Inst. v. U.S. Dep’t of Agric., 968 F. Supp. 2d 38, 56 (D.D.C. 2013), aff’d, 746 F.3d 1065 (D.C. Cir.
2014).
109 See, e.g., Campaign for Accountability v. U.S. Dep’t of Justice, 278 F. Supp. 3d 303, 321 (D.D.C. 2017) (applying
Supreme Court and D.C. Circuit precedent to resolve a dispute over the scope of FOIA), aff’d sub nom. Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep't of Just., 846 F.3d 1235 (D.C. Cir. 2017).
110 See, e.g., Am. Meat Inst., 968 F. Supp. 2d at 62 (stating that “even if Plaintiffs are correct that Congress secretly
wished to preserve commingling and infused [a specific provision] with that intention, the most plausible reading of
what Congress actually wrote is that the statute” does not expressly address commingling); id. at 63–64 (looking to
statutory context and rejecting a reading that contravened an earlier requirement, and adopting a reading that was
consistent with subsequent provisions). See also, e.g., AFL-CIO v. NLRB, 466 F. Supp. 3d 68, 84 (D.D.C. 2020)
(concluding it was unlikely “that Congress intended to place” a provision “in the heart of a section solely governing
unfair labor practices, and yet somehow meant for this particular provision alone to apply more broadly”).
111 E.g., Depomed, Inc. v. U.S. Dep’t of Health & Human Servs., 66 F. Supp. 3d 217, 233 (D.D.C. 2014) (concluding
“the plain language” of the relevant statute “means precisely what it says” and was unambiguous). See also, e.g., Equal
Rights Ctr. v. Uber Techs., Inc., 525 F. Supp. 3d 62, 83–84 (D.D.C. 2021) (looking to the dictionary definition of
“provide” to conclude that Uber plausibly “provided” a public transportation service within the Americans with
Disabilities Act’s meaning).
112 Kiakombua v. Wolf, 498 F. Supp. 3d 1, 41 (D.D.C. 2021) (holding that an agency’s “requirement of certainty, as
conveyed by the use of the present tense ‘is,’ is in tension with Congress’s deliberate employment of the verb phrase
‘could’—for the latter conveys . . . a possibility, rather than certainty”); see also AFL-CIO, 471 F. Supp. 3d at 244
(holding that use of “taken” in a statute “speaks solely to actions that have been ‘taken’” and not necessarily actions
that individuals “have not yet taken (but will take)”).
113 Am. Meat Inst., 968 F. Supp. 2d at 60–61 (noting that a statute “expressly refers to . . . ‘an’ animal or ‘the animal,’”
suggesting that Congress did not address the issue of commingling cuts derived from multiple animals).
114 See generally, e.g., CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C.
Brannon, “Canons of Construction.”
115 Watervale Marine Co. v. U.S. Dep’t of Homeland Sec., 55 F. Supp. 3d 124, 145 (D.D.C. 2014), aff’d on other
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When the statutory text does not provide a complete or definitive answer, however, the nominee
has also used the tools of purposive interpretation, asking what outcome a “rational legislature”
would have sought116 and whether a particular interpretation serves Congress’s purpose.117
Accordingly, in one case, she enjoined portions of executive orders she decided reflected “a
decidedly different policy choice” from the one Congress expressly adopted.118 Further, like
Justice Breyer,119 Judge Jackson has sometimes looked to legislative history to help determine the
meaning of statutory language.120
Two relatively narrow and complex statutory interpretation disputes demonstrate Judge Jackson’s
holistic approach to statutory interpretation. The first, R.J. Reynolds Tobacco Co. v. United States
Department of Agriculture, involved a statutory provision requiring tobacco manufacturers and
importers to make subsidy payments to tobacco growers.121 The statute required the Commodity
Credit Corporation (CCC) to base those payments on all “relevant information,” and the legal
question was whether that phrase allowed the CCC to consider only information that was “precise
and verified by another federal agency.”122 Judge Jackson agreed that it did.123 She looked first to
the statute’s “plain text,” citing canons of construction and a legal dictionary to hold that the term
“other relevant information” should include only information that was similar to the categories of
agency-substantiated information specifically enumerated earlier in the statute.124 The nominee
then concluded that the law’s purpose confirmed this textual interpretation, noting that Congress
grounds, 807 F.3d 325 (D.C. Cir. 2015) (rejecting a reading of a statute that would render one of its words superfluous
to another provision). See also, e.g., Osvatics v. Lyft, Inc., 535 F. Supp. 3d 1, 13 (D.D.C. 2021) (applying the ejusdem
generis canon, which counsels that a general term following more specific terms should be construed to cover only
concepts similar to the more specific terms, to interpret a statute’s residual clause); Clarian Health W., LLC v. Burwell,
206 F. Supp. 3d 393, 414–15 (D.D.C. 2016) (applying the expressio unius canon, which suggests that Congress’s
expression of one thing implies the exclusion of other associated items, to hold that a law did not incorporate a certain
exemption, where it expressly included other related exemptions taken from another statute), rev’d, 878 F.3d 346 (D.C.
Cir. 2017).
116 Am. Meat Inst., 968 F. Supp. 2d at 55 n.18 (stating that “the fact that a rational legislature probably would not have
wanted” an outcome that the plaintiffs claimed would follow from a particular statutory construction “merely
underscore[d] the likelihood” that the particular provision was “not really addressing” the issue).
117 See, e.g., Kiakombua, 498 F. Supp. 3d at 45 (stating that deciding whether an agency’s interpretation of a law
governing credible fear interviews was reasonable “necessarily requires the Court to focus on the purpose of credible
fear interviews as Congress envisioned them”).
118 Am. Fed’n of Gov’t Emps. v. Trump, 318 F. Supp. 3d 370, 381 (D.D.C. 2018), rev’d and vacated, 929 F.3d 748
(D.C. Cir. 2019).
119 See, e.g., Breyer, supra note 106, at 847 (defending the “careful use” of legislative history).
120 See, e.g., Wye Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 702 (D.C. Cir. 2022) (“To the extent that one might
think that the second clause is ambiguous . . . , the legislative history . . . leaves no doubt.”); Kiakombua, 498 F. Supp.
3d at 46 (stating a law’s legislative history “provides one lens through which to view Congress’ intent”); A Love of
Food I, LLC v. Maoz Vegetarian USA, Inc., 70 F. Supp. 3d 376, 408 (D.D.C. 2014) (“Finding the case law less than
illuminating, this Court reviewed the [Act’s] legislative history and finds that it sheds some light on the meaning and
purpose of the statutory language . . . .”). Cf., e.g., Ctr. for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218,
238–39 (D.D.C. 2019) (“Given the abundantly clear and specific language that Congress used . . . , it is not necessary
for the Court to delve into the . . . legislative history to determine Congress’s intent.”), cert. denied, 141 S. Ct. 158
(2020); Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420, 436 (D.D.C. 2016) (similar), rev’d,
878 F.3d 346 (D.C. Cir. 2017); Note, Prevention Versus Punishment: Toward a Principled Distinction in the Restraint
of Released Sex Offenders, 109 HARV. L. REV. 1711, 1720 (1996) (expressing concern about the potential
manipulability or indeterminacy of legislative history).
121 130 F. Supp. 3d 356, 358 (D.D.C. 2015).
122 Id. at 370.
123 Id. at 371.
124 Id. at 373.
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had not given the CCC the authority to engage in independent substantiation, and it would
“make[] eminent sense” for Congress to intend the agency “to rely only on information that other
federal law enforcement agencies . . . have already verified.”125
The second example is the first of Judge Jackson’s several opinions in Alliance of Artists &
Recording Cos. v. General Motors.126 This case involved the Audio Home Recording Act, a
federal law requiring manufacturers and distributors of “digital audio recording devices” to
implement certain technologies and pay per-device royalties.127 At issue in the case was whether
in-vehicle systems produced “digital audio copied recordings,” a question that itself turned on
whether a digital audio copied recording also had to be a “digital music recording.”128 The
defendant car manufacturers argued that their in-vehicle systems were not covered because they
did not generate output that met the statutory definition of “digital music recording.”129
Judge Jackson agreed with the defendants, pointing to language in the statutory definition and
other sections of the law that seemed to assume that digital audio copied recordings were
themselves digital music recordings.130 For example, she noted that a remedial provision
authorized courts to order the destruction of any noncompliant digital audio recording device or
digital musical recordings, without specifically referencing digital audio copied recordings.131 In
her view, it made “little sense that Congress would only authorize a court to seize or destroy the
[device] and its input (the [digital music recordings]), while leaving the illegal copies . . .
unscathed.”132 Instead, the more natural reading was that a digital audio copied recording was a
type of digital music recording that could also be destroyed under the remedial provision.133 The
nominee also said this reading was consistent with the law’s purpose; the legislative history
confirmed that the text was “the carefully calibrated result of extensive legislative
negotiations.”134 After further proceedings in the case, Judge Jackson granted summary judgment
in favor of the auto manufacturers.135 On appeal, the D.C. Circuit affirmed the grant of summary
judgment, citing the nominee’s analysis favorably in several instances.136
Stare Decisis
In addition to general theories about constitutional and statutory interpretation, past Supreme
Court decisions play an important role in a judge’s legal reasoning. District courts and courts of
appeals are bound by the controlling decisions of the superior federal courts: the appeals courts
must follow Supreme Court precedent, and district courts must follow decisions of both the
Supreme Court and the U.S. Court of Appeals for the circuit in which they sit.137 The Supreme
125 Id. at 373–74.
126 All. of Artists & Recording Cos., Inc. v. Gen. Motors Co., 162 F. Supp. 3d 8 (D.D.C. 2016).
127 Id. at 8–9.
128 Id. at 17.
129 Id.
130 Id. at 18–19.
131 Id. at 19.
132 Id.
133 Id.
134 Id.
135 All. of Artists & Recording Cos., Inc. v. Gen. Motors Co., 306 F. Supp. 3d 422, 425 (D.D.C. 2018).
136 All. of Artists & Recording Cos., Inc. v. DENSO Int’l Am., Inc., 947 F.3d 849, 862, 865, 867 (D.C. Cir. 2020).
137 See, e.g., Patterson v. United States, 999 F. Supp. 2d 300, 310 (D.D.C. 2013) (quoting Owens-Ill., Inc. v. Aetna Cas.
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Court, by contrast, is not so bound. Instead, the Justices generally follow prior decisions of the
Supreme Court under the non-binding doctrine of stare decisis. The Court has explained that stare
decisis is, “in English, the idea that today’s Court should stand by yesterday’s decisions.”138 The
Court generally adheres to its prior decisions absent “a ‘special justification’—over and above the
belief ‘that the precedent was wrongly decided.’”139 But the Court has also emphasized that stare
decisis is not “an inexorable command.”140 The principle is at its weakest in constitutional cases,
because Congress cannot “abrogate” an erroneous constitutional interpretation as it could a
decision involving a statute.141
The doctrine of stare decisis, and a judicial nominee’s views on the doctrine, are potentially
relevant across all areas of the Court’s jurisprudence. For example, a nominee’s prior statements
about stare decisis (if any) could illuminate how the nominee would approach prior decisions that
she considers to be wrongly decided and whether the nominee believes the strength of precedent
might be different for statutory and constitutional cases.142
Judge Jackson’s prior decisions and public statements offer limited guidance on these questions,
but generally reflect the thorough consideration of applicable precedent.143 One of her district
court decisions includes significant discussion of stare decisis. In Committee on the Judiciary v.
McGahn, Judge Jackson looked to a prior D.C. district court decision that she viewed as
“compelling (albeit, admittedly, not controlling),” and she applied that precedent in a manner she
deemed “consistent with stare decisis principles” to help resolve a high-stakes separation of
powers dispute.144 Quoting the Supreme Court, she recognized that stare decisis “promotes the
& Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C. 1984)).
138 Kimble v. Marvel Ent. LLC, 576 U.S. 446, 455 (2015).
139 Id. at 455–56 (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).
140
See Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2478 (2018) (quoting, inter alia, Pearson v. Callahan, 555 U.S.
223, 233 (2009); Lawrence v. Texas, 539 U.S. 558, 577 (2003); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).
141 See Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (plurality opinion) (reasoning that the precedent under
consideration “involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that
field, where our mistakes cannot be corrected by Congress”).
142 In past hearings, Senators have asked nominees, including Judge Jackson, whether there are particular cases that
they believe were wrongly decided. Judge Jackson has generally followed the practice established by other nominees of
declining to answer such questions, except with respect to the seminal cases of Marbury v. Madison, Brown v. Board of
Education, and Loving v. Virginia. See Senate Judiciary Attachments, supra note 74, at 460 (responses to questions
from Senator Ben Sasse). Judge Jackson’s decision in Maryland v. U.S. Department of Education, No. 17-cv-2139,
2020 WL 7773390 (D.D.C. Dec. 29, 2020) shows the nominee’s adherence to binding authority coupled with a
willingness to express her concerns with such precedent. In Maryland, the D.C. Circuit vacated a district court decision
by Judge Jackson and remanded the case with instructions to dismiss as moot. See id. at *1 (citing Maryland v. U.S.
Dep’t of Educ., No. 20-5268, 2020 WL 7773390 (D.C. Cir. Dec. 22, 2020)). Judge Jackson heeded the appellate court’s
directions on remand and dismissed the case as moot, but wrote an opinion objecting to the vacatur. See id. at *5–7; see
also “Civil Procedure and Jurisdiction” infra.
143 See, e.g., Senate Judiciary Attachments, supra note 74, at 454 (responses to questions from Senator Mike Lee) (“It is
the duty of a judge to apply Supreme Court and circuit precedent that governs the resolution of the issue at hand
faithfully, regardless of that judge’s personal opinion about either the matter at issue or the correctness of the holdings
in those cases. However, if a particular Supreme Court or D.C. Circuit precedent is not applicable to an issue before
me, I would look for analogous precedents to glean principles that could be applied to the circumstances of the case at
hand. It might also be necessary to distinguish the instant circumstances from other seemingly applicable precedents,
and to explain why the principles articulated in such other cases do not control the outcome of the case.”).
144 Comm. on Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 173 (D.D.C. 2019), rev’d,
973 F.3d 121 (D.C. Cir. 2020), rev’d en banc, 968 F.3d 755 (D.C. Cir. 2020). For additional discussion of the McGahn
decision, including its subsequent history in the district court and court of appeals, see “Standing” and “Separation of
Powers” infra.
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evenhanded, predictable, and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”145
She further opined that the doctrine “performs a limiting function” that supports the constitutional
separation of powers, because “deciding a legal issue anew each time that same question is
presented, without any reference to what has been done before, nudges a court outside of its
established domain of ‘say[ing] what the law is[,]’ and into the realm of legislating what the law
should be.”146
Two additional decisions by Judge Jackson contain more limited discussion of stare decisis. In
Patterson v. United States, the nominee held that the U.S. Park Police who arrested an individual
for using profanity in a public park violated clearly established law under the First and Fourth
Amendments.147 Rejecting the government’s argument that the plaintiff could not pursue a First
Amendment claim, Judge Jackson explained, “the D.C. Circuit has expressly recognized that
there is a First Amendment right not to be arrested in retaliation for one’s speech where there is
otherwise no probable cause for the arrest, . . . and this Court cannot ignore the D.C. Circuit’s
binding precedent.”148 In Morgan v. U.S. Parole Commission, Judge Jackson dismissed a
prisoner’s civil suit in part on the grounds of res judicata—the legal doctrine that “bars
relitigation of claims or issues that were or could have been litigated in a prior action.”149 Holding
that prior litigation in West Virginia federal court barred the plaintiff’s claim under the Ex Post
Facto Clause, Judge Jackson observed, “this Court sees nothing inherently unfair or untoward
about the application of past precedent to address a constitutional question; after all, adherence to
precedent is venerated practice of the state and federal courts.”150
Judge Jackson also made statements on the subject of precedent in response to questioning during
her confirmation hearings to the district court and the D.C. Circuit. For instance, when asked
about stare decisis during her district court confirmation, she responded that the doctrine “is a
bedrock legal principle that ensures consistency and impartiality of judgments. All judges are
obligated to follow stare decisis, and the doctrine is particularly strong as applied to federal
district court judges.”151 When asked during her confirmation to the D.C. Circuit how she would
define “judicial activism,” she responded in part:
While [a] judge may acknowledge the force of contrary positions regarding the legal issues
in dispute, the result that a judge reaches must be consistent with the requirements of the
law, as set forth in the binding precedents of the Circuit and the Supreme Court. Judicial
activism occurs when a judge who is unwilling or unable to rule as the law requires and
instead resolves cases consistent with his or her personal views. 152
145 McGahn, 415 F. Supp. 3d at 173 (quoting Payne v. Tennessee, 501 U.S. 808, 827–28 (1991)).
146 Id. at 165–66 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
147 999 F. Supp. 2d 300, 315 (D.D.C. 2013). For additional discussion of Patterson, see “Civil Rights and Qualified
Immunity” and “First Amendment” infra.
148 Patterson,. 999 F. Supp. 2d at 310 (internal citation omitted). See also id. at 310–11 (quoting Owens-Ill., Inc. v.
Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C. 1984) (“The doctrine of stare decisis compels district courts
to adhere to a decision of the Court of Appeals of their Circuit until such time as the Court of Appeals or the Supreme
Court of the United States sees fit to overrule the decision.”)).
149 304 F. Supp. 3d 240, 246 (D.D.C. 2016).
150 Id. at 251.
151 Senate Judiciary Attachments, supra note 74, at 488 (responses to questions from Senator Amy Klobuchar).
152 Id. at 413 (responses to questions from Senator Chuck Grassley). See also id. at 13 (“A circuit judge might properly
encourage the Supreme Court to reconsider holdings that are confusing or otherwise problematic in application, by
pointing out a problem with the interpretation or application of a precedent, in either a concurrence or a dissent. But it
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Addressing the question of when it is appropriate for a federal circuit court to overrule its own
precedents, she explained: “D.C. Circuit precedents make clear that it is appropriate for that court,
sitting en banc, to overturn its own precedents only in a narrow set of circumstances,” including
when required by intervening developments in the law, when a prior holding on an important
question of law was fundamentally flawed, or “where the precedent may be a positive detriment
to coherence and consistency in the law, either because of inherent confusion created by an
unworkable decision, or because the decision poses a direct obstacle to the realization of
important objectives embodied in other laws.”153
Selected Topics
The remaining sections of this report each focus on an issue that appears in Judge Jackson’s
record as a judge or public official. That focus necessarily omits some topics that may be of
interest to Congress if Judge Jackson’s professional background and judicial experience do not
provide an adequate basis for analysis. For example, CRS has identified no decisions by Judge
Jackson that address the issue of reproductive rights. This report also does not focus on certain
topics, such as local D.C. law or private disputes under contract and tort doctrines, which may be
less relevant to Congress as it considers a Supreme Court nominee.
Administrative Law
The D.C. federal courts have an “outsized role” in administrative law,154 with cases involving
executive branch authority comprising a significant portion of their dockets.155 Judge Jackson’s
district court opinions reflect that focus. A number of her opinions have considered the
application of the Administrative Procedure Act (APA), which generally governs judicial review
of agency action,156 and various judicially created doctrines that apply to review of agency
actions.157 This report’s discussion focuses primarily on issues relating to justiciability and
substantive review of agency decisions, but Judge Jackson has faced a wide variety of
administrative law issues, including cases challenging agency procedures.158 She has also
would not be proper for a circuit court judge to depart from Supreme Court precedent when ruling in a case.”).
153 Id. at 462 (responses to questions from Senator Ben Sasse) (quoting United States v. Burwell, 690 F.3d 500, 504
(D.C. Cir. 2012)) (internal quotations omitted).
154 Aaron L. Nielson, D.C. Circuit Review – Reviewed: The Second Most Important Court?, YALE J. REG.: NOTICE &
COMMENT (Sept. 4, 2015), https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-the-second-most-important-courtby-aaron-nielson/; see “The Unique Nature of the District of D.C.” supra.
155 See Roberts, supra note 78, at 376–77; Brett M. Kavanaugh, The Courts and the Administrative State, 64 CASE W.
RES. L. REV. 711, 715 (2014) ("[T]he bread and butter of [the D.C. Circuit docket is its] . . . administrative law
docket.).
156 5 U.S.C. §§ 701–706; see generally CRS Report R44699, An Introduction to Judicial Review of Federal Agency
Action, by Jared P. Cole.
157 See generally CRS Report R44954, Chevron Deference: A Primer, by Valerie C. Brannon and Jared P. Cole.
158 See, e.g., AFL-CIO v. NLRB, 466 F. Supp. 3d 68, 92 (D.D.C. 2020) (holding that an agency rule should have gone
through notice-and-comment rulemaking because it was not merely a procedural rule); Clarian Health W., LLC v.
Burwell, 206 F. Supp. 3d 393, 397 (D.D.C. 2016) (holding that agency statements in an instruction manual were
substantive rules that should have gone through notice-and-comment rulemaking), rev’d, 878 F.3d 346 (D.C. Cir.
2017).
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resolved cases involving broader oversight issues159 and a large number of disputes involving the
interpretation and application of the Freedom of Information Act.160
Justice Breyer has been generally deferential to federal agencies’ exercises of their statutorily
delegated authority.161 Some legal commentators have suggested Judge Jackson’s record is less
deferential due to her willingness both to extend judicial review to agency actions and to enforce
procedural and substantive limitations on agency authority.162
Justiciability and Agency Discretion
A threshold question in many cases challenging agency action is whether Congress has chosen to
delegate authority to an agency in a way that is effectively unreviewable in court.163 The APA
does not apply to, and thus does not provide a cause of action for judicial review of, “agency
action” that “is committed to agency discretion by law.”164 However, as the Supreme Court has
stated, the APA “embodies the basic presumption of judicial review to one ‘suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the meaning
of a relevant statute.’”165 The Supreme Court has therefore explained in recent years that it reads
the APA’s statutory exception “quite narrowly,” so that agency actions are reviewable except in
the “rare” case of administrative decisions that are “traditionally left” to agency discretion.166 This
is true even when an agency acts pursuant to a “broad” grant of authority that entails significant
discretion.167
159 See “Separation of Powers” infra.
160 For example, Judge Jackson issued two opinions rejecting claims that the Department of Justice’s Office of Legal
Counsel’s written legal opinions were either all covered by or all exempt from the reading room provisions of the
Freedom of Information Act (FOIA). See Campaign for Accountability v. U.S. Dep’t of Just., 486 F. Supp. 3d 424, 426
(D.D.C. 2020); Campaign for Accountability v. U.S. Dep’t of Just., 278 F. Supp. 3d 303, 305–06 (D.D.C. 2017). See
also, e.g., Brick v. U.S. Dep’t of Just., 293 F. Supp. 3d 9, 10, 12 (D.D.C. 2017) (noting an agency’s repeated failures to
submit sufficient information to allow meaningful judicial review of its FOIA redactions, and stating that if the agency
failed again, the court would require production of the documents); Sheridan v. U.S. Off. of Pers. Mgmt., 278 F. Supp.
3d 11, 22–23 (D.D.C. 2017) (noting, but avoiding resolving, open legal question relating to the application of the FOIA
exemption for records compiled for law enforcement purposes).
161 CRS Legal Sidebar LSB10691, Justice Breyer Retires: Initial Considerations, by Valerie C. Brannon et al.
162 See Jimmy Hoover, Ketanji Brown Jackson No ‘Rubber Stamp’ For Gov’t Agencies, LAW360 (Mar. 3, 2022),
https://www.law360.com/publicpolicy/articles/1470007/ketanji-brown-jackson-no-rubber-stamp-for-gov-tagencies?nl_pk=77a8fbcd-0ce9-4d0f-a0ac-3a4c7fd100a8.
163 See generally CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
A somewhat related issue is administrative exhaustion: a judicially enforced doctrine requiring parties to exhaust any
available administrative procedures provided by statute or regulation before they may challenge an agency decision in
court. See, e.g., Mackinac Tribe v. Jewell, 87 F. Supp. 3d 127, 130–31 (D.D.C. 2015) (dismissing lawsuit seeking tribal
recognition because the Mackinac Tribe had not exhausted administrative remedies), aff’d, 829 F.3d 754 (D.C. Cir.
2016).
164 5 U.S.C. § 701(a)(2). The APA also does not apply “to the extent that statutes preclude judicial review.” Id.
§ 701(a)(1).
165 Abbott Lab’ys v. Gardner, 387 U.S. 136, 140 (1967) (quoting 5 U.S.C. § 702).
166 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (internal quotation marks
omitted) (concluding that the Deferred Action for Childhood Arrivals (DACA) program was more than a nonenforcement policy of the type traditionally held to be committed to agency discretion by law and that rescission of
DACA was therefore subject to APA review); see also, e.g., Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S.
Ct. 361, 370–72 (2018) (explaining that the Court has found an issue to be committed to agency discretion in “few
cases”); CRS Legal Sidebar LSB10536, Judicial Review of Actions Legally Committed to an Agency’s Discretion, by
Daniel J. Sheffner.
167 Dep’t of Com. v. New York, 139 S. Ct. 2551, 2568 (2019) (stating that, though the Census Act “confers broad
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Judge Jackson’s opinions considering whether an action is committed to agency discretion by
law, and therefore unreviewable in court, reflect a case-by-case assessment of the APA’s
applicability. When Department of Health and Human Services (HHS) grantees challenged
HHS’s termination of their grants, Judge Jackson recognized that an agency’s decision of how
best to use appropriated funds can be an example of an action that is committed to agency
discretion by law.168 However, HHS had promulgated regulations limiting its discretion to
terminate grants, providing “meaningful standards” on which to base judicial review under the
APA.169 She went on to hold that HHS had not provided the “reasoned analysis” of its decision
that the APA requires.170
In another case, the nominee held that though a statute gave the Secretary of the Department of
Homeland Security (DHS) the “sole and unreviewable discretion” to designate categories of
aliens as subject to expedited removal,171 this provision did not grant “sole discretion to determine
the manner in which that decision will be made.”172 According to Judge Jackson, this meant that
although they could not challenge which categories of persons DHS had chosen to designate as
subject to expedited removal, plaintiffs could maintain claims that DHS’s designation violated the
APA’s procedural requirements.173 On appeal, the D.C. Circuit rejected that conclusion, holding
instead that Congress’s broad delegation “confine[d] the judgment to the Secretary’s hands and,
in so doing, inescapably [sought] to withdraw the decision from APA review”—not only barring
review of the decision’s substance, but also making APA procedural requirements inapplicable to
such cases.174
The nominee has also concluded that some cases presented the “rare” instance of an action that
was committed to an agency’s discretion by law. In a case challenging the Department of the
Interior’s refusal to exclude an area from a critical habitat designation under the Endangered
Species Act, Judge Jackson reasoned that the statute did not “‘provide a standard by which to
judge’” the exclusion decision.175 Examining a statute providing that the U.S. Coast Guard “may”
grant departure clearance to a vessel suspected of violating certain environmental laws “upon the
filing of a bond or other surety satisfactory to the Secretary,”176 Judge Jackson likewise found no
APA cause of action for plaintiffs challenging the decision to impose additional, nonfinancial
authority on the Secretary” for census matters, the Act did not provide unbounded discretion, and the taking of the
census was not an area “traditionally committed to agency discretion”); see also Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 410 (1971) (explaining that an action is committed to agency discretion where relevant statutes
are “drawn in such broad terms that in a given case there is no law to apply” (internal quotation marks omitted)).
168 Pol’y & Rsch., LLC v. U.S. Dep’t of Health & Hum. Servs., 313 F. Supp. 3d 62, 76 (D.D.C. 2018) (stating that such
funding decisions are “presumptively unreviewable”).
169 Id. at 83.
170 Id. at 84.
171 See “Immigration” infra.
172 Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1, 39 (D.D.C. 2019), rev’d and remanded sub nom. Make the
Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020).
173 Id. at 43.
174 See Make The Rd. N.Y., 962 F.3d at 632, 634.
175 Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp. 3d 35, 64 (D.D.C. 2015) (quoting Cape Hatteras
Access Pres. All. v. U.S. Dep’t of the Interior, 731 F. Supp. 2d 15, 29 (D.D.C. 2010)). At the time, Judge Jackson’s
conclusion was consistent with decisions reached in another judicial circuit. See Bear Valley Mut. Water Co. v. Jewell,
790 F.3d 977, 990 (9th Cir. 2015). In 2018, however, the Supreme Court reached the opposite conclusion. See
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370–72 (2018).
176 33 U.S.C. § 1908(e).
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conditions for departure clearance.177 The nominee concluded the statute’s text and structure gave
her no standards by which to assess the clearance decision, because even when the vessel owner
posted a satisfactory “bond or other surety,” the agency was not required to grant clearance.178 On
appeal, the D.C. Circuit disagreed with Judge Jackson, holding that the APA’s committed-toagency discretion exception did not foreclose a claim premised on the theory that nonfinancial
conditions exceeded the Coast Guard’s authority.179
Considering a distinct but related issue, Judge Jackson held in Center for Biological Diversity v.
Zinke that the APA did not authorize relief in a lawsuit seeking to compel the Department of the
Interior to complete an assessment of its environmental review policies.180 She noted that,
although the APA authorizes courts to “compel agency action unlawfully withheld or
unreasonably delayed,”181 Supreme Court precedent allowed judicial review only of “a discrete
agency action that it is required to take.”182 The nominee found that the claim before her did not
meet this standard, holding that while the governing statute required agencies to revise their
environmental review policies as necessary, it did not prescribe “any discrete agency action,” and
set “no fixed end point.”183 Discussing the respective roles of courts and administrative agencies,
Judge Jackson said in Center for Biological Diversity that “courts do not, and cannot, police
agency deliberations as a general matter.”184 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.”185
Agency Statutory Interpretations and Chevron Deference
To carry out the tasks delegated to them by Congress, federal agencies must interpret the statutes
authorizing their actions. Courts reviewing agency actions sometimes give special deference to
agencies’ interpretations of the statutes they administer, rather than adopting a different judicial
interpretation. Specifically, under a framework outlined by the Supreme Court in Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, courts engage in a two-step analysis to determine
whether to defer to an agency interpretation in an area where Congress has delegated
administrative authority to the agency.186 First, courts ask whether the statute is clear, in which
case “the court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.”187 This first step requires the court to engage in an ordinary statutory-interpretation
177 Watervale Marine Co. v. U.S. Dep’t of Homeland Sec., 55 F. Supp. 3d 124, 133 (D.D.C. 2014), aff’d on other
grounds, 807 F.3d 325 (D.C. Cir. 2015).
178 Watervale Marine Co., 55 F. Supp. 3d at 142 (stating even if, as plaintiffs contended, the statute authorized the
imposition of financial conditions only, the “Achilles heel” of plaintiffs’ reviewability argument was that the “statute
nevertheless appears to permit the Coast Guard to deny departure clearance altogether, or to require some additional
conditions before making the clearance decision”).
179 Watervale Marine Co., 807 F.3d at 330.
180 260 F. Supp. 3d 11, 16 (D.D.C. 2017).
181 5 U.S.C. § 706(1).
182 Ctr. for Biological Diversity, 260 F. Supp. 3d at 20 (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 64
(2004)).
183 Id. at 27.
184 Id. at 29.
185 Id.
186 467 U.S. 837, 842–43 (1984).
187 Id. at 842.
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inquiry, using the “traditional tools of statutory construction.”188 If the statute is ambiguous,
however, courts proceed to step two, in which they will defer to the agency’s interpretation so
long as it is reasonable.189 If a court reaches the second step, Chevron instructs it to defer even if
the court does not believe the agency’s interpretation is the best construction of the statute190—it
merely needs to be “permissible.”191
Chevron deference is premised on the idea that when Congress delegates authority to agencies, it
intends for agencies to fill in any “gap[s]” in the statute through reasonable interpretation.192 The
Supreme Court instructed in Chevron that judges should leave these open policy choices to the
political branches, which are more politically accountable and have greater institutional
competence to weigh policy considerations.193
A number of jurists, including a few sitting Supreme Court Justices, have criticized Chevron
deference and the presumption that Congress intended agencies, rather than courts, to resolve
statutory ambiguity.194 Accordingly, some judges have arguably narrowed the application of
Chevron deference over the past decade or so, in part by finding more readily that a statute is
unambiguous at Chevron’s first step.195 In addition, the Court has recently considered cases
raising the “major questions doctrine,” which can also narrow the circumstances in which
Chevron applies by demanding a clear statement from Congress when it delegates to agencies the
authority to resolve questions of major economic and political significance.196
As a district court judge, Judge Jackson was bound by governing precedent to apply Chevron’s
two-step framework to evaluate agency interpretations of statutes they administer. Accordingly, in
a number of cases, the nominee concluded that a statute failed to address the precise question
before the court and deferred to the agency’s reasonable construction of that statute.197 For
example, in American Meat Institute v. U.S. Department of Agriculture (USDA), a case discussed
later in this report,198 the nominee rejected a challenge to an agency regulation requiring
“country-of-origin labeling” for certain commodities.199 The plaintiffs argued that the regulation
went beyond the governing statute by requiring additional information and by banning the
commingling of animal cuts from different countries of origin.200 On both issues, Judge Jackson
188 Id. at 843 n.9.
189 Id. at 843.
190 See, e.g., Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009).
191 Chevron U.S.A., Inc., 467 U.S. at 843.
192 Id. at 843–44.
193 Id. at 865–66.
194 See, e.g., CRS Legal Sidebar LSB10204, Deference and its Discontents: Will the Supreme Court Overrule
Chevron?, by Valerie C. Brannon and Jared P. Cole.
195 See id.
196
See id.; see also, e.g., Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 667–68 (2022) (Gorsuch, J., concurring).
197 See, e.g., Las Ams. Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 30 (D.D.C. 2020) (concluding agency
interpretation authorizing the placement of asylum seekers subject to expedited removal in Customs and Border
Protection facilities was reasonable in light of Congress’s clear intent as demonstrated in text and Supreme Court
precedent); Otsuka Pharm. Co. v. Burwell, 302 F. Supp. 3d 375, 394, 399 (D.D.C. 2016) (concluding statute governing
exclusivity periods for new drugs did not unambiguously bar agency’s reading, looking to law’s text, structure, and
legislative history, and upholding agency interpretation as reasonable), aff’d, 869 F.3d 987 (D.C. Cir. 2017).
198 See “First Amendment” infra.
199 968 F. Supp. 2d 38, 68 (D.D.C. 2013) (holding the plaintiffs were unlikely to succeed on their statutory challenges
and denying preliminary injunction), aff’d, 746 F.3d 1065 (D.C. Cir. 2014).
200 Id. at 52.
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concluded at Chevron’s first step that Congress had not expressly spoken to the precise question
and, at Chevron’s second step, held that the statutory text likely supported the agency’s
reading.201 In a couple of other cases, the nominee expressly concluded that deference was
appropriate because Congress delegated broad authority to the agency, and the agency previously
exercised that authority in such a way as to develop expertise on the debated issue—making
Chevron’s underlying presumption explicit.202
In a few cases, Judge Jackson held that agency interpretations were not entitled to deference
under the Chevron framework. 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 under
Chevron’s first step.203 More recently, in Kiakombua v. Wolf, Judge Jackson vacated 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
would receive further review.204 She believed that portions of the manual were “manifestly
inconsistent with the two-stage asylum eligibility framework” established by the unambiguous
governing statute, seemingly failing Chevron’s first step, and other portions were “unreasonable
interpretations of the . . . statutory scheme,” failing Chevron’s second step.205
Review of Agency Decisions as Arbitrary or Capricious
In cases where an agency’s statutory interpretation is not subject to review under Chevron, the
APA provides standards for courts to review agency action. Notably, the APA instructs courts to
hold unlawful any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.”206 This “arbitrary and capricious” review can overlap with a
Chevron step-two analysis because both evaluate the substance of an agency’s reasoning and its
compliance with governing law.207 But it also encompasses inquiry into whether the agency’s
decision is supported by the administrative record and whether the agency has adequately
explained its reasoning.208
The scope of arbitrary-and-capricious review “is narrow,” and the court will not “substitute its
judgment for that of the agency.”209 Accordingly, for example, Judge Jackson rejected an
arbitrary-and-capricious challenge to an agency rule prescribing procedures for the election of
201 Id. at 53–68. In evaluating the second statutory issue, the nominee also noted that the law’s legislative history
“amply support[ed]” a reading concluding that Congress did not address commingling. Id. at 65.
202 See Las Ams. Immigrant Advoc. Ctr., 507 F. Supp. 3d at 31; Am. Fed’n of Gov’t Emps. v. Trump, 318 F. Supp. 3d
370, 386 (D.D.C. 2018), rev’d and vacated, 929 F.3d 748 (D.C. Cir. 2019).
203 Depomed, Inc. v. U.S. Dep’t of Health & Human Servs., 66 F. Supp. 3d 217, 233 (D.D.C. 2014).
204 498 F. Supp. 3d 1, 11 (D.D.C. 2021).
205
Id. at 38; see also id. at 43 (stating that the manifestly inconsistent portions contradicted the law’s “unambiguous
text”); id. at 44 (saying that “in Chevron . . . parlance,” the unreasonable provisions “exceeded the reasonable
boundaries of any ambiguity to be found in the statute and related regulations”).
206 5 U.S.C. § 706(2)(A).
207 See, e.g., Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011). See also, e.g., Otay Mesa Prop., L.P. v. U.S. Dep’t of the
Interior, 344 F. Supp. 3d 355, 366 (D.D.C. 2018) (“[T]his Court has determined that, even after granting the [Fish and
Wildlife Service] the deference that it is due under Chevron, the agency’s identification of the geographical area
occupied by the Riverside fairy shrimp was unreasonable and therefore arbitrary and capricious, which means that the
resulting occupied critical habitat determination violated the APA.”).
208 See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983).
209 Id. at 43.
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employee representatives for collective bargaining because she believed the agency had
sufficiently explained its reasoning and demonstrated its consideration of relevant factors.210
By contrast, Judge Jackson has concluded that an agency violates the APA’s arbitrary-andcapricious standard when it “changes course abruptly without a well-reasoned explanation for its
decision” or acts “contrary to its own regulations.”211 In the nominee’s first opinion for the D.C.
Circuit, American Federation of Government Employees v. Federal Labor Relations Authority
(FLRA), she held that the FLRA violated the APA when it failed to sufficiently justify its decision
to raise the threshold for collective bargaining for certain federal employees.212 The nominee
described the FLRA’s statement announcing the new policy as “cursory,” finding it failed to
acknowledge or justify the agency’s departure from “thirty-five years of precedent” following a
different standard.213 Her opinion for the panel concluded that the agency did not sufficiently
explain “the purported flaws” of its prior standard.214 In her view, the FLRA’s attempted
explanations were inconsistent and lacked merit, seeming to “simply . . . demonstrate how” the
prior standard worked rather than demonstrating it was “unworkable.”215 Nor did the FLRA
sufficiently explain why the new standard was “better.”216
Business and Employment Law
While serving on the district court, Judge Jackson adjudicated numerous business-related claims,
including litigation between businesses and disputes between employers and employees. The
nominee’s written decisions in these cases largely involve motions to dismiss and motions for
summary judgment filed by employer defendants. Many of these cases were resolved in favor of
the employer, particularly those decided at summary judgment.217
Though both dismissal and summary judgment may conclude a case, their ramifications are often
different: a court may dismiss claims without prejudice and thereby allow a plaintiff to refile the
claims,218 whereas summary judgment fully and finally resolves claims.219 Judge Jackson on
210 AFL-CIO v. NLRB, 471 F. Supp. 3d 228, 234 (D.D.C. 2020).
211 Pol’y & Rsch., LLC v. U.S. Health & Hum. Servs., 313 F. Supp. 3d 62, 67 (D.D.C. 2018); see also id. at 74–75
(holding that shortening project periods for HHS grants “without explanation and in contravention of the regulations
was an arbitrary and capricious act in violation of the APA”). See also, e.g., XP Vehicles, Inc. v. Dep’t of Energy, 118
F. Supp. 3d 38, 79 (D.D.C. 2015) (allowing arbitrary-and-capricious challenge to proceed where the plaintiffs alleged
that, in evaluating a grant application, the agency “relied on impermissible considerations,” such as political
connections, “that ran counter to the evidence before it and the applicable regulations”).
212 25 F.4th 1, 2–3 (D.C. Cir. 2022).
213 Id. at 11–12.
214 Id. at 5.
215 Id. at 5–7.
216 Id. at 10.
217 See, e.g., Keister v. AARP Benefits Comm., 410 F. Supp. 3d 244 (D.D.C. 2019) (granting summary judgment for
defendant employer in disability benefits litigation based on language of release signed by employee), aff’d, 839 F.
App’x 559 (D.C. Cir. 2021); Crawford v. Johnson, 166 F. Supp. 3d 1, 9 (D.D.C. 2016), rev’d in part sub nom.
Crawford v. Duke, 867 F.3d 103 (D.C. Cir. 2017) (granting summary judgment for defendant employer in
discrimination litigation based on failure to exhaust administrative remedies); Manus v. Hayden, No. 18-1146, 2020
WL 2615539, at *1 (D.D.C. May 23, 2020) (granting summary judgment for defendant employer in discrimination
litigation because defendant did not take adverse employment action in response to employee protected activity).
218 See generally FED. R. CIV. P. 41 (describing certain dismissals as “adjudication[s] on the merits” while others act as
dismissals “without prejudice”).
219 See generally FED. R. CIV. P. 56 (describing circumstances in which summary judgment shall be granted), 54
(describing effects of judgment on a claim).
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several occasions has indicated a reluctance to dispose entirely of employee claims at the motion
to dismiss stage, preferring to allow discovery before reaching a final decision.220
The nominee’s analysis in Ross v. U.S. Capitol Police, an employment discrimination case,
provides an illustration.221 In Ross, Judge Jackson addressed a motion to dismiss that the U.S.
Capitol Police asked to be treated in the alternative as a motion for summary judgment.222 Judge
Jackson first observed that binding precedent counsels district court judges to adjudicate
summary judgment motions “after the plaintiff has been given adequate time for discovery.”223
The nominee considered that general principle to be especially important in employment
discrimination cases, where a plaintiff’s success often depends on the fact-intensive question of
whether a defendant’s proffered reasons for taking an employment action are pretextual.224 As
Judge Jackson observed, without the benefit of discovery:
it is hard to fathom that the plaintiff would be able to present any evidence related to the
employer’s reasons for the adverse employment action at all, much less evidence that
would be a sufficient basis upon which a rational jury could conclude that “the defendant
intentionally discriminated [or retaliated] against the plaintiff.” 225
Based on this analysis, Judge Jackson concluded that a motion for summary judgment was
premature, ultimately denying the motion to dismiss with respect to the plaintiff’s discrimination
and retaliation claims.226
By contrast, Judge Jackson reached a different conclusion in Crawford v. Johnson.227 In that case,
DHS filed a motion to dismiss, or in the alternative for summary judgment, with respect to
employment discrimination claims brought under Title VII of the Civil Rights Act by the plaintiff,
James Crawford, based on three incidents.228 The motion turned on the legal question of whether
Crawford failed to exhaust his administrative remedies by including the three incidents in the
attachments to his formal Equal Employment Opportunity (EEO) complaint, rather than in the
complaint itself.229 Judge Jackson determined that information contained only in exhibits was not
incorporated into the complaint.230 To reach this conclusion, the nominee first looked to the
language of the statute’s exhaustion requirement, which requires that an EEO complaint “contain
220 See, e.g., Lawson v. Sessions, 271 F. Supp. 3d 119, 136 (D.D.C. 2017) (dismissing Title VII claims but denying
motion to dismiss claims under the Age Discrimination in Employment Act); Barber v. D.C. Gov’t, 394 F. Supp. 3d 49,
57 (D.D.C. 2019) (denying in part motion to dismiss employment discrimination claims); Alma v. Bowser, 159 F.
Supp. 3d 1, 3 (D.D.C. 2016) (denying motion to dismiss Title VII employment discrimination claims); Nagi v. Chao,
No. 16-2152, 2018 WL 4680272, at *4 (D.D.C. Sept. 28, 2018) (denying motion to dismiss for discrimination and
retaliation claims, and granting motion to dismiss for hostile work environment claims). But see Crawford v. Johnson,
166 F. Supp. 3d 1, 4 (D.D.C. 2016) (granting motion to dismiss converted into motion for summary judgment in Title
VII case), rev’d in part sub nom. Crawford v. Duke, 867 F.3d 103 (D.C. Cir. 2017).
221 195 F. Supp. 3d 180 (D.D.C. 2016).
222 Id. at 188.
223 Id. at 192 (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997)).
224 Id. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (setting forth the “burden-shifting”
framework applied in employment discrimination claims brought under Title VII).
225 Ross, 195 F. Supp. 3d at 194 (quoting Brady v. Office of Sgt. at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)
(alteration in original)).
226 Id. at 194, 201.
227 166 F. Supp. 3d 1 (D.D.C. 2016), rev’d in part sub nom. Crawford v. Duke, 867 F.3d 103 (D.C. Cir. 2017).
228 Id. at 4; see 42 U.S.C. § 2000e-16(c) (providing that an employee may only file a civil action once the employee has
undertaken necessary administrative steps).
229 Crawford, 166 F. Supp. 3d at 4.
230 Id. at 9.
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such information and be in such form as the [EEO Commission] requires.”231 Turning to EEO
Commission regulations, Judge Jackson observed that an EEO complaint must “describe
generally the action(s) or practice(s) that form the basis of the complaint.”232 After considering
relevant court decisions, Judge Jackson held that information about these incidents included only
in exhibits was insufficient for Crawford to have exhausted his administrative remedies.233
Accordingly, she granted DHS’s motion for summary judgment.234 On appeal, the D.C. Circuit
reversed Judge Jackson’s decision in part, holding that Crawford’s claims on two of the three
instances could proceed.235 Relying on D.C. Circuit case law and authority from other federal
courts of appeals, the D.C. Circuit concluded that exhibits are “part of the complaint itself” for
exhaustion purposes.236
At first blush, the outcomes in Ross and Crawford may appear to be in tension with each other.
Judge Jackson’s approach in both of these cases, however, may reflect a common approach that
focuses on the value of a consistent judicial and administrative process. In Ross, her decision to
deny summary judgment and allow discovery on some claims was based on what she
characterized as the court’s “ordinary practice” in adjudicating employment discrimination
claims.237 Judge Jackson dismissed other claims in Ross based on a failure to adhere to a
statutorily-prescribed process.238 In Crawford, Judge Jackson granted summary judgment before
discovery occurred, but that decision was based solely on Crawford’s alleged failure to comply
with the required process, rather than the substance of his claims.239
Judge Jackson’s decision in Njang v. Whitestone Group, Inc. also illustrates this approach.240
Njang involved employment discrimination claims brought under both Title VII of the Civil
Rights Act and 42 U.S.C. § 1981, a federal statute that prohibits racial discrimination. One issue
in Njang was whether six months was a “reasonable” period in which to bring an action under
either Title VII or Section 1981.241 On a motion for summary judgment, Judge Jackson held that
six months was a reasonable period in which to bring Section 1981 claims because the statute,
which was silent on the question, lacked “features that would make filing a claim within six
months impracticable, such as an administrative exhaustion requirement.”242 Conversely, “the
procedure for bringing a Title VII claim is far more involved and time-consuming than the
procedure for bringing a Section 1981 claim,” and requiring that process to be completed in six
231 Id. (quoting 42 U.S.C. § 2000e-5(b)).
232 Id. (quoting 29 C.F.R. § 1614.106(c)).
233 Id. at 9–10 (citing Dick v. Holder, 80 F. Supp. 3d 103, 112–13 (D.D.C. 2015)).
234 Id. at 4.
235 Crawford v. Duke, 867 F.3d 103, 116 (D.C. Cir. 2017).
236 Id.
237 Ross v. U.S. Capitol Police, 195 F. Supp. 3d 180, 194 (D.D.C. 2016).
238 Id. at 196 (holding plaintiff failed to satisfy procedural prerequisites for two of his three claims).
239 See Crawford, 166 F. Supp. at 9; see also, e.g., Lawson v. Sessions, 271 F. Supp. 3d 119, 130 (D.D.C. 2017)
(dismissing Title VII claims for failure to exhaust). Contra Nagi v. Chao, No. 16-2152, 2018 WL 4680272, at *3
(D.D.C. Sept. 28, 2018) (dismissing hostile work environment claims because “the complaint’s allegations . . . fail to
state a plausible claim for relief under a hostile work environment theory”).
240 187 F. Supp. 3d 172 (D.D.C. 2016).
241 See id. (citing Order of United Com. Travelers of Am. v. Wolfe, 331 U.S. 586, 608 (1947) (holding that a
contractual term shortening the time for bringing an action is only enforceable “if the shorter period itself [is] a
reasonable period”)).
242 Id. at 178 (citing Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1205 (7th Cir. 1992)).
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months would have “the practical effect of waiving employees’ substantive rights under Title
VII.”243
Another case, Ross v. Lockheed Martin, involved a proposed class action alleging employment
discrimination under Title VII.244 In Lockheed, two plaintiffs negotiated a $22.8 million
settlement on behalf of a proposed class of African-American employees who received negative
performance ratings while employed by the defendant.245 Judge Jackson declined to certify the
class preliminarily or approve this settlement, finding that the settlement agreement was unfair to
members of the proposed class.246 She focused on the settlement agreement’s requirement that
class members release the defendant from “all types of racial discrimination claims,” including
those unrelated to the class action claims.247 Judge Jackson was unequivocal in condemning the
scope of this release:
[I]t is shocking to this Court that counsel for the putative class members would contend
that a release this broad and consequential is a “fair” bargain as it relates to the absent
individuals whose potential legal claims are effectively extinguished by it. 248
This problem was compounded by the “minuscule amount of information” that the settlement
would provide to class members, even though failing to respond to a notice of the class action
would preclude them from receiving compensation.249
Judge Jackson’s decision in Lockheed was adverse to the named plaintiffs, but her analysis in
refusing to approve the proposed settlement was rooted in concerns about the case’s impacts on
unnamed class members. This may fit within an overall pattern in Judge Jackson’s employmentlaw decisions, which includes decisions favorable to employers and employees that frequently
turn on procedural grounds.250
Judge Jackson has written fewer decisions involving disputes between businesses, and thus
patterns are harder to divine. In a trademark infringement and unfair competition case, the
nominee issued a ruling in favor of the plaintiff following a full bench trial.251 In another case
involving a conflict between a restaurant and its franchisee, Judge Jackson ruled that the
restaurant had violated certain state laws regarding disclosure and registration of its franchise
243 Id. at 180.
244 267 F. Supp. 3d 174, 178 (D.D.C. 2017).
245 Id.
246 Id. at 201.
247 Id. at 202.
248 Id.
249 Id. at 202–03.
250 See, e.g., Keister v. AARP Benefits Comm., 410 F. Supp. 3d 244, 247 (D.D.C. 2019) (granting summary judgment
for defendant employer in disability benefits litigation based on language of release signed by employee); Crawford v.
Johnson, 166 F. Supp. 3d 1, 9 (D.D.C. 2016) (granting summary judgment for defendant employer in discrimination
litigation based on failure to exhaust administrative remedies), rev’d in part sub nom., Crawford v. Duke, 867 F.3d 103
(D.C. Cir. 2017); Sickle v. Torres Advanced Enter. Sols., 17 F. Supp. 3d 10, 26–27 (D.D.C. 2013) (dismissing
discrimination claims based on failure to exhaust administrative remedies), aff’d in part, 884 F. 3d 338 (D.C. Cir.
2018); see also Willis v. Gray, No. 14-1746, 2020 WL 805659, at *2 (D.D.C. Feb. 18, 2020) (dismissing certain
employment discrimination claims, but not others, based on whether the claims were resolved in prior litigation brought
by plaintiff’s union or whether the claims were barred by a statute of limitations).
251 Yah Kai World Enters., Inc. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016).
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agreement with state authorities, but determined that these violations had not harmed the
franchisee.252
Civil Procedure and Jurisdiction
The Supreme Court routinely hears cases involving questions of federal court jurisdiction (the
power of federal courts to decide cases) and civil procedure (the statutes and rules governing how
cases are litigated in federal court). In recent years, many decisions on those subjects have been
unanimous or near-unanimous.253 During this period, however, the Court has also closely divided
on certain procedural questions,254 including in ways that perhaps do not align with a
conventional view of the Court’s 5-4 decisions.255
Particularly in her role as a district court judge, Judge Jackson has resolved many cases on
procedural grounds. Some of those cases offer limited insight into how the nominee would
approach cases on the Supreme Court if confirmed: the lower federal courts consider a significant
volume of claims that are legally straightforward or even frivolous. Judge Jackson dismissed
dozens of cases for failure to state a valid claim for relief or satisfy minimum pleading
requirements.256 A number of Judge Jackson’s procedural rulings, however, implicate important
questions about the role and authority of the federal courts and may offer some guidance on how
she might rule on future procedural matters. This section examines a selection of the nominee’s
decisions on general procedural issues before looking at two specific areas of interest: standing
and sovereign immunity.
One procedural issue that has received significant attention from courts and commentators in
recent years is the appropriate scope of injunctive relief in challenges to government action.
Much of this discussion centers on nationwide injunctions, court orders that bar the government
from enforcing a challenged law or policy with respect to all persons, regardless of whether they
are parties to the litigation.257 The Supreme Court has considered multiple cases involving
nationwide injunctions in recent years, and several Justices have opined on the practice in
252 A Love of Food I, LLC v. Maoz Vegetarian USA, Inc.,70 F. Supp. 3d 376, 405 (D.D.C. 2014).
253 See, e.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1022 (2021) (unanimous; Barrett, J., not
participating) (addressing personal jurisdiction); Fort Bend Cnty., Tex. v. Davis, 139 S. Ct. 1843, 1846 (2019)
(unanimous) (addressing the forfeiture of arguments); Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam) (eightJustice majority remanding to court of appeals to address constitutional standing questions); Nutraceutical Corp. v.
Lambert, 139 S. Ct. 710, 715 (2019) (unanimous) (addressing whether a deadline is subject to equitable tolling); New
Prime Inc. v. Oliveira, 139 S. Ct. 532, 537, 539 (2019) (seven-Justice majority; Kavanaugh, J., not participating)
(addressing which issues are appropriate for courts and arbitrators to decide); Henry Schein, Inc. v. Archer & White
Sales, Inc., 139 S. Ct. 524, 529 (2019) (unanimous) (same).
254 See, e.g., Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1419 (2019) (majority opinion of Roberts, C.J., joined by
Thomas, Alito, Gorsuch, and Kavanaugh, JJ.) (“Courts may not infer from an ambiguous agreement that parties have
consented to arbitrate on a classwide basis.”).
255 See Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1747–51 (2019) (majority opinion of Thomas, J., joined
by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.) (holding that a third-party counterclaim defendant may not remove a
case to federal court under either the general removal statute or the Class Action Fairness Act).
256 E.g., Shaw v. Ocwen Loan Servicing, LLC, No. 14-cv-2203, 2015 WL 4932204, at *1 (D.D.C. Aug. 18, 2015)
(dismissing complaint sua sponte under Federal Rules of Civil Procedure 8(a) and 12(b)(6)); Pencheng Si v. Laogai
Rsch. Found., 71 F. Supp. 3d 73, 79 (D.D.C. 2014) (granting in part motion to dismiss False Claims Act claims for
failure to comply with the pleading requirements of Federal Rule of Civil Procedure 9(b)). See also “The Role of a U.S.
District Judge” supra.
257 See generally CRS Report R46902, Nationwide Injunctions: Law, History, and Proposals for Reform, by Joanna R.
Lampe.
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separate opinions, but a majority of the Supreme Court has yet to issue clear guidance on the
overall legal status of nationwide injunctions.258
Judge Jackson considered the proper scope of an injunction against the government in the 2019
case Make the Road New York v. McAleenan.259 In that case, the nominee held that a DHS policy
designating for expedited removal certain persons who entered the United States unlawfully was
likely issued in violation of the APA and must be enjoined.260 Having determined that an
injunction was warranted, Judge Jackson rejected the government’s argument that any injunction
should be limited to barring enforcement against the plaintiffs before the court.261 She noted:
“Ordinarily, in the wake of an unfavorable judgment from a federal court regarding procedural
claims brought under the APA, agency actors willingly refrain from imposing on anyone the rule
that a federal court has found to be unlawful.”262 The government’s request to continue to enforce
the policy against non-parties, she reasoned, was
a terrible proposal that is patently inconsistent with the dictates of the law. Additionally, it
reeks of bad faith, demonstrates contempt for the authority that the Constitution’s Framers
have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full
measure of the remedy to which they are entitled. 263
On appeal, the D.C. Circuit reversed Judge Jackson’s decision, holding that the agency’s action
was not subject to judicial review. Having done so, the appeals court did not address the scope of
injunctive relief that would be available.264
Judge Jackson’s time on the district court appears to have given her a keen understanding of the
practical impact of appellate court procedural rulings. In both district court and D.C. Circuit
decisions, she has expressed strong views on appeals court rulings that vacate district court
decisions. As one example, in Maryland v. U.S. Department of Education, Judge Jackson
dismissed for lack of standing a challenge by state attorneys general to the Department’s failure
to implement certain regulations concerning deceptive marketing by for-profit colleges.265 While
an appeal of that district court ruling was pending, a new rule rescinding the regulations took
effect, and the states requested that the D.C. Circuit vacate the district court’s order because the
case was moot. In a summary order, the D.C. Circuit granted the motion for vacatur and
remanded the case to the district court with instructions to dismiss as moot.266 Vacatur meant that
the district court opinion on standing had no legal effect, including as precedent, even though the
court of appeals had not reviewed the substance of the opinion or determined whether it was
erroneous.
Judge Jackson heeded the appellate court’s directions on remand, but wrote an opinion, “from the
standpoint of the district court,” objecting to the vacatur.267 She asserted that the D.C. Circuit’s
258 See id. at 10.
259 405 F. Supp. 3d 1 (D.D.C. 2019), rev’d sub nom. Make The Road N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020); see
also “Immigration” section.
260 Id. at 44–66.
261 Id. at 66.
262 Id.
263 Id.
264 Make The Road N.Y., 962 F.3d at 618. But see id. at 647 & n.16 (Rao, J., dissenting) (finding “especially
problematic” the district court’s entry of a nationwide injunction).
265 474 F. Supp. 3d 13, 20 (D.D.C. 2020), vacated, No. 20-5268, 2020 WL 7868112 (D.C. Cir. Dec. 22, 2020).
266 Maryland v. U.S. Dep’t of Ed., No. 20-5268, 2020 WL 7868112 (D.C. Cir. Dec. 22, 2020).
267 Maryland v. U.S. Dep’t of Ed., No. 17-cv-2139, 2020 WL 7773390, at *1 (D.D.C. Dec. 29, 2020).
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willingness to grant vacatur in such cases “appears to have resulted in the seemingly unnecessary
nullification of a district court’s contribution to the body of common law reasoning concerning
Article III standing.”268 The nominee’s opinion, drafted more like a dissent than a typical trial
court opinion, warned that the practice of vacatur “rewards gamesmanship concerning complex
mootness questions, raises the specter of [an] end-run around established norms of appellate
procedure, . . . and has significant downstream consequences.”269
Judge Jackson remained interested in the issue of vacatur after her appointment to the D.C.
Circuit. In February 2022, Judge Jackson sat on a motions panel of the D.C. Circuit that issued an
order dismissing an appeal as moot, but denied a request to vacate the underlying district court
judgment.270 The nominee filed an opinion concurring in the panel’s disposition, emphasizing that
vacatur of a district court decision that has become moot is an extraordinary remedy that should
be granted only when required out of fairness to the parties.271 She asserted that “rote vacatur of
district court opinions, without merits review and simply because the dispute is subsequently
mooted, is inconsistent with well-established principles of appellate procedure and practice.”272
Judge Jackson wrote:
[T]he dispute-and-decision bell cannot be unrung—there was a dispute and someone was
declared the winner. Written opinions are the most accurate historical record of what the
supervising court thought of those events. And in a common law system of case-by-case
adjudication, that history need not, and should not, be cavalierly discarded.273
These opinions on the subject of vacatur provide insight into Judge Jackson’s views not only on a
narrow issue of appellate procedure, but also on the respective roles of district and appellate
courts and the value of precedents as part of an ever-growing body of case law.
More generally, Judge Jackson’s procedural decisions evince care and attention to detail, even in
cases that are legally straightforward. In one case, for instance, Judge Jackson considered claims
by unrepresented individuals challenging the foreclosure on their home.274 A magistrate judge
determined that the plaintiffs had failed to serve the defendants properly and recommended that
the case be dismissed. The nominee reviewed the magistrate judge’s findings and agreed that
service had been defective.275 However, she further concluded that the plaintiffs, who were not
represented by counsel, “were never given a clear explanation of why their prior attempts at
service were deemed deficient, and they were not provided the customary notice of the
consequences of their failure to effect proper service upon Defendants.”276 She thus declined to
dismiss the case and granted the plaintiffs “one more opportunity to effect proper service.”277
In another case, the nominee granted in part and denied in part a motion to dismiss employment
discrimination and retaliation claims by a former D.C. public school teacher.278 Although she
268 Id.
269 Id.
270 I.A. v. Garland, No. 20-5271, 2022 WL 696459, at *1 (D.C. Cir. Feb. 24, 2022).
271 Id. at *3 (statement of Jackson, J.).
272 Id.
273 Id. at 3–4.
274 Raja v. Fed. Deposit Ins. Corp., No. 16-cv-0511, 2018 WL 818393, at *1 (D.D.C. Feb 12, 2018).
275 Id.
276 Id.
277 Id.
278 Willis v. Gray, No. 14-cv-1746, 2020 WL 805659, at *1 (D.D.C. 2020).
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observed that the complaint was “not a model of clarity,” Judge Jackson parsed each claim to
determine which claims were precluded by past litigation, which were time-barred, and which
could proceed.279
In a 2017 environmental case, Judge Jackson granted a motion to transfer litigation involving elk
feeding sites in Wyoming to the Wyoming District Court, holding that such matters were “plainly
local in character and were best left to Wyoming’s courts.”280 The nominee declined to criticize
prior District of D.C. decisions that emphasized the “iconic” nature and national significance of
the Jackson elk, but wrote that the narrow question before her was only whether the litigation was
“necessarily national in scope.”281
In another case, Judge Jackson denied a motion to dismiss as duplicative in a case where similar
claims were pending in both the District of D.C. and the District of West Virginia.282 While she
critiqued the government’s motion to dismiss as “a calculated attempt to force [the plaintiff] to
pursue its APA claims in federal court in West Virginia, despite the fact that [the plaintiff] has
selected the instant forum and without due regard to the most pertinent equitable considerations,”
she ultimately declined to endorse either party’s position in full.283
In a 2017 tort case, Washington Metropolitan Area Transit Authority (WMATA) v. Ark Union
Station, Inc., Judge Jackson declined to dismiss a claim in which WMATA alleged that the
defendant’s negligence caused a water leak that damaged Metro facilities.284 The nominee held
that, under a provision of the D.C. Code based on the common law nullum tempus doctrine, the
statute of limitations did not run against WMATA because the agency’s negligence suit sought to
vindicate public rights.285 While Judge Jackson stated she was “extending the benefit of nullum
tempus to WMATA in this case,” she emphasized that her holding was rooted in authoritative
interpretations of D.C. law from the D.C. Court of Appeals and was limited to the tort claims
before her.286
Standing
One key procedural issue that has arisen in a number of Judge Jackson’s cases is standing—the
constitutional requirement that any plaintiff who sues in federal court must have a concrete,
personal interest in the litigation, rather than simply raising a generalized policy objection or
other grievance.287 To establish standing, a plaintiff must show that she has suffered (or will
imminently suffer) an injury in fact that is caused by the defendant and can be redressed by a
favorable court decision.288 If the plaintiff cannot demonstrate standing, the federal courts lack
279 Id. at *5.
280 W. Watersheds Project v. Tidwell, 306 F. Supp. 3d 350, 363 (D.D.C. 2017).
281
Id. at 363.
282 Coal River Mountain Watch v. U.S. Dep’t of the Interior, 146 F. Supp. 3d 17, 19–20 (D.D.C. 2015).
283 Id. at 20.
284 268 F. Supp. 3d 196, 200 (D.D.C. 2017).
285 Id. at 200; see also id. at 201 (explaining under the nullum tempus doctrine, a sovereign is immune from statutes of
limitations).
286 Id. at 211.
287 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also “Standing and Procedural Issues in
Environmental Law Cases” infra.
288 Lujan, 504 U.S. at 560–61.
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jurisdiction to consider the claim.289 The doctrine of standing, although procedural on its face,
implicates broader questions about the public’s access to the courts and the constitutional limits
of judicial review.
Recognizing those broader questions, Judge Jackson has at times authored decisions that discuss
the standing doctrine’s origin and purpose. In a 2015 decision, Judge Jackson cited constitutional
text, judicial precedents, and a law review article by the late Associate Justice Antonin Scalia and
explained that the “standing doctrine is primarily rooted in the concern for maintaining the
separation of powers.”290 The nominee further opined that constitutional standing “acts as a
gatekeeper, opening the courthouse doors to narrow disputes that can be resolved merely by
reference to facts and laws, but barring entry to the broad disquiets that can be resolved only by
an appeal to politics and policy.”291 In another case, she wrote: “Boiled to bare essence, then, ‘the
standing question is whether the plaintiff has alleged such a personal stake in the outcome of the
controversy as to warrant [her] invocation of federal-court jurisdiction and to justify exercise of
the court’s remedial powers on [her] behalf.’”292
Under this rationale, Judge Jackson has held that plaintiffs without a sufficiently personal stake in
a case did not have standing. For instance, in New England Anti-Vivisection Society v. U.S. Fish &
Wildlife Service, Judge Jackson ruled that an animal welfare organization lacked standing to
challenge the grant of a wildlife export permit to transfer chimpanzees to a zoo in the United
Kingdom.293 While she noted that the plaintiffs raised “persuasive” arguments on the merits,
Judge Jackson held those plaintiffs “themselves must have a concrete and particularized injury in
fact that is actual or imminent, that is fairly traceable to Defendants’ actions, and that a federal
court’s decision can redress.”294 Likewise, in Feldman v. Bowser, Judge Jackson rejected a D.C.
taxpayer’s challenge to the D.C. Local Budget Autonomy Amendment Act of 2012 and large
portions of the D.C. budget enacted pursuant to the Act.295 Finding that the plaintiff sought
broadly “to challenge the method by which the District enacts its budget,”296 she wrote that “this
Court is not persuaded that it should expand the reach of the narrow standing exception available
to municipal taxpayers” without more precedential support.297
The doctrine of standing also governs access to courts by establishing when an association may
sue to protect the rights of its members. In Equal Rights Center v. Uber Technologies, Inc., Judge
Jackson considered claims that Uber discriminated against wheelchair users in violation of the
Americans with Disabilities Act and the D.C. Human Rights Act.298 The nominee held that a nonprofit organization dedicated to combatting disability discrimination had associational standing to
289 Id. at 561.
290 Food & Water Watch, Inc. v. Vilsack, 79 F. Supp. 3d 174, 185 (D.D.C. 2015), aff’d, 808 F.3d 905 (D.C. Cir. 2015).
291 Id. at 186. Judge Jackson cited this language in a number of her subsequent decisions. See, e.g., Fed. Forest Res.
Coal. v. Vilsack, 100 F. Supp. 3d 21, 34 (D.D.C. 2015); Cal. Clinical Lab. Ass’n v. Sec. of Health & Human Servs.,
104 F. Supp. 3d 66, 74 (D.D.C. 2015).
292 California Clinical Laboratory Ass’n, 104 F. Supp. 3d at 74 (quoting Warth v. Seldin, 422 U.S. 490, 498–99 (1975))
(alteration in original).
293 208 F. Supp. 3d 142, 148 (D.D.C. 2016); see also “Standing and Procedural Issues in Environmental Law Cases”
infra.
294 New England Anti-Vivisection Soc’y, 208 F. Supp. 3d at 148.
295 315 F. Supp. 3d 299, 302 (D.D.C. 2018).
296 Id. at 309.
297 Id. at 312.
298 525 F. Supp. 3d 62, 66 (D.D.C. 2021). For additional discussion of the substantive claims in this case, see “Civil
Rights and Qualified Immunity” section.
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challenge Uber’s policies. This was in part because one of the non-profit’s members alleged she
was “plausibly deterred from attempting to use Uber’s service” because she believed the
company would not accommodate her disability, and thus had incurred “a sufficient injury in fact
to support a finding that she has standing to sue in her own right.”299
One high-profile case discussed in greater detail elsewhere in this report raised a substantial
standing question.300 In Committee on the Judiciary v. McGahn, Judge Jackson held that a
congressional committee had standing to sue in federal court to enforce a subpoena issued to an
executive branch official.301 In response to a claim that the Committee had not suffered an injury
giving rise to standing, the nominee wrote that “no federal judge has ever held that defiance of a
valid subpoena does not amount to a concrete and particularized injury in fact.”302 She further
opined that this was “perhaps for good reason: if defiance of duly issued subpoenas does not
create Article III standing and does not open the doors of the court for enforcement purposes, it is
hard to see how the wheels of our system of civil and criminal justice could keep turning.”303
Sovereign Immunity and Suits Against Foreign Defendants
Two distinct but related procedural issues that Judge Jackson has confronted in multiple cases
involve questions of when sovereign entities are immune from suit304 and when U.S. federal
courts can hear claims involving foreign parties. These questions overlap when a U.S. court
considers whether to exercise its authority over a foreign sovereign.305
One of Judge Jackson’s opinions for the D.C. Circuit raised procedural issues implicating the
relationship between different federal courts as well as questions related to foreign sovereign
immunity. In Wye Oak Technology, Inc. v. Republic of Iraq, a D.C. Circuit panel including Judge
Jackson considered the government of Iraq’s claim of sovereign immunity in a contract dispute
with an American defense contractor.306 The case initially proceeded in a Virginia federal court
and before the Fourth Circuit. The Fourth Circuit allowed the claim against Iraq to proceed,
applying an exception to the Foreign Sovereign Immunities Act (FSIA) for claims arising from a
foreign sovereign’s commercial activities.307 Following transfer to the District of D.C., the district
court held that the “law of the case” doctrine required the D.C. federal courts to follow the Fourth
Circuit’s ruling.308 The district court also agreed with the Fourth Circuit’s substantive holding that
the FSIA’s commercial activity exception applied.309
On appeal, the D.C. Circuit reversed. In an opinion authored by Judge Jackson, the court held that
the law of the case doctrine did not control the D.C. Circuit’s FSIA analysis, in part because the
Fourth Circuit and the D.C. federal courts confronted the sovereign immunity claim at different
299 Equal Rights Ctr., 525 F. Supp. 3d at 79.
300 See “Standing” supra; “Separation of Powers” infra.
301 415 F. Supp. 3d 148, 154 (D.D.C. 2019).
302 Id. at 189.
303 Id.
304 For discussion of the related doctrine of qualified immunity, see “Civil Rights and Qualified Immunity” infra.
305 In addition to the cases discussed below, see, e.g., Mohammad Hilmi Nassif & Partners v. Republic of Iraq, No. 17-
cv-2193, 2020 WL 1444918 (D.D.C. Mar. 25, 2020).
306 24 F.4th 686 (D.C. Cir. 2022).
307 Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 207 (4th Cir. 2011).
308 Wye Oak Tech., Inc. v. Republic of Iraq, No. 10-cv-1182, 2019 WL 4044046, at *23 (D.D.C. Aug. 27, 2019).
309 Id.
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stages in the litigation.310 Looking to the FSIA’s text, judicial precedent, and legislative history,
the D.C. Circuit further held that the Fourth Circuit improperly applied the FSIA exception.311
However, concluding that another clause of the commercial activity exception might apply, the
panel remanded the case to the district court for further consideration.312
In an earlier district court case, SACE S.p.A. v. Republic of Paraguay, Judge Jackson considered a
dispute over the interpretation of the FSIA that she described as an issue of first impression in the
D.C. federal courts.313 The case involved a purported waiver of sovereign immunity by a
government official who lacked authority to effect such a waiver. Looking to persuasive authority
from other circuits, the nominee held that the suit must be dismissed because “the waiver
provision of the FSIA requires actual authority to waive the foreign state’s sovereign
immunity.”314
In Youssef v. Embassy of United Arab Emirates, Judge Jackson considered an age discrimination
claim from a former employee of the United Arab Emirates’ (UAE) Embassy in Washington,
D.C.315 The UAE and the Embassy claimed sovereign immunity under the FSIA. They also
argued that the claim must be dismissed under the federal enclave doctrine, which provides that
when the federal government acquires land from a state, “any state law that is enacted after the
federal government acquires the property is generally inapplicable on that property.”316 Judge
Jackson rejected both claims, holding that the case fell within the FSIA’s commercial activity
exception, and that the federal enclave doctrine does not apply to the D.C. laws.317
In Azima v. RAK Investment Authority, Judge Jackson denied a motion to dismiss Computer Fraud
and Abuse Act claims on the grounds of sovereign immunity.318 In their dispute over whether the
FSIA exception for commercial activity applied, the parties disagreed as a factual matter about
where an alleged computer hacking took place. Judge Jackson declined to resolve the factual
dispute, holding that
the text, structure, and purpose of the FSIA’s commercial activity exception all point to the
conclusion that, rather than mandating identification of the location of the foreign
sovereign’s allegedly tortious act, Congress’s primary concern is ensuring that a lawsuit
can be maintained if the foreign sovereign acts in a commercial capacity and undertakes a
harmful act that occurs in, or impacts, the United States.319
In another case, Judge Jackson disposed of claims against foreign defendants without reaching the
question of sovereign immunity.320 In In re Air Crash Over Southern Indian Ocean, the nominee
310 Wye Oak, 24 F.4th at 697.
311 Id. at 700. Wye Oak provides one example of Judge Jackson’s willingness to use a variety of tools in statutory
interpretation. See also “Statutory Interpretation” supra.
312 Wye Oak, 24 F.4th at 703.
313 243 F. Supp. 3d 21, 35–36 (D.D.C. 2017).
314 Id. at 24.
315 No. 17-cv-2638, 2021 WL 3722742 (D.D.C. Aug. 23, 2021).
316 Id. at *10.
317 Id. at *1.
318 305 F. Supp. 3d 149, 154 (D.D.C. 2018), rev’d, 926 F.3d 870 (D.C. Cir. 2019).
319 Id. at 171. Azima also raised the question of whether the suit against the foreign sovereign should take place in the
United Kingdom pursuant to the forum-selection clause in an agreement between the parties. Judge Jackson held that
the forum-selection clause did not apply. Id. at 172–76. On that issue, however, the nominee was later reversed by the
D.C. Circuit. See Azima v. RAK Inv. Auth., 926 F.3d 870 (D.C. Cir. 2019).
320 In re Air Crash Over Southern Indian Ocean, 352 F. Supp. 3d 19, 52–53 (D.D.C. 2018) (holding that existence of
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considered numerous claims arising from the disappearance of Malaysia Airlines Flight MH370.
She granted the defendants’ motion to dismiss on the ground of forum non conveniens, holding
that Malaysia provided an available and adequate alternative forum for the litigation.321 After
analyzing at length multiple factors that weighed for and against dismissal, she concluded that
none of the claims at issue were “ultimately more conveniently litigated in the United States than
in Malaysia.”322
Other Judge Jackson opinions involved claims of sovereign immunity by domestic state actors.323
For instance, in Mackinac Tribe v. Jewell, the Secretary of the Interior raised a sovereign
immunity defense in a suit seeking federal recognition of an Indian tribe.324 Judge Jackson held
that the United States had waived sovereign immunity with respect to the suit, but ultimately
dismissed it on other grounds.325 In Doe v. WMATA, a passenger who was sexually assaulted on a
Metro train sued WMATA, alleging the agency was negligent in failing to prevent the assault.326
Judge Jackson granted WMATA’s motion to discuss, holding that “WMATA has sovereign
immunity . . . under well-established precedents that demarcate the boundaries of governmental
and proprietary agency functions.”327
Civil Rights and Qualified Immunity
Judge Jackson has considered a number of civil rights cases, including claims against both private
entities and state actors.328 The nominee’s decisions in this area demonstrate her review of the
facts in each case and analysis of the applicable legal precedents. However, because these cases
are often highly fact-dependent, it is difficult to discern broader trends.
As one example, in Pierce v. District of Columbia, Judge Jackson considered disability
discrimination and retaliation claims brought by a deaf man who was incarcerated in the D.C.
Correctional Treatment Facility without accommodations such as access to an American Sign
Language interpreter.329 Judge Jackson ruled in favor of the plaintiff on his discrimination claims,
finding dispositive the fact that prison staff “did nothing to evaluate [the plaintiff’s] need for
accommodation, despite their knowledge that he was disabled.”330 Rejecting as “preposterous”
the government’s claim that the plaintiff had not requested accommodations for his disability, she
held that “the failure of prison staff to conduct an informed assessment of the abilities and
accommodation needs of a new inmate who is obviously disabled is intentional discrimination in
the form of deliberate indifference . . . as a matter of law.”331
sovereign immunity questions was one factor that weighed against U.S. courts considering the case), aff’d, 946 F. 3d
607 (D.C. Cir. 2020).
321 Id. at 37.
322 Id.
323 Sovereign immunity is also the basis for qualified immunity for government officials, which is treated separately in
this report. See “Civil Rights and Qualified Immunity” infra.
324 87 F. Supp. 3d 127, 130 (D.D.C. 2015).
325 Id. at 130.
326 453 F. Supp. 3d 354, 359 (D.D.C. 2020).
327 Id. at 364.
328 In addition to the cases discussed in this section, see “Business and Employment Law” supra.
329 128 F. Supp. 3d 250, 253 (D.D.C. 2015).
330 Id. at 254.
331 Id. at 268.
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In civil rights litigation against the government, Judge Jackson was often required to determine
whether the defendants could benefit from qualified immunity—the legal doctrine holding that
government officials performing discretionary duties are immune from suit unless they violate
clearly established law.332 Judge Jackson rejected a qualified immunity defense in Patterson v.
United States, holding that U.S. Park Police who arrested an individual for using profanity in a
public park violated clearly established law under the First and Fourth Amendments.333 The
nominee explained that there was “no dispute about the ‘clearly established’ nature of the basic
rights at issue.” 334 She further held that “no reasonable officer could conclude that [the plaintiff’s]
conduct was likely to produce violence or otherwise cause a breach of the peace, as required to
justify either punishing his speech under the First Amendment or arresting him for disorderly
conduct” under D.C. law.335
In Robinson v. Farley, Judge Jackson denied a motion to dismiss an array of statutory,
constitutional, and common law claims arising from the arrest of an intellectually disabled
man.336 The nominee rejected the defendants’ argument that the complaint must specify which
law enforcement officers engaged in what alleged misconduct, stating that such a requirement
could not “possibly be the state of the law.”337 She explained that, on a motion to dismiss, before
the plaintiffs could develop their factual claims through discovery, “it is impossible to imagine
that a complaint involving the allegedly wrongful conduct of a number of police officers could
ever contain the specificity that Defendants here say is required. And, indeed, existing precedent
clearly indicates that no such pleading standard exists.”338 Judge Jackson also rejected the
defendants’ attempt to raise “a fleeting ‘qualified immunity’ reference that is entirely devoid of
any relevant substance,” which she characterized as duplicating their specificity argument rather
than properly addressing the requirements of qualified immunity.339
In other cases, Judge Jackson has accepted defendants’ claims of qualified immunity. For
instance, in Pollard v. District of Columbia, Judge Jackson dismissed on qualified immunity
grounds claims arising from the arrest of an intellectually disabled man on drug charges.340 Judge
Jackson held that the arresting officers were entitled to qualified immunity on several claims
because the plaintiffs identified no infringement of the arrestee’s rights, let alone one that violated
clearly established law.341 Similarly, in Kyle v. Bedlion, Judge Jackson granted summary judgment
in favor of the government on claims of false arrest and use of excessive force in violation of the
Fourth and Fifth Amendments.342 The nominee concluded that the Fifth Amendment did not apply
to the plaintiff’s claims and, even if the Fourth Amendment could apply to the claims, the
332 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity analysis requires more than simply determining
whether the defendant government official violated the Constitution, because “a government official who violates the
constitution will be protected if his or her actions were reasonable in light of clearly established law and the
information the official possessed when he or she acted.” Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir.
1988).
333 999 F. Supp. 2d 300, 303 (D.D.C. 2013).
334 Id. at 312.
335 Id. at 315.
336 264 F. Supp. 3d 154, 156 (D.D.C. 2017).
337 Id. at 160.
338 Id.
339 Id. at 162.
340 191 F. Supp. 3d 58, 63 (D.D.C. 2016), aff’d, 698 F. App’x 616 (D.C. Cir. 2017).
341 Id. at 68.
342 177 F. Supp. 3d 380, 384 (D.D.C. 2016).
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defendant officers were entitled to qualified immunity because they did not violate a Fourth
Amendment right that was “clearly established.”343
Outside the qualified immunity context, in Jackson v. Bowser, the nominee considered
constitutional and common law claims against public and private actors involved in
redevelopment projects in the District of Columbia that allegedly caused displacement of lowincome residents, minorities, and seniors.344 Judge Jackson dismissed the case, holding that the
private defendants were not state actors subject to suit for constitutional violations and, with
respect to the government defendants, the plaintiff “failed to plead sufficient facts to support a
plausible inference that a District policy or custom caused him to suffer a constitutional
injury.”345
In Rothe Development, Inc. v. Department of Defense, Judge Jackson considered an equal
protection challenge under the Fifth Amendment’s Due Process Clause to a provision of the Small
Business Act that established a business development program for socially and economically
disadvantaged small business concerns.346 The nominee rejected the challenge, holding that the
plaintiff’s facial challenge required showing that “no set of circumstances” existed under which
the challenged provision would be valid, or that the provision lacked “any plainly legitimate
sweep,” and plaintiff failed to meet that high bar.347 The D.C. Circuit affirmed Judge Jackson’s
judgment, albeit on different grounds, and the Supreme Court denied review.348
Finally, in a discrimination case against a private defendant, Judge Jackson considered claims that
Uber discriminated against wheelchair users in violation of the Americans with Disabilities Act
and the D.C. Human Rights Act.349 After holding that the plaintiff organization had standing to
sue,350 as discussed above, Judge Jackson rejected Uber’s arguments that the relevant antidiscrimination statutes did not apply to the company, holding that the plaintiff made sufficiently
plausible claims of discrimination to survive a motion to dismiss.351
343 Id. at 389. Having dismissed the plaintiff’s federal claims, the nominee declined to exercise pendent jurisdiction
over the remaining D.C. law tort claims. Id. at 399–400.
344 No. 1:18-cv-1378, 2019 WL 1981041, at *1 (D.D.C. 2019).
345 Id. at *6. Having dismissed the plaintiff’s federal claims, the nominee declined to exercise pendent jurisdiction over
the remaining D.C. common law claims. Id. at *11.
346 107 F. Supp. 3d 183, 187 (D.D.C. 2015), aff’d, 836 F.3d 57 (D.C. Cir. 2016).
347 Id. at 207.
348 Rothe Dev., Inc. v. U.S. Dep’t of Defense, 836 F.3d 57, 63 (D.C. Cir. 2016), cert denied, 138 S. Ct. 354 (2017).
349 Equal Rights Ctr v. Uber Techs., Inc., 525 F. Supp. 3d 62, 66 (D.D.C. 2021).
350 Id. at 79. For additional discussion of the portion of the decision focused on standing, see supra “Standing.”
351 Equal Rights Ctr., 525 F. Supp. 3d at 81–89.
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Criminal Law and Procedure
Over the course of her academic352 and legal career,353 Judge Jackson wor
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