# The Nomination of Judge Ketanji Brown Jackson to the Supreme Court > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR47050 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** March 14, 2022 - **Citation:** R47050 ## Text 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 Congressional Research Service 1 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. Congressional Research Service 2 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). Congressional Research Service 3 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) Congressional Research Service 4 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). Congressional Research Service 5 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 Congressional Research Service 6 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 7 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 8 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 9 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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 Congressional Research Service 10 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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 Congressional Research Service 11 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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 Congressional Research Service 12 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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 Congressional Research Service 13 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 14 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 15 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 16 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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 Congressional Research Service 17 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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). Congressional Research Service 18 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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 Congressional Research Service 19 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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). Congressional Research Service 20 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 21 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 22 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 23 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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). Congressional Research Service 24 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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. Congressional Research Service 25 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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)). Congressional Research Service 26 The Nomination of Judge Ketanji Brown Jackson to the Supreme Court 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR47050. Public record. Not legal advice.