During the past seven days, Supreme Court Justice Ketanji Brown Jackson has basked in celebrations tied to her historic investiture and, in the newly reopened courtroom, become a dynamic presence at oral arguments.
Now, on Friday, in a small, oak-paneled room off the chambers of Chief Justice John Roberts, she will be the ninth and last justice to have her say on how the cases heard should be decided. And she will confront the reality that today’s court is dominated by a 6-3 conservative-liberal majority, and she is one of the three.
In the public arguments leading up to that private session, Jackson expressed her core principles and theories as she signaled her bottom-line votes.
She countered, for example, arguments by an Alabama state lawyer on Tuesday who pressed a “race neutral” approach to redistricting that would gut a remaining part of the landmark 1965 Voting Rights Act.
“We’re talking about a situation in which race has already infused the voting system,” Jackson, the court’s first Black woman justice, said.
Jackson’s intensity in the first four arguments of the session recalled some junior members of the past, such as the late Justices Ruth Bader Ginsburg and Antonin Scalia, who declined to hold back among their more seasoned colleagues.
Jackson has joined what was already regarded as a “hot bench,” but when Scalia came on in 1986, his vigor so rattled his colleagues that Justice Lewis Powell remarked, “Do you think he knows the rest of us are here?”
Adam Feldman, who compiles argument data for his Empirical SCOTUS blog, documented Jackson’s active role. In a Twitter post after the Tuesday voting-rights case, he observed that Jackson spoke more than anyone else, noting of her total 2,269 words, “very seldom do we see a justice eclipse 2,000 words.”
Feldman added, “Is this meaningful? Likely will not affect outcomes as she will probably be in dissent in most close cases.”
Yet with today’s reconstituted court, Jackson’s approach at arguments could offset the natural disadvantage of her position on the diminished liberal wing and at the end of the line in an institution that runs on seniority.
When the closed-door conference begins on Friday, the other justices will surely know where she stands on the disputes.
Other justices often use oral arguments to make their own cases, bolstering their positions, undermining the opposition, and laying groundwork for the private “conference,” as it is called.
The justices typically avoid discussing cases with each other before hearings and the conference. So the public sessions offer the first opportunity for justices to persuade colleagues, even if they have to use the lawyer at the lectern as a foil.
The conference, as consequential as it is, can be stilted. The justices proceed in rigid order of seniority, and no justice is allowed to speak twice until each justice – in order of rank – has offered his or her view.
The dynamic on the bench this week suggested some justices feel a sense of urgency regarding the court’s direction, whether in favor of the rightward trend or against it. The new jockeying adds a dimension to a reconstituted court, reconvening after the most tumultuous term in decades that included the reversal of a half-century of abortion rights.
This week’s sessions were fast paced, with palpable tension, some of which may have flowed from the public attendance for the first time since March 2020 and the Covid-19 outbreak. (The justices had taken the bench for the previous, 2021-22 session, but allowed only a few lawyers, journalists, and other selected spectators into the room.)
Breyer discusses the division on the Supreme Court
Jackson sits to Chief Justice Roberts’ far left. Her addition has made that left side of the bench more voluble and more pointed. Immediately next to Roberts on the left is Alito, then Elena Kagan, Brett Kavanaugh, and Jackson. (The justices take their tall black leather chairs in alternating order of seniority, with the chief justice at the center of the bench.)
Alito, a 2006 appointee of Republican President George W. Bush, and Kagan, a 2010 appointee of Democratic President Barack Obama, often enter through the crimson velvet drapes ready to make their (inevitably dueling) positions clear. Kagan, especially, seems to have a plan in mind to try to pick up any possible votes in the conference.
During arguments over the 1965 Voting Rights Act, Alito was most emphatic in response to Jackson, Kagan, and third liberal Sonia Sotomayor.
Sotomayor sits with the four justices to Roberts’ right, between the more senior Thomas, who only intermittently asked questions this week, and Neil Gorsuch, who posed none during the Alabama case. Amy Coney Barrett, at the far end of the bench, engaged in all the give-and-take.
The Alabama controversy revolved around standards for vote-dilution claims to state redistricting plans under a section of the law that forbids any practice that denies a citizen the right to vote on account of race.
Alabama officials have refused to create more than one Black-majority district among the state’s seven congressional districts, even though about 27% of Alabama’s population is Black.
Seeking to disregard such demographics, the state contends the Constitution and the Voting Rights Act require a “race neutral” approach.
Jackson countered that argument and the broader conservative view of a “colorblind” Constitution.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” she said, “because I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about.”
Summing up her point, likely not only for the case at hand, but for other racially charged cases on the horizon, she said, “When I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious way.”