New justice to find court in turmoil
Jackson returns to institution where she once clerked
Less than two hours after the Supreme Court ended a wrenching term last month, it welcomed a new member. Justice Ketanji Brown Jackson, who had been waiting in the wings since she was confirmed by the Senate in April, took two oaths of office — and joined a court in turmoil.
“She’s entering the court at a time of just crazy polarization after a very momentous term and after this huge leak from the spring,” said David Lat, a legal commentator, referring to the disclosure in May of a draft opinion overturning Roe v. Wade, which closely resembled the decision last month that did away with the constitutional right to abortion.
“I’m sure her colleagues will be very welcoming to her, but there may just be a lot more circumspection around the building,” said Lat, author of Original Jurisdiction, a newsletter about the law and legal profession. “It could be a little weird.”
In joining the court, Jackson returned to a familiar setting. She had served as a law clerk to Justice Stephen Breyer, whom she replaced, in the term that ended in 2000.
But that was a very different time — and the differences illuminate both the extraordinary transformation of the institution and the challenges its newest member will face.
In an end-of-term overview that July, The New York Times’ Supreme Court reporter, Linda Greenhouse, asked John Roberts, then a prominent lawyer, for his assessment of the court’s major decisions.
“Which cases were most visible to the public this year?” asked Roberts, who would become chief justice five years later. “Probably school prayer, abortion and Miranda, and the conservatives lost all three.”
The term that ended last month also featured cases on school prayer, abortion and Miranda. This time around, though, the conservatives won all three.
The court in 2000 was about halfway through an 11-year stretch without any changes in personnel, the second-longest such period in its history.
It was by most accounts a happy place. That, too, has changed.
“This is not the court of that era,” Justice Clarence Thomas said at a conference in Dallas two weeks after the leak, adding: “We actually trusted each other. We may have been a dysfunctional family, but we were a family.”
Since Roberts’ arrival in 2005, there have been seven new justices. The only current member of the court who was serving in 2000, when Jackson was a law clerk, is Thomas.
After she was sworn in last month, Jackson alluded to the fact that her appointment as the first Black woman to serve on the court was a milestone.
“I am truly grateful,” she said in a statement, “to be part of the promise of our great nation.”
Breyer, in his own statement, said his successor would fit in well at the court.
“I am glad for my fellow justices,” he said. “They gain a colleague who is empathetic, thoughtful and collegial.”
Jackson’s experience as a law clerk may speed her acclimation. Six of the 10 justices who were once Supreme Court clerks sit on the current court: Roberts, Jackson, Elena Kagan, Neil Gorsuch, Brett Kavanaugh
and Amy Coney Barrett.
Still, the court Jackson knew in 2000 was a different place, even though then as now, it was dominated by Republican appointees. Indeed, it was in that sense even more lopsided, with seven justices named by Republican presidents rather than the current six.
But the justices’ partisan affiliations in those days did not reliably predict their votes.
Two of the members of the court appointed by Republicans — Justices John Paul Stevens and
David Souter — were liberals. Another two — Justices Sandra Day O’Connor and Anthony Kennedy — were moderates who leaned right. Only the remaining three — Chief Justice William Rehnquist, Thomas and Antonin Scalia — were committed conservatives.
That meant the court’s two Democratic appointees — Breyer and Justice Ruth Bader Ginsburg — were very much in the mix on a court that could be unpredictable. Jackson, although she will be part of a three-member liberal wing, will have less
room to maneuver.
These days, partisan affiliations are closely aligned with voting patterns in major cases. In decisions issued last month on abortion, guns, religion and climate change, all of the six Republican appointees voted with the majority and all of the three Democratic ones were in dissent.
Consider the contrasts between the decisions Roberts noted in 2000 and their 2022 counterparts.
In 2000, the court applied principles announced in Roe v. Wade to strike down a Nebraska law that banned a late-term procedure that opponents call partial-birth abortion. Breyer wrote the majority opinion in the 5-4 decision.
Just seven years later, after Justice Samuel Alito replaced O’Connor, the court reversed course in another 5-4 decision, now sustaining the federal Partial-Birth Abortion Ban Act. After further changes in the court’s personnel, including the addition of three justices appointed by President Donald Trump, the court last month overruled Roe entirely.
In 2000, the court was wary of prayer in public schools, ruling that organized prayers led by students at high school football games violated the First Amendment’s prohibition of government establishment of religion.
“The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship,” Stevens wrote for the majority in a 6-3 decision. Four Republican appointees voted with the majority.
In June, in a 6-3 decision divided along partisan lines, the court ruled that a football coach at a public high school had a constitutional right to pray at the 50-yard line, discounting the possibility of coercion.
Jackson may have hoped that she would have the summer to settle in and prepare for the major cases next term, which starts in October. But there will be activity on what critics call the court’s shadow docket before then.
The court is considering an emergency application from the Biden administration to undo a trial judge’s ruling blocking the administration’s approach to immigration enforcement. She will probably cast her first vote in that case.