Four ways Jackson could change the bench

The confirmation of Supreme Court Justice Ketanji Brown Jackson is cause for celebration. Not only has the nation gained a jurist on the highest court with stellar academic credentials and legal experience, but the Supreme Court will have its first Black woman justice. Jackson’s confirmation corrects a past during which the capabilities and talents of Black women were overlooked.

But how might Jackson change the Supreme Court and its decisions? Probably not by much in the short term. The Supreme Court has taken a sharp turn to the right because of deaths and retirements of several sitting justices and their more conservative replacements.

Her appointment, from an ideological perspective, is not likely to have an immediate or significant change in the Supreme Court’s decisions.

However, there are four areas to watch.

First, during her Senate testimony, Jackson testified that she did not believe that there is a living Constitution that evolves over time. Instead, she seemed to side with the originalists on the Supreme Court as she “characterized her judicial philosophy as deeply rooted in the meaning of legal texts as originally written.” It will be interesting to see how she engages with the conservative originalists and whether she sometimes votes with them as her Supreme Court jurisprudence develops over time.

Second, given that she served on the Harvard University Board of Overseers for six years, Jackson agreed to recuse herself from the upcoming affirmative action case challenging Harvard’s use of race as a factor in admissions due to her perceived conflict of interest. In 2016, in Fisher v. University of Texas, by the narrowest margin of 4-3, the Supreme Court approved UT’s affirmative action policy. Only seven justices participated in that ruling. Justice Elena Kagan recused herself given her prior work as solicitor general and Justice Antonin Scalia had recently passed away. Since then, that four-vote coalition has shrunk given Ginsburg’s death and the retirement of Kennedy. Jackson’s recusal reduces the odds of the continuing constitutionality of race-based admissions because that coalition will have even one less vote. Three justices — Samuel Alito, Clarence Thomas and John Roberts — have traditionally opposed race-based admissions practices. At this point, we can presume two votes for race-based admissions practices — Sonia Sotomayor, who voted to support those practices in Fisher, and Kagan, who defended those programs as solicitor general. It is hard to discern the positions of the most recently appointed Supreme Court justices — Barrett, Brett Kavanaugh and Neil Gorsuch.

Third, having four women on the Supreme Court — even though they may be of different ideological perspectives — is likely to make a difference in cases involving women. For example, the 2009 Supreme Court case of Safford Unified School District v. Redding, involved the strip search of a 13year-old girl at an Arizona school. At that time, Ginsburg was the only woman member of the Supreme Court, and it was clear from the oral arguments that her male colleagues did not initially understand the impact of the search on a 13-year-old girl. For example, Breyer said during oral arguments: “I’m trying to work out why is this a major thing to, say, strip down to your underclothes, which children do when they change for gym,” Breyer said. “How bad is this?”

It seems clear that Ginsburg had an impact on her male colleagues in closed-door discussions given that the Supreme Court ultimately found by 8-1 that Arizona had violated the young girl’s constitutional rights. With Brown’s confirmation and women constituting four out of nine members of the Supreme Court, I imagine that they will impact their male colleagues when all four women explain how a particular governmental practice harms women in a way that the male justices may not initially see.

Lastly, for the first time there will also be three justices from underrepresented backgrounds on the Supreme Court, two of whom are African American. For 30 years, Thomas has served as the sole African American voice on the Supreme Court. Many commentators see Thomas as a leading conservative voice on the Supreme Court, but other commentators note that he “opposes most policies that seek to combat discrimination or help minorities.” Jackson’s confirmation will provide and showcase important ideological diversity among the Black judges. And who knows? Having another Black voice on the court might even influence Thomas’s more conservative voice.