An Early Look at US Supreme Court Justice Ketanji Brown Jackson

We are just six months into the inaugural and historic U.S. Supreme Court term of Justice Ketanji Brown Jackson, but it’s not too early to take a first look at her work. In February, she authored her debut merits opinion for the court, and she has written four opinions related to orders the court issued. All are revealing.

Before turning to them, a few observations. As of the end of March, the court had issued just eight merits opinions, including the one Jackson authored. She joined the majority in all eight— the only justice to have done so—and had not authored any concurring opinions. The justice she has been most aligned with so far is Justice Sonia Sotomayor, having taken the same position as her in seven of the eight merits decisions, having joined her one concurrence, and having had Sotomayor join three of her four order-related opinions (the only justice to have joined any of them). Next are Chief Justice John Roberts and Justices Elena Kagan and Brett Kavanaugh, with whom Jackson aligned in seven of the eight merits opinions. At the other end of the (albeit narrow) spectrum, she has taken the same position as Justices Samuel Alito and Clarence Thomas in five of eight merits opinions and as Justices Amy Coney Barrett and Neil Gorsuch in six of eight.

It’s of course too early to draw conclusions about alignments in the current court, but these initial numbers are no surprise. More telling are Jackson’s initial opinions. Though her inaugural merits opinion addressed a technical, commercial dispute, it hints at a turbulent political divide.

And all four of her order-related opinions dealt with important civil rights issues.

Escheatment Intrigue

Justice Jackson’s first merits opinion dealt with escheatment, which is the power of a state to take custody of abandoned property. The dispute in Delaware v. Pennsylvania, No. 145 arose out of various states laying claim to uncashed money orders (I’m simplifying), with the legal issue being whether escheatment of this property was governed by a federal statute or by common law. By tradition, this is the type of case that has been the subject of a new justice’s first opinion: a relatively technical and simple one about which there is unanimity. And in a decision issued on Feb. 28, Jackson found for a unanimous court that the federal statute governed.

Dry as it is, the decision nonetheless delivers civil rights intrigue. Though no justice wrote separately, the first line of the decision announcing the “the opinion of the court” has an asterisk note that reads, “*Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Barrett join all but Part IV-B of this opinion.” In Part IV-B Jackson, in trying to interpret an ambiguous statutory phrase, delved into legislative history, discussing a letter from a Treasury Department official proposing insertion of a nearly identical phrase into the draft bill and a Senate report describing the change to the original bill as a “technical” alteration.

The four conservative justices offer no explanation for their asterisk note marring Jackson’s otherwise unanimous debut, but it undoubtedly reflects the ongoing debate about the role of legislative history in statutory and constitutional interpretation. While that debate has many legitimate dimensions, conservative Supreme Court justices have warped history into a tool for achieving desired outcomes, and they presumably saw something in Jackson’s discussion that was not to their liking. The escheatment dispute that garnered Jackson’s first opinion will disappear into history, but its asterisk note may loom large.

Executions, Pleas and Erasures

Turning to the four opinions Jackson has authored in conjunction with orders from the court, two concerned the death penalty, one concerned the right of criminal defendants to effective assistance of counsel, and one concerned the vacating of a lower court’s abortion decision. All four point to her being a strong voice for civil rights.

In her first opinion of any kind, Jackson dissented last November from a denial of certiorari in a capital case, with Sotomayor joining her. The case—Chinn v. Shoop, No. 22-5058—arose out of an undisputed failure to disclose exculpatory evidence to the defense—a violation of Brady v. Maryland—with the legal dispute being about the proper standard for determining whether the evidence was sufficiently material to warrant a new trial. In measured language, she explained why she thought the Sixth Circuit had contravened Supreme Court precedent and should be summarily reversed:

I write to emphasize the relatively low burden that is “materiality” for purposes of Brady and Strickland v. Washington. To prove prejudice under both Brady and Strickland, a defendant must show “a reasonable probability” of a different outcome. We have repeatedly said that the “reasonable probability” standard is not the same as the “more likely than not” or “preponderance of the evidence” standard; it is a qualitatively lesser standard. In fact, it is “contrary to” our precedent to equate the “‘reasonable probability’” materiality standard with the more-likely-than-not standard.

The Sixth Circuit did not appropriately apply the materiality standard. Although the Sixth Circuit purported to recognize that the two standards were different, it simultaneously claimed that “‘reasonable probability’ for Brady’s purposes is effectively the same as a more-probable-than-not standard.”

Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

Later in November Jackson dissented from the denial of a capital defendant’s application for an emergency stay of execution. In Johnson v. Missouri, No. 22A463, the defendant argued his due process rights were violated when the Missouri courts rejected a prosecutor’s motion to vacate his conviction without holding an evidentiary hearing a Missouri statute required to assess the evidence supporting the motion. Joined by Sotomayor, Jackson acknowledged that it was only a rare case when a state’s failure to comply with its own law could constitute a federal due process violation but contended this was such a case. And perhaps signaling her close attention to racial discrimination in the criminal-justice system, she noted that the evidentiary hearing denied the defendant—who was executed in the one day between the court’s order and Jackson’s opinion—would have addressed his claim of racial bias:

It appears that much of the evidence that could have been presented at the nonexistent hearing was new evidence relating to the trial prosecutor’s racially biased practices and racially insensitive remarks. And now that evidence will not be considered on the merits by any court, much less the one that was supposed to base its conclusions about the validity of Johnson’s conviction on all such evidence, per the statutory mandate.

Jackson’s third order-related opinion, issued on Feb. 21 and joined by Sotomayor, also deals with the criminal-justice system and came in the form of a dissent from the court’s denial of certiorari in Davis v. United States, No. 22-5364. In that case a criminal defendant argued his Sixth Amendment right to effective assistance of counsel was violated when his counsel failed to seek a plea deal and instead took the case to trial, resulting in a guilty conviction and a sentence of approximately 160 years. Opening with language from a 2012 Supreme Court decision observing that our modern criminal justice system is “for the most part a system of pleas, not a system of trials,” Jackson argued the court needed to address the proper standard for assessing plea-based ineffective-assistance claims where the prosecution had not offered a plea. In her view, that fact should not bar an ineffective-assistance claim, with it being sufficient for the defendant to show a plea might have been offered by the prosecution had defense counsel sought one. And in support of her concern this was such a case, she noted that all of the defendant’s co-defendants had received plea deals and far shorter sentences.

Finally, there is Jackson’s dissent from a March 20 order in an abortion case, Chapman v. Doe, No. 22-312. After the Supreme Court’s new conservative majority abolished the federal constitutional right to an abortion last year, the winning plaintiff—a minor unlawfully denied access to a judicial bypass—and the losing state official jointly asked the Supreme Court to vacate the court of appeals ruling and dismiss the case as moot, which it did. In her solo dissent, Jackson took issue with the vacating of the lower court’s decision on mootness grounds, which government agencies increasingly have sought so as to erase rulings favoring civil rights plaintiffs. Jackson explained how recent expansion of mootness vacatur—narrowly permitted under United States v. Munsingwear, 340 U.S. 36 (1950)—undermines development of the law and invites gamesmanship:

Our common-law system assumes that judicial decisions are valuable and should not be cast aside lightly, especially because judicial precedents are not merely the property of private litigants, but also belong to the public and legal community as a whole. Injudicious awards of Munsingwear vacatur can also incentivize gamesmanship, as it, for example, enables parties to disclaim potential mootness before the lower court, and, if unsuccessful on the merits at that stage, argue mootness on appeal to eliminate the adverse decision through vacatur.

Looking Forward

Jackson’s early opinions confirm that she likely will be a thoughtful advocate for social justice. The bigger question concerns how effective she can be influencing the conservative members of the court in an era when civil rights win are not possible without them. And as the 2024 election creeps closer, Jackson may need to consider having difficult conversations with the court’s most liberal member—Sotomayor—about whether her age and health warrant possible retirement to assure the court does not become even further unbalanced politically, as happened with the untimely death of Justice Ruth Bader Ginsberg.

This piece was originally published in the New York Law Journal