Less than two hours after the Supreme Court ended a drawn-out term last month, it welcomed a new member. Judge 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 run and after this massive spring leak,” said David Lat, a legal commentator, referring to the May unveiling of a draft advisory that included Roe v. Wade. was destroyed. , which was very similar to last month’s decision abolishing the constitutional right to abortion.
“I’m sure her colleagues will make her very welcome, but there may be a lot more caution around the building,” said Mr. Lat, the author of Original jurisdiction, a newsletter about law and the legal profession. “It can be a little weird.”
When he got to the court, Justice Jackson returned to a familiar environment. She had served as Registrar of Justice Stephen G. Breyer, whom she replaced, in the term ending in 2000. But that was a very different time — and the differences illuminate both the institution’s extraordinary transformation and the challenges of its newest member. will be confronted.
In a July year-end review, Linda Greenhouse, New York Times Supreme Court reporter, asked John G. Roberts Jr., then a prominent attorney, for his review of the court’s key decisions.
“Which cases were most visible to the public this year?” asked Mr. 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 included cases about school prayer, abortion and Miranda. This time, however, the Conservatives won all three.
In 2000, the court was about halfway through an 11-year period with no staff changes, the second longest in its history.
It was a happy place by most accounts. That too has changed.
“This is not the court of the time,” Judge 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 the arrival of Chief Justice Roberts in 2005, there have been seven new judges. The only current member of the court to serve in 2000, when Justice Jackson was a clerk, is Justice Thomas.
After being sworn in last month, Justice Jackson hinted that her nomination 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.”
Justice Breyer said in his own statement that his successor would be a good fit for the court. “I’m happy for my fellow judges,” he said. “They get a colleague who is empathetic, thoughtful and collegial.”
Those qualities, coupled with her familiarity with the inner workings of the court, could serve Justice Jackson well. But the court’s six-member Conservative majority seems poised to assertively push the law to the right, and the youngest member will have little ability to slow down, much less thwart his ambitions.
Major Supreme Court decisions this term
A memorable term. The U.S. Supreme Court has made several important decisions during its last term, including rulings on abortion, guns and religion. Here’s a look at some of the key cases:
School prayer. In Kennedy v. Bremerton School District, the court ruled that a Washington public high school football coach had a constitutional right to pray on the 50-yard line after his team’s games.
Separation of church and state. In Carson v. Makin, the court ruled that a Maine program that excludes religious schools from a state education program violates the free exercise of religion.
In any case, it may take some time for Justice Jackson, who has spent most of her judicial career as a judge in court, to feel comfortable with the court’s work.
Judge Thomas, who joined the court in 1991, said he had asked his new colleagues how long it would take for him to feel comfortable. “To one person they said that under normal circumstances it took three to five years to adjust to the court,” Judge Thomas said. said in 1996.
That’s the usual estimate. “Such an extraordinary intellect as Brandeis said it took him four or five years to feel that he understood the court’s jurisprudential problems,” Judge Felix Frankfurter wrote of Judge Louis D. Brandeis, who served on the court from 1916 to 1939. was sitting.
But Justice Jackson’s experience as a clerk may accelerate her acclimation. Six of the ten justices who were once Supreme Court Clerks sit on the current court: Chief Justice Roberts and Justices Jackson, Elena Kagan, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
Still, the court knew that in 2000 Justice Jackson knew it was a different place, even though it was then and now dominated by Republican appointees. In that sense, it was even more lopsided, with seven judges named by Republican presidents instead of the current six.
But the partisan preferences of the judges at the time did not reliably predict their votes.
Two of the Republican-appointed members of the court — Judges John Paul Stevens and David H. Souter — were Liberals. Two others—Judges Sandra Day O’Connor and Anthony M. Kennedy—were moderates leaning to the right. Only the other three — Chief Justice William H. Rehnquist and Justices Thomas and Antonin Scalia — were staunch conservatives.
That meant the court’s two Democratic appointees—Judges Breyer and Ruth Bader Ginsburg—were very confused on a court that could be unpredictable. Justice Jackson, while she will be part of a three-man Liberal wing, will have less room for maneuver.
Today, partisan preferences are in large cases closely aligned with the voting pattern. In decisions issued last month on abortion, guns, religion and climate change, all six Republican appointees voted with the majority and all three Democrats disagreed.
Consider the contradictions between the decisions noted by Mr. Roberts in 2000 and their counterparts in 2022.
In 2000, the court applied the principles announced in Roe v. Wade to repeal a Nebraska law banning late-term proceedings that opponents call partial birth abortion. Justice Breyer wrote in the majority opinion the 5-on-4 decision.
Just seven years later, after Judge Samuel A. Alito Jr. replaced Judge O’Connor, the court reversed course another 5-on-4 decision, which now supports the federal law banning partial birth abortion. After further changes to the court’s staff, including the addition of three judges appointed by President Donald J. Trump, the court dismissed Roe entirely last month.
In 2000, the court was wary of prayer in public schools and ruled that organized prayers led by students at high school football games violated the First Amendment’s ban on the government’s establishment of religion.
“Saying a pregame prayer has the inappropriate effect of forcing attendees to participate in an act of religious worship,” Judge Stevens wrote for the majority in a statement. a 6-on-3 decision. Four Republican appointees voted with the majority.
In June, in a 6-to-3 decision split along partisan lines, the court ruled that a public high school football coach had a constitutional right to pray on the 50-yard line, excluding the possibility of coercion. was considered.
Perhaps the most surprising decision of the 2000 term was the 7-to-2 ruling that reaffirmed Miranda v. Arizona, the 1966 decree that required police officers to give the well-known warning before interrogations. The decision was widely criticized and Congress sought to undo it.
But Chief Justice Rehnquist, himself a longtime critic of Miranda, wrote for the majority that the warnings had “become entrenched in routine police practice.” Since the Miranda decision had “announced a constitutional rule,” he wrote, a statute it sought to override was itself unconstitutional.
In June, in a 6-to-3 decision split along familiar lines, the court ruled that police officers cannot be prosecuted under a federal civil rights law for failing to comply with the warnings. “A violation of Miranda does not necessarily mean a violation of the Constitution,” Judge Alito wrote before the majority.
Justice Jackson may have hoped she’d have the summer to settle in and get ready for the big business next term, which starts in October. But before then, there will be activity on what critics call the court’s shadow bench.
Indeed, the court considers an emergency application of the Biden administration to reverse a first-instance judge’s ruling blocking the government’s approach to enforcing immigration. She will then probably cast her first vote.
Important cases await Justice Jackson in the next term. Only in Octoberthe court will hear arguments about the role race can play in redistricting under the Voting Rights Act, op the scope of the authority of the Environmental Protection Agency to enforce the Clean Water Act and whether Andy Warhol has infringed copyright by relying on a photographer’s image of the musician Prince.
The court will also challenge race-conscious admissions programs at Harvard and the University of North Carolina. Justice Jackson, who was a member of one of Harvard’s governing bodies, has said she will withdraw from the Harvard case. The two cases have been merged, but the court will likely separate them so Justice Jackson can hear the case against UNC
Justice Jackson’s court file gives few hints as to how she will rule in any of the upcoming cases, although it will be a surprise if she strays far from the approach of Justice Breyer, her mentor, or the two liberal members of the current court, Justices. . Sotomayor and Kagan.
Her arrival may nevertheless be a welcome reset. As Judge Byron R. White liked to say, every time there’s a new judge, “it’s a different court.”