By John G. Malcolm
On March 21, Judge Ketanji Brown Jackson’s Supreme Court confirmation hearing will begin. Senators will be scrutinizing her past judicial opinions on critical issues from labor law to illegal immigration to presidential claims of executive privilege. This brief overview of several of those key opinions provides some insight into her general approach to resolving legal issues.
Jackson has been through this confirmation process three times before—when she was nominated to the U.S. Sentencing Commission, to the district court, and to the D.C. Circuit—but it is safe to say that a lot more people are going to be paying attention this time.
The first day will be taken up with speeches by all the senators of the Senate Judiciary Committee and will conclude with an opening statement by the nominee herself.
The real fireworks, though, will take place over the next two days when senators ask a battery of questions of the nominee herself, many of which she will avoid answering, citing the longstanding rule that a nominee should not answer questions about legal issues that might come before the Supreme Court if she is confirmed.
In fairness, this tactic, which has come to be known as the “Ginsburg rule,” has been used by Supreme Court nominees under both Democratic and Republican presidents and by nominees that long predated the nomination of Justice Ruth Bader Ginsburg.
During her confirmation hearing, for example, Justice Amy Coney Barrett invoked the woman she replaced when she said, “Justice Ginsburg with her characteristic pithiness used to describe how a nominee should comport herself at a hearing. No hints, no previews, no forecasts. That had been the practice of nominees before her. But everybody calls it the Ginsburg rule because she stated it so concisely.”
Jackson’s Judicial Philosophy
One area that she will be asked to address is her judicial philosophy. During her confirmation hearing to the D.C. Circuit last year, Jackson indicated that she does not have a “judicial philosophy per se,” a surprising answer for someone who clerked for three judges, including a Supreme Court justice and who had been a federal judge for eight years.
In response to written questions from Sen. Charles Grassley, R-Iowa, who pressed her on the issue, Jackson wrote that as a lower court judge, she was not at liberty “to interpret the text of the Constitution in any manner other than as the Supreme Court has directed.”
She added that, as a sitting judge, she has an ethical obligation “to avoid commenting on, or providing personal views of, disputed legal matters such as the most appropriate method of interpreting the Constitution.”
This bob-and-weave answer should not cut it. As I have written elsewhere:
It is individual justices, not the high court as a whole, who adopt the ‘methodology’ that they think is most appropriate when it comes to interpreting the Constitution. Moreover, she will be free from any constraints she might otherwise have felt as a lower court judge if she is elevated to the Supreme Court.
Furthermore, it is one thing not to comment on a legal issue that may come before the court for resolution in the future, but the “most appropriate method of interpreting the Constitution” is not one of them.
Judges and justices have written books and given speeches providing their views on that very subject many, many times, and Jackson should provide a direct and nonevasive answer to that question. We’ll see whether she sticks with her previous answer and how it will fly if she does.
Jackson’s Past Cases
Another area that will clearly not be off limits, though, and where it will be harder for Jackson to duck and weave, is answering questions about past opinions that she has written as a judge. And since she has written close to 600 of them over the course of her eight years as a district court judge and roughly six months as an appellate judge, there will be much to talk about.
Trump Cases
Jackson was involved in two cases that impacted former President Donald Trump directly, and which buoyed her supporters.
In Committee on the Judiciary v. McGahn, the House Judiciary Committee filed a lawsuit seeking to compel testimony by former White House counsel Don McGahn in connection with the committee’s investigation into potential foreign interference during the 2016 election.
In granting the committee’s motion for summary judgment, Jackson held that the committee had standing to file the suit and that the case was justiciable, or appropriate for a court to decide, even though it involved a dispute between two branches of government.
In so holding, she wrote: “Simply put, the primary takeaway from 250 years of recorded American history is that Presidents are not kings. … This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
She added:
Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires.
The Department of Justice had not argued that Trump was a king or above the law. These phrases, though, were frequently invoked by liberal politicians and pundits at the time to caricature the president (see here, here, here, here, here, here, here, and here), and it is troubling that Jackson chose to parrot this unnecessarily inflammatory rhetoric.
A three-judge D.C. Circuit panel reversed Jackson on the issues of standing and justiciability, but the D.C. Circuit sitting en banc (all active judges of the circuit, not just the panel, presided) reversed the original panel on the first issue, and the case settled before the en banc court resolved the second issue.
As an appellate judge, Jackson recently joined an opinion written by Judge Patricia Millett in Trump v. Thompson upholding a lower court decision rejecting Trump’s effort to block the release of documents being held by the National Archives to the Jan. 6 committee after the Biden administration declined to assert executive privilege to block their release. The Supreme Court refused to intervene, with only Justice Clarence Thomas dissenting.
Labor Law Cases
Jackson has issued several significant opinions in labor law cases that likely go a long way in explaining why liberal groups like Demand Justice designated her as their preferred nominee. She is clearly partial to labor unions and is highly skeptical, if not downright hostile, to any attempt to limit their ability to unionize or engage in collective bargaining.
In Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, Jackson ruled in favor of federal labor unions challenging three of Trump’s executive orders related to collective bargaining rights. The executive orders limited the issues unions could bargain over, the amount of time labor union officials could spend with union members, and the rights of members to appeal disciplinary actions.
Jackson concluded that those orders conflicted with the Federal Service Labor-Management Relations Statute. A unanimous D.C. Circuit panel reversed her decision, holding that Jackson did not have subject-matter jurisdiction and that such claims had to be pursued through the administrative process established under the Federal Labor Relations Act.
In a pair of written opinions in AFL-CIO v. NLRB, Jackson vacated (invalidated) a National Labor Relations Board rule that amended union election procedures to slow down the union election process. She concluded that the rule contained more than procedural rule changes and should have been subject to notice-and-comments rulemaking requirements in the Administrative Procedure Act.
In AFL-CIO v. Federal Labor Relations Authority, a group of public sector unions challenged a 2020 rule by the Federal Labor Relations Authority that raised the threshold for management-initiated changes to employment conditions that would trigger collective bargaining rights.
In her first written majority opinion as a judge on the D.C. Circuit, Jackson invalidated the rule, which raised the threshold from changes that had de minimis effect on a condition of employment to changes that had a substantial impact on a condition of employment, concluding the authority’s decision was insufficiently reasoned and, therefore, arbitrary and capricious in violation of the Administrative Procedure Act.
Professor Jonathan Adler of the Case Western Reserve University School of Law described this opinion as “an erroneous and unduly strict application” of applicable Supreme Court precedent.
Immigration Cases
There is at least one high-profile case in which Jackson appeared to stretch the law—and was overturned—to frustrate the Trump administration’s efforts to rigorously enforce our nation’s immigration laws.
In Make the Road N.Y. v. McAleenan, immigration advocacy groups brought a pre-enforcement challenge to the Department of Homeland Security secretary’s decision to expand the categories of noncitizens that would be subject to expedited removal from the United States.
Jackson entered a nationwide preliminary injunction to prevent the revised rule from taking effect, concluding that she had jurisdiction to consider the case and that the plaintiffs were likely to succeed on their claim that the agency’s action was arbitrary and capricious and therefore violated the Administrative Procedure Act.
In doing so, she wrote that the government’s argument was “peculiar” and “reeks of bad faith, demonstrates contempt for the authority that the Constitution’s Framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled.”
The D.C. Circuit reversed her injunction. The majority opinion, written by fellow Obama appointee Millett, held that while the district court had jurisdiction to consider the matter, Congress had granted the secretary “sole and unreviewable discretion” on expedited removal determinations.
Judge Neomi Rao dissented, arguing that the district court lacked jurisdiction because the Immigration and Nationality Act bars judicial review of the secretary’s discretionary decisions about expedited removal.
In Kiakombua v. Wolf, Jackson ruled in favor of five noncitizens who were subject to expedited removal and against the Trump administration and held that changes made by U.S. Citizenship and Immigration Services, a subagency of the Department of Homeland Security, to its Credible Fear Lesson Plan utilized criteria that had not been prescribed by Congress in the Immigration and Nationality Act. Jackson vacated the revised rule and ordered that the plaintiffs be provided with a new asylum hearing using lawful standards.
In Center for Biological Diversity v. McAleenan, environmental groups challenged the homeland security secretary’s invocation of the Illegal Immigration Reform and Immigrant Responsibility Act to waive certain environmental laws in order to expedite construction of a border wall in New Mexico.
In contrast to her decision in Make the Road, Jackson granted the government’s motion to dismiss the case, concluding that the court lacked jurisdiction under the relevant statute to consider nonconstitutional challenges to such a decision. The Supreme Court declined to hear the case.
Las Americas Immigrant Advocacy Center v. Wolf was another case in which Jackson sided with the government. In that case, several advocacy groups challenged the government’s policy of holding noncitizens in Customs and Border Protection facilities, which they claimed were inhumane, while awaiting asylum interviews.
Jackson held that while the plaintiffs had standing to bring the case, the detention policy was a reasonable interpretation of the Immigration and Nationality Act and its implementing regulations.
Other Important Administrative Cases
In Policy and Research v. HHS and a companion case, Jackson ruled that Department of Health and Human Services’ announcement that it was going to shorten the time period for grants for teen pregnancy prevention programs from five years to three years was arbitrary and capricious in violation of the Administrative Procedure Act because it was issued without notice or an adequate explanation.
But some of Jackson’s decisions—even those ruling against an agency—cannot be characterized as reflexively liberal.
For example, in Otay Mesa Property, L.P. v. Dep’t of Interior, while agreeing that the Endangered Species Act would allow the Interior Department to protect fairy shrimp in vernal pools that were “occupied” by them, Jackson agreed with the plaintiff that the agency’s designation of the land and water between the pools—a total of 56 acres—as critical habitat for the species was “manifestly unreasonable.”
Racial Preferences
In Rothe Dev., Inc. v. Dep’t of Def., Jackson rejected the plaintiff’s constitutional challenge to Section 8(a) of the Small Business Administration Act, which establishes a program of preferential treatment in government contracting for businesses owned by “socially disadvantaged individuals,” concluding that the program satisfied strict scrutiny.
The D.C. Circuit (over a partial dissent) affirmed her judgment, albeit on different grounds, and the Supreme Court declined to consider the case.
Another important line of questions in this area will not involve a case in which she issued an opinion, but two important consolidated cases that the Supreme Court will hear next term.
In Students for Fair Admission v. President & Fellows of Harvard College and Students for Fair Admission v. University of North Carolina, the justices will reconsider whether racial preferences in college admissions are constitutional.
In both cases, the admissions policies make it significantly more likely that black applicants will be admitted—and significantly less likely that Asian American applicants will be admitted—than other similarly qualified applicants.
Jackson will be asked whether she will commit to recuse herself from taking part in the consideration of those cases. This is a legitimate question. While Jackson was not involved in the disposition of either of these cases as they wended their way through the lower courts, she has been a member of the Harvard Board of Overseers since 2016.
As Ed Whelan, a senior fellow and former president of the Ethics and Public Policy Center, has noted, this is not a ministerial position. The board, which meets multiple times a year, “provides counsel to the University’s leadership on priorities, plans, and strategic initiatives.”
It is hard to imagine that the ongoing lawsuit challenging Harvard’s admission’s policy was not the subject of intense discussion among the board and the university’s leadership.
And interestingly, in her submitted questionnaire on pages 121 and 122, Jackson states that she recused herself in a couple of cases that bear a striking resemblance to this situation.
She recused herself in Doe v. Lhamon “because the complaint challenged the Department of Education’s sexual assault guidelines for colleges and universities, and at the time that the matter was assigned to me, I was serving on the board of a university that was evaluating its own potential response to those guidelines.”
Is there any doubt that she was referring to Harvard?
And she recused herself in Chenari v. George Washington University “because the plaintiff alleged that George Washington University improperly terminated his enrollment at the school for honor code violations, and at the time this matter came before me, I was affiliated with George Washington University Law School as an adjunct professor.”
Suffice it to say that being on the board of overseers of a university is a much more serious “affiliation” than being an adjunct professor.
Conclusion
These are just a few of the opinions that are likely to be scrutinized by senators during the upcoming hearing that should yield insights as to how Jackson decides cases and whether she does so in an impartial manner, focusing exclusively on the law and not her personal or political predilections.
Senators should ask tough and probing questions of Jackson in order to learn more about her judicial philosophy and approach to resolving legal disputes, both of which are vital considerations as they decide whether to confirm her to the high court.
Originally published by The Daily Signal. Republished with permission.