In This Episode
Being a Supreme Court podcast means we spend much of the year in dystopia. So just this once, let’s look at the silver lining that is Justice Ketanji Brown Jackson. Amir Ali, executive director of the MacArthur Justice Center, joins Melissa, Kate, and Leah to look back on Justice Jackson’s first year on the Supreme Court.
- Listen back to our episodes on Justice Jackson’s historic nomination and hellacious confirmation hearings
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Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Melissa Murray Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m one of your hosts, Melissa Murray.
Leah Litman I’m Leah Litman.
Kate Shaw And I’m Kate Shaw.
Melissa Murray It’s been one of those years at the Supreme Court, and as we’ve suggested on this podcast before, next term is likely to be another barnburner because this court shows no sign of letting up. But before the October term, 2023 gets started, we wanted to look back on what for us was a real highlight of October term 2022. And to be clear, there were not a lot of highlights in October term 2022. But for us, one of the biggest and brightest lights was the addition of the court’s newest justice, Justice Ketanji Brown-Jackson. And so we wanted to do a rookie year retrospective on Kobe. JAY And joining us to break it down is Amir Ali, the executive director of the McArthur Justice Center. So welcome to the show, Amir.
Amir Ali Thank you. It’s a real pleasure to be with you all again.
Leah Litman So Amir, as we mentioned, is the executive director at the McArthur Justice Center. He also teaches civil rights litigation at Harvard Law School, and he has successfully argued several civil rights cases before the court, including Thompson versus Clerk Garza versus Idaho and Wells versus United States. And he has been involved in many, many, many more cases in state and federal courts across the country. We kind of teased this episode with your former colleague Amir, Eesha Anand, who offered some comments on Justice Jackson in lieu of an hour long fan cast. But when she said that, we were like, why not both?
Kate Shaw Because hosting a Supreme Court podcast means we spend a lot of time in literal dystopia. So for our own sake and for the sake of our listeners, we should take the time to mark the genuinely good news and the bright spots. There aren’t a lot of them, but this is a huge one, right? The extraordinary addition to the Supreme Court that KBJ has been.
Leah Litman So maybe before we dive into the term, we should recall Justice Jackson’s nomination and confirmation to the court when she was nominated. We noted some especially moving moments from both her speech and President Biden’s speech announcing her nomination. So let’s play a clip of Justice Jackson here.
Justice Jackson As it happens. I share a birthday with the first black woman ever to be appointed as a federal judge, the Honorable Constance Baker Motley. We were born exactly 49 years to the day apart. Today, I proudly stand on Judge Motley shoulders, sharing not only her birthday, but also her steadfast and courageous commitment to equal justice under law. Judge Motley’s life and career has been a true inspiration to me as I have pursued this professional path. And if I am fortunate enough to be confirmed as the next associate justice of the Supreme Court of the United States, I can only hope that my life and career, my love of this country and the Constitution and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded will inspire future generations of Americans.
Leah Litman And then we’ll play one from the president as well.
President Biden Her parents grew up with segregation, but never gave up hope that their children would enjoy the true promise of America.
Leah Litman And then came the confirmation hearings where Republicans, as Senator Cory Booker described, tried to be thieves of joy and steal this wonderful, historic moment for the country. And we wanted to replay these not because we enjoy reliving this, we certainly do not. But just to remind people of the vicious, unhinged attacks that were leveled at this woman. So when we get to describing what a fucking rock star she’s been on the court, we can rub it in their faces just a little bit.
Melissa Murray First up, let’s hear from the gentleman from Cancun.
Clip No one case can stand in for a judge’s entire record. Okay, but I’m discussing every why. So if you’re not going to explain it, Senator, would you please let her respond? No, not if she’s not going to answer my question. Just going to give a speech and you are not taking my time. If you want to filibuster, you’re welcome to do so. But at least give you an opportunity to speak. And you should give her an opportunity to respond if she wants to answer the question. I asked her why he’s allow her to answer. I asked her why she sentenced Chazen to 28 months when comparable defendants in her own words were sentenced to substantially higher. And she said she’s not going to answer you. I mean, I would welcome your answer. Senator, I didn’t say I’m not going to answer. I said my answer. This is facts in this case Chazen.
Melissa Murray And here’s another clip. Who could forget this one? It was epic. Are babies racist? Let’s hear it again from the senators mouth.
Clip They include literally stacks and stacks of books. And I’ll tell you, two of the ones that were most stunning. They include a book called Anti-Racist Baby by Ibram Kendi and they’re portions of this book that I find really quite remarkable. One portion of the book says babies are taught to be racist or anti-racist. There is no neutrality. Another portion of the book. They recommend two babies confess, when being racist. Now, this is a book that is taught at Georgetown Day School to students in pre-K through second grade, so four through seven years old. Do you agree with this book that is being taught with kids that the babies are racist?
Kate Shaw Okay. And let’s not forget the number of times he refused to let her speak in response to the questions that he was posing.
Clip Senator, no one case can stand in for a judge’s entire sentencing record. I’ve sentenced more than 100 people. You have eight or nine cases in that chart. Judge, you said that before. These are the eight or nine child porn cases. I will say to correct the record and just say to the judge, there’s no point in responding. He’s going to interrupt. Thanks. Look, I appreciate the chairman trying to filibuster. And if you don’t like your witness’s answers, you’re welcome to provide your own. She is declining to answer the question. And Chairman Durbin, if you want to join her on this, on the on the bench, you can. But, Chairman Durbin, my job is to make. Chairman Durbin. I’m not interrupting your questioning. I’m asking you to give her a chance to answer. But she’s consistently said she’s not going to answer.
Leah Litman And not to be outdone, there was Senator Marsha Blackburn delivering a truly unhinged opening statement in the very faux sweet care and tone in which she accuses Justice Jackson of having a hidden agenda.
Clip I can only wonder what your hidden agenda. Is it to let violent criminals, cop killers and child predators back to the streets? Is it to restrict parental rights and expand government’s reach into our schools and our private family decisions? Is it to support the radical left attempt to pack the Supreme Court? You have praised the 1619 project, which argues the U.S. is a fundamentally racist country. And you have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants. Is it your personal hidden agenda to incorporate critical race theory into our legal system?
Kate Shaw Okay. So moving on from Cruz and Blackburn to America’s favorite sprinter, the porn obsessed and possibly CU curious Josh Hawley and CPJ’s responses to his gross distortion and misrepresentation of her sentencing record.
Clip Asked for enhancements related to prepubescent children related to the nature of these images, you say, I’m not going to apply it, but what you’re telling me is I guess that you don’t have a policy objection. Why? Why didn’t you apply the enhancements as they were asked for? Senator, I’ve answered this question many times from many senators who’ve asked me, so I’ll stand on what I’ve already said. So you have nothing to add about about why these crimes, why these images, in your view, do not signal an especially heinous or egregious child pornography offense? That’s Hawkins. You say in Cooper, I understand the government’s argument, but I don’t find them persuasive. The fact that there were prepubescent children. From the standpoint of characterizing this as an especially egregious child pornography offense, that’s page 58. Senator, I’ve answered this question and I’ll stand on what I already answered. So. But your answer is what? I mean, refresh my memory. Senator, I’ve answered this question. I’ve explained how the guidelines work, and I’ll stand on my answer. But the guidelines are not mandatory. I wish they were.
Melissa Murray Despite all of this incredible crap, there were still some highlights and moments where Justice Jackson truly sparkled through all of this bullshit and delivered some moments that were unbelievably memorable. Like this exchange after Senator Padilla of California asked her for her advice to young people.
Justice Jackson I was really homesick. I was really questioning, Do I belong here? Can I. Can I make it in this environment? And I was walking through the yard in the evening and a black woman I did not know was passing me on the sidewalk. And she looked at me and I guess she knew how I was feeling. And she leaned over as we crossed and said. Persevere. I would tell them to persevere.
Melissa Murray Tears?
Leah Litman Yes. Despite the GOP senators just utterly, shamefully and reprehensible and unfairly attacking her, Justice Jackson is thankfully confirmed to the court. And we didn’t even play Lindsey Graham’s moments about the Kavanaugh hearings or asking Justice Jackson about her faith.
Kate Shaw Some things don’t need to be relived, I think. Okay, so, Amir, you’ve been very patient. So let’s maybe start by discussing the newest justices presence at oral arguments. And, you know, I guess just maybe tell us to start, what are some of your highlights and to the extent you are willing to speculate, and we definitely are, do you think that her presence at oral arguments influence the outcome in any of the cases?
Amir Ali Ohh, there are a lot of questions there. But let me actually back up for one minute, just because we talked about the confirmation. And I feel like there are a couple of things that I think we have to say. And I agree it’s a great opportunity to look at the impact she’s actually had. But look, Justice Jackson is the first black woman on the Supreme Court. And I think it’s appropriate and important to pause even now today at the end of the term and heading into the next term to appreciate that she’s also the first public defender to ever be on the Supreme Court. And I think it’s appropriate to pause and appreciate that historic aspect of her being on the court. This is true of her opinions, which I hope we’ll talk about a fair amount today, too. I think her story here is a story about power and more specifically at oral argument and her opinions appreciating how the legal system impacts people without power. And I think if you don’t see that, you don’t see the full significance of Justice Jackson’s presence on the court. And I think that’s important enough to break down. And I’ll do that in part because my own team at the MacArthur Justice Center spends their time fighting for people without power. And it is particularly meaningful for us to see someone like Justice Jackson represent that on the court. We represent people, some who have done bad things, some have made mistakes, and some who frankly have done nothing wrong, who find themselves up against the full machinery of the federal or state government and a harsh system that threatens to lock them up for life or take away basic rights because they’re behind bars. And I think if I could just give an example of of of Justice Jackson being a public defender, because for us, that’s particularly significance and concretely about what that experience mean, because I think this shows up, particularly in some of her early opinions. You know, if you’re a public defender, you have the experience of trying to talk to your client about their case and they’re telling you I’m being abused while I’m here in jail or I’m being denied medical care while I’m here in jail. And you have the experience of turning to them and saying, I’m sorry. There’s no right to a lawyer for that, and I can’t help you with that. Or you have the experience of talking to a client who you think isn’t so culpable or maybe is completely innocent and explaining to them that they might still want to consider pleading guilty to an offense. You know, Justice Jackson, to use the example, was a federal public defender and 97 to 98% of criminal cases in the federal system entered a guilty plea. And that’s not because all of those people are guilty or deserve the charge or sentence that they’re agreeing to. And those experiences, That’s what Justice Jackson brings to this court. And you can contrast it with their colleagues, right, who have spent the majority or at least significant parts of their own practice working for the other side of the power equation, either the federal government or representing corporate interests. So I just wanted to kind of tease that out because that is real. And we talked at the time of the confirmation about who she was. And I think we ought to look at what that actually means to have someone with her lived experience on the court.
Kate Shaw I’m so glad you took an extra beat on the confirmation piece of it, because. That’s right. We did. There was a lot of talk. Obviously, we played some very hostile Senate colloquy is, but folks on the Democratic side extolled that not just the historic nature of her nomination as the first black woman, but also the federal defender or public defender in general experience. But that’s a lot of really kind of meaningful additional detail, like why that matters so much.
Melissa Murray Well, it’s also the case during the confirmation that those very attributes that you mentioned were the reason why she was targeted for so much of that vitriol. The fact that she was a black woman, that she had defended individuals who are in the criminal justice system, that really formed a big part of the opposition to her. And we shouldn’t lose sight of that either.
Amir Ali Yeah, and this is real expertise, right? I mean, like, let’s give you an analogy. I think it’s a good analogy because I come back to your oral argument question. I think Justice Jackson has been surgical in her oral argument questioning. So let’s say you have a heart problem. When you go to a heart surgeon and you sit and then the surgeon tells you, I think you need surgery and I can do it for you. And I’ve got some good experience over here on this side of the heart, but I’ve never actually seen the the messy parts of the heart. I’ve seen it from the outside from a distance. But I think you ought to do the surgery. And I could be the one who does it for you. I think you would probably say, I want to go get a second opinion from someone who’s seen the messy parts of the system. Right. And I use that analogy to say this is actual expertise. Right. That she brings to bear. It’s not just the fact that she was a former public defender. It is the experiences she had working as a federal public defender that she brings to bear as expertise, both in her own opinions and jurisprudence and questioning, and hopefully that her colleagues will understand that they might lack and not to turn to her for when it comes to that expertise.
Melissa Murray Don’t hold your breath.
Melissa Murray [AD].
Melissa Murray So we talk a little bit about some of the ways in which she’s actually been influential and maybe turning the tide in some of these cases. So Adam Feldman at Empirical SCOTUS has noted that she was incredibly active in her first term, the most active new justice at oral arguments probably in the history of the court and definitely over the past 30 plus years, as Adam Feldman put it. And when crunching the vote numbers, Feldman noted that she was in the majority 84% of the time, which is far more than the other progressive justices from the prior term. And so let’s talk a little bit about what that looks like and how it cashes out on the ground. So one place where we saw her immediately step in and make her voice heard was in Merrell versus Mulligan, that very significant voting rights case, a challenge to Section two of the Voting Rights Act concerning Alabama’s racially gerrymandered districts maps from the 2022 midterm election. So let’s play a little clip from oral argument and hear Justice Jackson’s own words.
Justice Jackson Yes, I am so, so glad for Justice Barrett’s clarification, because I had the same thought about what you were arguing. And I’m glad that you clarified that. Your core point is that the jingles test has to have a race neutral baseline or that the first step has to be race neutral. And what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there’s a 14th Amendment problem? And let me just clarify what I mean by that. I don’t think we can assume that just because race is taken into account, that that necessarily creates an equal protection problem. Because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment, in a race conscious way that they were, in fact, trying to ensure that people who had been discriminated against the freedmen in during the reconstruction construction period were actually brought equal to everyone else in the society. So I looked at the report that was submitted by the Joint Committee on Reconstructed Reconstruction, which drafted the 14th Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced that amendment said that, quote, Unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crushed to death the hated freedmen. That’s not that’s not a race neutral or race blind idea in terms of the remedy. And even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people based on their race were being treated unequally.
Melissa Murray So, Amir, when we first covered this on the podcast, we talked about this, as, you know, a really masterful intervention, basically using originalism against the originalist master’s tools to dismantle the master’s house. What do you make of this intervention and how do you think it cast out in the ultimate outcome in Merrill versus Mulligan or Allen versus Mulligan as it’s now known?
Amir Ali Yeah. So I don’t know what Justice Jackson exactly how she was thinking about this when she did it. But I’ll say this when I heard this at the oral argument, what I felt Justice Jackson was doing was exposing truth. I think what she was doing here from my perspective, was saying, I’m not going to let you all decide this case on a one sided understanding of the history that has frankly dominated the kind of both academic side. I think of this in a lot of ways and a lot of how law students coming out of law school would would think about this. And I think she was saying, I am going to. Read the actual history that occurred here. I am going to explain to you that these amendments were passed in response directly to racial discrimination and not colorblind for that very reason. And so to me, I think it may well have had an impact. I think whenever you try to expose truth and say, I’m not going to let you get away with this, and I’m going to make sure that this is sad, that you have the potential to actually influence the outcome and there is power in that. I also believe that it’s the right thing to do, regardless of whether you think that it’s going to impact the ultimate income. And we can talk about past shameful decisions of the Supreme Court where things like this just were never said out loud in the Supreme Court courtroom during the argument. And so I think this is now this is powerful regardless of what the outcome was. And I think you’d be reasonable in thinking that it actually influenced what happened.
Leah Litman Yeah, I think it is very possible that she affected the outcome in this case. You know, when the court granted it, in part because, you know, they had allowed Alabama to use a gerrymandered map in the midterms. There was real concern that they actually were going to adopt, you know, a more colorblind race blind approach to the Voting Rights Act. In this particular case, you know, as to whether it was her intervention, it’s hard to say. But as you were saying, even if she didn’t affect the outcome, like she intervened in this case in a way that had the power to speak to the broader public as well, so that they understand. Right. The richness of the constitutional history behind the reconstruction amendments and part of what motivated them, you know, in a register that I think, you know, people picked up on and we’re talking about after the oral argument. And I was glad this happened in part because during her confirmation hearings, you know, the junior senator from Georgia, Jon Ossoff, invoked voting rights and the Constitution’s unfulfilled promises in discussing his perspective on her nomination. So let’s play that clip here.
Clip For any colleagues who doubt that those promises remain unfulfilled to too many. I remind them that in my state you can predict how long someone must wait to vote by where they live and the color of their skin.
Kate Shaw And maybe, Amir, to go back to something you just said. I don’t know if you have any particular case in mind when you suggest that this is a perspective that has been lacking inside the halls of the Supreme Court previously. But what your comment called to mind for me was Shelby County, which is, of course, also a Roberts authored opinion also about the Voting Rights Act and also a54 opinion comes out very importantly the other way. And just while you were talking, it made me wonder, there’s a lot of speculation how, you know, what is it about the, you know, decade that intervenes between Shelby County and Allen versus Milligan that dictates these very different outcomes, both at the pen of John Roberts? And I think it’s impossible to discount the possibility that the presence of Justice Jackson, both on the court in general and at the oral argument in this case, is a significant factor.
Amir Ali Yeah, I think Shelby County is a great example of that. And I agree with what you just said. I think, you know, there are other examples from history, right. I’ll give you the example of Korematsu, the case in which the Supreme Court upholds the internment of Japanese-Americans. Now, I think that case, the results should have been known at the time to be wrong. But what you may recall is that afterwards it turned out that the federal government had actually withheld information showing that it, in fact, knew the Japanese Americans posed no security risk to the country. And so it gave this out in this kind of like, oh, okay, maybe this is some explanation for the court getting the result wrong. And now it’s the federal government apologizing to the court. And I think part of what’s going on here that is so powerful is having a justice in the courtroom saying, no excuses. I’m going to in the courtroom have this be in the record that this is the actual history of the 14th Amendment and you can’t come back and later say, oh, we didn’t know that.
Melissa Murray It’s also an important, I think, public service and educative message, especially in light of everything that’s going on across the country to limit the teaching of true history in school curricula. She’s basically making this a public message, talking about the reconstruction amendments, making clear that they are as foundational as the founding to our country. And Cates made this point on the podcast before, you know, when she talks about the quote unquote, framers, she’s not just talking about the individuals who wrote the original Constitution. She’s also talking about these people who wrote the 14th Amendment and whose names we don’t know in the same way we know James Madison or any of the other quote unquote, founders. She again raised the notion of the reconstruction amendments and their pivotal nature in our understanding of constitutional history and a really important set of cases. Students for fair admissions versus USC, the case that she was permitted to participate in. She, of course, recused herself from Students for Fair Admissions versus Harvard because of her prior service on Harvard’s board of overseers. But again.
Kate Shaw She’s ethical in addition to everything else.
Melissa Murray I mean.
Kate Shaw She’s the most ethical justice. Sorry, Melissa.
Melissa Murray We don’t know about her billionaire patron. I’m guessing she doesn’t have one. That’s that’s a strike against her, I think.
Kate Shaw Seems like a safe guess.
Melissa Murray She’s she’s definitely not getting invited on the private jet. But let’s take a beat and listen to her in this oral argument, because I think, again, this was the pivotal moment in this oral argument that really, I think, shaped the course of how this opinion was written and leaves open, I think, some room for how we begin to talk about what is left of affirmative action after these two cases.
Clip And so what I’m worried about is that the rule that you’re advocating that in the context of a holistic review process, the university can take into account and value all of the other background and personal characteristics of other applicants, but they can’t value race. What I’m worried about is that that seems to me to have the potential of causing more of an equal protection problem than it’s actually solving. And the reason why I get to that, But possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process. And I’m hoping to get your reaction to this hypothetical. The first applicant says, I’m from North Carolina. My family has been in this area for generations, since before the Civil War. And I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that. And given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school. The Second Apple. Kent says I’m from North Carolina. My family’s been in this area for generations, since before the Civil War. But they were slaves and never had a chance to attend this venerable institution. As an African-American, I now have that opportunity. And given my family family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school. Now, as I understand your know, race conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to, because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know, based on how your rule would likely play out in scenarios like that, why, excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored just like the other person has their personal background, family story honored. Why is telling him no, not an equal protection violation?
Melissa Murray So, Amir, what do you think was the influence of this colloquy on the ultimate opinion that the court announced?
Amir Ali So, you know, I think it connects to the conversation we were just having in Milliken, and it’s about whose history matters. Right. I think the point she is making here is that at the end of the day, the court is saying that some people get to talk authentically about their history, their family history, and how that has formed, who they are and maybe why this institution should be interested in their presence on campus and other people. Their history can’t be thought of or considered in the same way as part of that process. And so, you know, just as she is taking on the notion of who the framers are when it comes to history in the Milligan case, you know, that really goes to this question of who and what history matters. And I think that’s a theme here as well. And I think it’s something we’re going to continue to see from the Supreme Court. Right. There’s been this real effort to have originalism be the defining feature, which means history being the defining answer to what rights we have today. But they’re not historians. Right.
Melissa Murray That is the understatement of the decade.
Amir Ali And nor are their law clerks. And and so this question of what history matters, which is, I think the question you flagged in the context of the Milligan case and also whose history matters are going to be things that we continue to see as the court kind of continues down this path of making history. The pivotal question in every case, even though they’re not really trained in figuring out what history is.
Melissa Murray Do you think that this colloquy is what spurred John Roberts to include that really interesting paragraph toward the close of this majority opinion where he suggested that schools could consider and students could submit some kind of paragraph or statement about how various aspects of their identity had shaped their lives. Is this a direct result of this colloquy?
Leah Litman I mean, I’ll speculate like I think, yeah, like it is partially a driving force behind it. Like you can’t foreclose this possibility given the serious constitutional problems she identified with doing so.
Melissa Murray I mean, she basically said it’s by itself an equal protection problem or even a First Amendment problem.
Amir Ali Yeah, Yeah. I think this goes back to Justice Jackson being surgical in her oral argument presents right. When you listen to that back and forth you get this point right, that this is about people being able to talk about who they are. And it seems like the kind of point that afterwards you just can’t ignore whether you’re listening to the oral argument or whether you’re Chief Justice Roberts trying to write an opinion precisely because Justice Jackson was in the room and made sure that this moment happened, you couldn’t ignore it.
Leah Litman So, you know, we’ve been talking about the kind of higher profile cases that the court heard and decided last term. But she was also, I think, extremely present and influential in some of the cases that didn’t get as much public attention. So too, I wanted to know, one is Health and Hospital Corporation of Marion County versus Milewski, which was a huge civil rights enforcement case about whether private individuals can. File lawsuits if they’re rights under spending clause, programs are violated. And when you talk about protecting the interests of the less powerful, you know, this case is literally about, you know, the abuse of nursing home residents and noncompliance with the federal conditions governing nursing homes. And in this case, you know, she had this intervention once again about the relevant history here, statutory history behind the general civil rights statute, section 1983. You know, she describes it part of the Ku Klux Klan Act.
Clip Which when you look at the actual history of 1983, that was precisely what Congress was doing. It was a part it 1983 of the Ku Klux Klan Act, where Congress had looked at the situation of states not giving forum, not giving a cause of action to people who were being terrorized. And instead of adopting and incorporating those principles in saying, here’s this new law, and we’re going to incorporate the common law of excluding you from the court. In fact, Congress created the right in order to allow people to go to court. So while there might be situations in which we carry old will soil into our interpretation, I don’t understand how you can interpret a an express grant of authority to go to court to enforce rights created by law consistent with the opposite situation at common law, and say we have to limit the current right because in common law you didn’t have that right.
Leah Litman And again, just because I’m comfortable, wildly speculating, I mean, this was a case where I feel like all of the signs were pointing in the direction of the court going the other way and closing the door and narrowing the availability of civil rights remedy is for private individuals suing to enforce spending clause programs. And she gets the opinion. She’s assigned the opinion. It’s seven to affirming that this individual can bring suit. I mean, this is not an example where I think like public attention on the court really affected the outcome just because this is one of those lower profile cases. And to me, it was like this intervention that I think was potentially like really influential. Sorry, that wasn’t a question. Just a long comment.
Kate Shaw This is a case where sometimes the court and particularly this court just taking a case is an incredibly ominous signal and suggests this receptiveness to this argument that had been percolating in conservative legal circles, that somehow you could not use the general federal civil rights statute to bring claims if the underlying statute was passed pursuant to Congress’s spending clause authority. And the argument never made any sense. And yet it obviously was at least intriguing enough to four justices that they were willing to take this case and potentially unsettle well-settled law. And not only did that narrowly fail, it failed, you know, by a72 vote. And I think you’re totally right. I read that as having everything to do with Justice Jackson, both the clip we just played and just in general, kind of her presence at the argument and then the incredibly powerful opinion she wrote when she got the assignment, because it’s a great, great opinion.
Leah Litman So because of, you know, MacArthur’s expertise in civil rights and criminal justice, I also wanted to highlight her national forensic champion chops when she used them to showcase, like, I think, her experience as a former public defender in Laura versus the United States, a case about, you know, the applicability of some very severe mandatory minimum penalties under the Armed Career Criminal Act. And so here she is twice, I think, basically making the record clear that if the court were to say this is, you know, mandatory minimum penalties are not applicable. That’s not an anomalous result and wouldn’t have these disastrous consequences, which I think is, you know, something that is like too frequently invoked or at least used to be, you know, in these criminal cases involving the government.
Clip Right. So if they charge a C via J violation, although they might have to prove the predicates from C, if the only thing on the table is J because that’s the way they’ve charged it, then they’re stuck with the penalty structure that attaches to J. Right? I agree. Yes. They charge it as a C. I mean, they’re sort of they’re making the decision upfront as to which set of penalties they intend to argue for. What if we agree that the reason why they don’t create an anomaly is first, because that’s the text obviously says doesn’t say they’re read in. But setting that aside, they don’t create an anomaly because J is still broad enough to allow for the greater penalty because the government sets this up as a catch 22, that that and that’s really underlying your black burner concern. You said earlier, you know, the government would have to leave on the shelf the mandatory minimums in C if it picks j But I guess I don’t understand why they’re not why the government perceives itself to be losing the opportunity for a higher penalty if it picks Jay. You still go to court and you still say a killing happened in the context of this carry carrying in a sense. And so, Your Honor, in your discretion to impose the death penalty or the term of years or whatever, we argue that you should give this person more than a person who just would have gotten five years under the mandatory minimum. And as Justice Kavanaugh pointed out, nine times out of ten, you would get it because the court sees a death in this situation and J permits the court to impose a higher penalty for that. So it’s not a situation in which by picking Jay, you somehow are relegated to smaller or lesser penalties in a way that might implicate your blackbird or concern.
Leah Litman And here too, like she is assigned the opinion, it is unanimous. She managed to get Sam Alito’s vote in a criminal case for the criminal defendant, and I think her take on it clearly moved the needle. You know, in the Milewski case, you know, her opinion mentions the historical evidence in the backdrop. And in Laura, you know, she again describes how like there’s nothing odd here, you know, that will result from ruling for the criminal defendant.
Melissa Murray Do you think Sam Alito called Justice Thomas is like she keeps doing it. I have to join her.
Amir Ali Oh, you know, there’s an interesting parallel here from the kind of originals case in the Milligan case. Right. Because this case was a case about text. Textualism is another framework the court has really pointed us towards and pointed us towards and points us towards. And if you listen to the oral argument just coming back to Justice Jackson’s value here, the court was pretty clear that like the text went in the direction of the criminal defendant. But multiple justices said out loud that they just couldn’t understand why that would possibly be. And it was Justice Jackson who explained why that is not so odd. And that carries the day. I think some of them might say, well, we were just following the text. It doesn’t matter, but you could. Hell that they wanted some sort of explanation for why this was the right outcome. And it was Justice Jackson. Former federal defender. We’re dealing here with a federal criminal statute who was able to kind of connect the dots at oral argument. And in some ways maybe she’s, you know, saving them from themselves. Every day. They get to sticks and they have a reason to stick to the text as they’ve been saying that they ought to do in this case as a result.
Kate Shaw Yeah. I mean, we’ll maybe do some kind of bigger theme describing in a couple of minutes. But I do think that she’s incredibly deft at doing that. And in actually explaining that the text points in the direction that the case should come out in and not trying to sort of superimpose kind of a free floating set of arguments about congressional purpose or policy, but really to hew closely to text in a way that is very palatable to the avowed textualist on the court. Before we move to kind of the bigger themes, just one more case we wanted to spend a couple of minutes on, which is, of course, three or three creative versus illness. And in particular, we want to replay basically the hypo that triggered Sam Alito so much that he had a literal meltdown from the bench. So here’s Justice Jackson.
Justice Jackson What I’m asking you is I have a public business. I’m a photographer. My belief is that, you know, I’m doing It’s a Wonderful Life seeds. That’s what I’m offering. Okay. I want to do video depictions of It’s a Wonderful Life. And I knowing that movie very well, I want to be authentic. And so only white children and families can be customers for that particular product. Everybody else can. I’ll give to everybody else. I’ll sell them anything they want, just not the It’s a Wonderful Life depictions. I’m expressing something right for your purposes. That speech. What about what’s the other step? It’s speech. And I can say anti-discrimination laws can’t make me sell the It’s a Wonderful Life package to non white individuals.
Kate Shaw So this did not affect the ultimate bottom line disposition of the case. But Justice Sotomayor’s dissent, which Justice Jackson joined, was incredibly powerful. And here, too, I think very much like the Students for Fair Admissions affirmative action case, her high powered oral argument was essentially included verbatim in the dissent. And this is one of those dissents that does feel like it’s speaking to like future generations. And at some point, the extraordinary error of the majority’s opinion in three or three creative, which announces an enormous exception to general nondiscrimination principles and public accommodation laws, and maybe more broadly, that that will one day command a majority on the court. And so you sort of see Jackson in Sotomayor’s dissent, sort of speaking to a future court and to the country more broadly about the enormous error in the majority opinion.
Justice Jackson [AD]
Leah Litman So maybe now we can turn to just kind of general themes we have observed, you know, in her rookie year. So whether that is notable opinions, particular approaches she takes in cases or otherwise, you know, what have we seen that we’re looking forward to seeing more of?
Melissa Murray I know I’m excited to have her continue to provide an additional voice for people of color on the court. And, you know, other people have talked about this on this podcast before, but Justice Thomas has for a very long time sort of held court as the only black voice on the court. And this year he really got a run for his money. And I think it was great for people of color outside of the court to say, yeah, like we don’t actually agree with this guy, we actually agree with her. And to have her voice things that I think many people in the black community are thinking, whether it’s about affirmative action or voting rights or whatnot, without the mediating influence of his voice as the lone black voice. So I’m looking forward to that.
Amir Ali You know, I think this is just the first term of Justice Jackson, But I think before long, we’re going to be looking back at Justice Jackson as I’m going to take this as the dean of due process. And I think she’s just shown a desire to come out and talk about the notion of due process in a way that we haven’t seen for a really long time and in a way that is so effective. One thing about this term is that Justice Jackson didn’t have a say in which cases the court took on, Right. Just given the timing of her confirmation. But one thing she did have a say in is when she would weigh in on different cases in the court’s shadow docket and right opinions and her first two opinions she decided to write were both in death penalty cases. There was the case of Kevin Johnson coming out of Missouri, which was an extremely concerning case. This is a case where the prosecuting office that put Kevin Johnson on death row had done an investigation into the facts of the case. There was a new procedure that Missouri passed to look at constitutional problems with convictions, and the investigation showed and concluded that the only reason the death sentence was not in this case was because Kevin Johnson was black. And there are all sorts of systemic problems that people know about, about the death penalty in the United States and how you are magnitudes more likely to get it and to get sentenced to death if you are black or a person of color. But you don’t have to go to the macro statistics in this case. And there was evidence in this particular case that this prosecutor only saw death sentence in exigent circumstances like this, where the defendant was black. There was evidence in this case of a secret memo of the prosecutor in this case trying to exclude black people from the jury. And this is from again, I just want to say this. The prosecuting agency that put him on death row and this case ends up in the court’s shadow docket, essentially. And the question is whether to stay the execution to allow a hearing on this after the prosecutor said he deserves a new trial and the Missouri courts say no hearing necessary. And the U.S. Supreme Court says no hearing necessary, consistent with federal due process. And Justice Jackson decides to write, even though it’s not on the court’s merits docket and says due process requires this. You cannot have a procedure that affords someone a hearing in this very instance where we have all of these problems with this person’s conviction. And no, it was a fact. You know, we have the person who put them on death row concluding that it was because of this person’s race and just deny them a hearing. So, you know, I’m excited to see Justice Jackson, not just because we have an office in Missouri. We were very concerned about this particular execution, even though we weren’t directly involved in the representation. But this stuff really matters. And her eye for these sorts of cases where there’s a real undermining of, I think, the usual assumptions people have when they think about the criminal legal system and maybe ought to ought to second guess themselves.
Leah Litman I like the dean of due process. Maybe, Melissa, we can give her the duchess of due process as well to put her on. You know.
Melissa Murray Love, I like that. Okay.
Leah Litman Okay. Because, of course, you know, along those lines, you know, in her descent in Jones versus Hendrix, she braces the idea that the Constitution, including the due process clause, actually requires there to be a judicial remedy for innocent people. And if that sounds intuitive, right, it is. But that’s not really a perspective that has been embraced in a full throated, vigorous way in the way she did in that dissent. And, you know, again, just another due process example, you know, Brown versus Louisiana, a Brady claim arising out of Louisiana in which the state failed to disclose that someone else had confessed to the crime. And she’s like, yeah, that seems like a case where we should hear because Louisiana upheld the conviction. And so, yeah, I, I love that moniker.
Kate Shaw The Duchess, though not the dean okay its a slight modification Amir, but otherwise we love it.
Melissa Murray Friendly amendment.
Kate Shaw But yeah she just like hit the ground running in terms of dissenting from denial of cert in capital cases on the shadow docket. I mean in addition to the ones that you, Amir and Leah just mentioned, there was Chen versus Shoup, which was a dissent from denial in a capital case involving a Brady issue where the state basically suppressed exculpatory evidence regarding one of the state’s key witnesses. There was another when you mentioned kind of, you know, how many the virtually all criminal cases are disposed of via plea bargains. She dissented from denial in a case, Davis versus the United States, which involved the standard for ineffective assistance of counsel claims in the context of plea bargains. Like she knows from the inside how important the law governing plea bargains is. And it’s often her and Sotomayor, sometimes her alone. In these cases, most of her colleagues are not interested in taking up some of these flagrant violations of constitutional rights are happening in the criminal system constantly. But I do think she has a wider public audience in mind. And maybe it’s also, you know, to send messages to local prosecutors offices that actually people are paying attention, that some of the unbelievably shady things they are doing on the ground, they hope, go unnoticed. And often, you know, obviously folks like McArthur and other organizations are doing incredible work in monitoring and bringing to light this kind of activity. But she has a powerful platform and she is clearly not afraid to use it.
Leah Litman So another theme that I noticed, it’s difficult to say just with one term is her perspective on statutory interpretation. And Kate, I know you alluded to this as well. And Amir, you too, too, in noting that the two last week was really about textualism. And, you know, we have talked on this podcast about how mind numbing some of the court’s approaches to textualism are and also how you don’t have to be like a full blown legal realist to think that maybe, just maybe, these cases are not completely turning on the dictionary definition of so, but instead depend on some assessment about. Whether the consequences that would flow from a given interpretation cohere with the scheme Congress set up or something along those lines. And it was this perspective that she brought, I thought, both to oral arguments and to opinions. So Amir, you mentioned in Laura, she’s basically coming up with an explanation for why Congress would have created the scheme in this way. And she pointedly asked lawyers that question during oral argument, you know, including in Sackett, like why would Congress do this, not allow the EPA to regulate wetlands given how biodiversity works? And then, you know, again, in her opinion in Laura, talking about statutory design and context and purpose in a criminal case without devolving into well, obviously Congress intended it to be maximally punitive. Right. Looking at when the different provisions were enacted, like different kind of small changes Congress made that might have been overlooked. And so I especially enjoy, I think, her participation in those cases.
Kate Shaw I wonder if we need a moniker for her statutory interpretation. But that’s a royal one, because I do think that she has this distinct approach to statutory interpretation. Yeah, the workshop didn’t see it happening, but she like, yeah, is there, is there a.
Leah Litman Statutory interpretation Sussex?
Kate Shaw Yeah. But that.
Leah Litman Statutory interpretation squad. We’re in her squad.
Kate Shaw Okay. Okay. All right, all right. I like those, but I do think that we have you know, we have obviously a limited number of data points, but it is just a distinct you know, as we have been sort of suggesting, she’s very serious about text is not the old purpose of ism where we ask about purpose. We really focus on legislative history and then we kind of consult text in a glancing fashion on the way out. It’s really, really focused on text, but it is text in context. It’s text and dialog with the rest of the surrounding statutory framework. It is not this atomistic consideration of one word or one phrase or this kind of reflexive adverting to dictionary definitions, although, you know, she has cited dictionaries, but it is something that I think is emerging in a very distinct style that is very much hers. And so I think that, you know, she said that she’s a textualist in her confirmation hearings. And I think that’s right. I think she is just doing something quite distinct from the other avowed textualist on the court.
Leah Litman Non braindead textualism. Does that work? Still, I’m still working on it. I don’t have it yet.
Kate Shaw No, no.
Melissa Murray Textualism for non zombies, like. So what is it like she has some really interesting tells an oral argument. I mean if you listen to her, you know, she’s about to go for the jugular when she jumps in and says something like, I’m so glad you asked that question. It’s like, oh, you’re going to die. Like, I’m sorry for you.
Kate Shaw Justice Stevens used to sort of, you know, begin with this, like, very polite, like counsel. May I ask you a question like that was always how he prefaced. And I do think that she you know, you can sort of just see her very high degree of social intelligence and emotional intelligence from a bench in that she piggybacks on questions or observations made by her colleagues, often her more conservative colleagues, and sort of posits a set of concerns that she suggests, like, you know, in a number of different cases, kind of resonate with the concerns that they have voiced and of is thereby kind of trying to bring them around anyway. I think that she is just like pretty masterful at oral arguments. It’s kind of wild how good she is after only obviously she’s been on the bench for a decade. But the Supreme Court is a distinct place to engage with counsel and she is so, so good at it.
Melissa Murray But you saw this in the confirmation hearings. I mean, because to be assailed with, you know, charges of pedophilia and everything else until, like literally you saw her thinking about it, like, do I risk it all in this moment and tell this guy to like, f right off? No, I don’t know. I mean, she’s always thinking and trying to be strategic. I think she has to be She’s like she’s a black woman in the law. She has had to be incredibly strategic to get as far as she has in such a short period of time. And so I’m not surprised by this at all. But I do love it when the lawyers underestimate her. And, you know, she comes at them with like, I’m so glad that Justice Barrett asked that question. I’m about to gut you. And they’re like, Yes, please. I would like to be I’m going to answer it in a way that’s going to get me gutted.
Amir Ali And you also wonder whether she’s she’s getting real respect for this, right? I mean, one other thing you see is her we talked about her potentially impacting the actual outcomes in cases, but you also see her and Justice Gorsuch combining for a number of opinions this term that are separate, where they’re really kind of exerting influence on the ways that lower courts might start to think about the impact of cases and not to come back to the dean and or duchess of due process. But I think this is one area where, you know, I think Justice Jackson said if she thinks it’s necessary and concludes it’s important, she’s going to write on her own. Right. We talked about some of those cases, but a number of these cases where she’s brought Justice Gorsuch in or joined Justice Gorsuch when he’s writing, deal with this issue of due process, in particular in areas of government overreach. Right. So you have the Bittner case, which dealt with the degree to which the government can go after people who don’t report foreign accounts. Right. I think in that case, it was somebody who was being fined over $2 million for not reporting individual bank accounts over the course of each year. And Justice Gorsuch writes the majority opinion and then the two of them together and only the two of them go a little further and talk about the rule of law entity and how even if this were an ambiguous case, they would give it. You know, it’s kind of like tie goes to the runaround baseball. It’s like ambiguity goes to the criminal defendant, right, when it comes to criminal statutes. And that’s that’s, you know, due process limits that they’re setting. And there were other cases as well where they came together and said, hey, a couple of them were actually two of them were decisions where the chief justice wrote the majority opinion and they wrote separately together to say, yeah, we know that’s the majority opinion. We agree with everything in it. But why I lower court? Yeah, the two of us agree on this. An additional principle that you ought to follow. So we saw that in the Tyler V Hennepin County case, which was the famous case, of course, where the state of Minnesota took a woman’s house for failing to pay $15,000 in taxes. State of Minnesota sells the house and pockets the extra 25 grand from the transaction. And the question is whether that’s a take. And the chief justice says, yes, of course it is. And they go on to say, yeah, we agree it was a taking, but there’s also this excessive fine clause of the Constitution, lower courts, and y’all better take that seriously, too. And I see that as another way of her together here with Justice Gorsuch exerting actual influence by saying the two of us agree on this, our colleagues, maybe they’re not ready to sign on and say this yet, but it’s meaningful when Justice Gorsuch and Justice Jackson agree on something.
Kate Shaw Yeah, And you think about how strategic Justice Thomas has been about doing exactly that, sending signals to the lower courts, the Fifth Circuit in particular. But other courts, too. And multiple justices can play that game. And I do think that it is very gratifying and important. To see them basically taking a page from that book and sending. But on the side of justice signals to the lower courts about how they should proceed.
Leah Litman So I just wanted to say like I totally agree. Like she displays this just preternatural emotional intelligence strategy and being able to find common ground with colleagues on issues like due process. And yet she somehow manages to do it in a way without throwing people or issues under the bus to give herself like unnecessary credibility and without declining to call attention to issues that need attention. So, for example, like even as she is working together with Justice Gorsuch and the other justices to craft these majority opinions or separate writings, you know, she wrote in this dissent from denial surgery. So a case that the Supreme Court didn’t hear in harness versus Mississippi, which was a challenge to Mississippi’s felony disenfranchisement program, you know, in their state constitution that was created after a state constitutional convention that was explicitly, you know, to uphold white supremacy and exclude black people. She wrote, quote, the other day, this court declared that the Constitution deals with substance, not shadows. And the constitutional prohibition against racial discrimination is leveled at the thing, not the name. And she quoted them and said, you know, look, there aren’t shadows here like this one is out in the open and you’re refusing to do anything about it. So her willingness to still speak truth to power while still being able to find common ground and be strategic is, I just think, super impressive.
Kate Shaw One other example, I think of her in that same category, which is being completely willing to go it alone when on principle she feels like it’s important and urgent was Glacier Northwest versus Teamsters, which was a case we talked about a lot in the run up to it, basically about whether a union should have to pay for harm or losses to an employer because of a strike. And that case, we thought, had the potential to really undermine the power of organized labor. The majority ended up ruling against the union and for the employer. But in this very narrow way that hewed pretty closely to the facts of this case, which involved concrete. But there was one justice without the majority of all of her colleagues were totally misguided, who dissented, who would have sided with the union. That, of course, was Justice Jackson. And she both was making this, I think, important institutional point that we actually haven’t really gotten into and she hasn’t had a chance to really develop. Although I think this coming term, we’re going to see a lot of it, which is the court in that case, she thought should not have decided the matter at all because there was a federal agency, the NLRB, which was in the course of investigating the very incident that was the basis for this dispute. So that, I think, was an important institutional point. But she also began her dissent by saying the right to strike is fundamental to American labor law. And I just thought that it was a clear marker that just in the same way that deep rooted hostility to unions and to worker power animates the Sam Alito of the court, she thinks the law contains important and powerful protections for the rights of workers and unions. And that, I think, is a perspective that she will bring to future labor cases. And it was striking to me that she was alone in that dissent.
Amir Ali I think this point is so important, and I think about it a lot in our own civil rights practice. And I think what it is I think I think what it is not right When we talk about how Justice Jackson operates and how she convinces other people rights opinions with Neil Gorsuch, it is not thinking about the outcome she wants and trying to figure out a way to get to that outcome. Right. Because if that were the case, then you end up with what Leia said. You buy into methodologies or things that are compromising. What this is, is a principled, values driven approach to the work she does, and that leads her to speak out alone when it’s necessary to speak out alone. But it also allows her to speak out with others on which, you know, with whom she might disagree with a lot of things and do it in a way that is consistent with her own principles and values and the way that she processes the law in these different circumstances. And I think that’s a really powerful thing to have in the court. And I think it connects to the reason she can ask these surgical hypotheticals in oral argument that people can’t help but respond to either by joining sides with her or finding some way to acknowledge it in their in their own opinions.
Melissa Murray Well, she really has a kind of confidence that I’m not sure that every new justice has when they are appointed to the court, certainly not in their freshman year. I mean, she was not cowed by any of this. I mean, I’ve said this before. She came out ready to slay. And, you know, she’s done that consistently all term, like she knows who she is, she knows what her principles are, and she’s happy to make alliances to advance those principles. But if. It’s just her. She’s perfectly happy to go it alone, as you’ve said. And that that is confidence.
Leah Litman So, Amir, thank you so much for joining us. We always appreciate hearing from you and are always rooting for all of the work you are doing at McArthur Justice Center. You are one of the very few people for when they have a case at the Supreme Court. We are actually not worried or scared. So thank you so much for joining us.
Amir Ali Thank you for having me. It’s always a pleasure to speak with you all.
Kate Shaw Before we go, a quick question. Do you suddenly feel a strong desire to fulfill your civic duty by serving on a jury in Georgia? If you do, you may want to grab a totally impartial juror T-shirt now available at the record store. If you happen to get put on the Trump trial jury, then so be it. It’s not like you really follow the news or anything, right? Head to crook incom forward slash store to shop. Strict Scrutiny as a crooked media production posted an executive produced by Leah Litman, Melissa Murray and me Kate Shaw, Produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez and Ari Schwartz and digital support from Amelia Montooth.