The Volokh Conspiracy

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Supreme Court

Justice Ketanji Brown Jackson (Updated)

News reports indicate President Biden has made his choice to replace Justice Stephen Breyer


Multiple news outlets are reporting that President Biden has decided to nominate Judge Ketanji Brown Jackson to replace Justice Stephen Breyer on the U.S. Supreme Court. Judge Jackson is currently a judge on the U.S. Court of Appeals for the D.C. Circuit and previously clerked for Justice Breyer. If confirmed, Judge Jackson will be the tenth Supreme Court justice to have previously clerked on the Court, and the third justice nominated to replace the justice for whom they clerked (the prior two being Chief Justice Roberts (Rehnquist) and Justice Kavanagh (Kennedy).

Nominating Judge Jackson fulfills President Biden's campaign pledge to nominate the first Black woman to the U.S. Supreme Court, and Justice Jackson is almost certain to join the progressive wing of the Court. There is also no question that Judge Jackson is qualified to serve on the Court. Her qualifications and experience compare favorably with many prior Supreme Court nominees. While she is not the sort of nominee that most Republicans would prefer, we do not have a Republican President, and elections have consequences.

Judge Jackson's nomination and confirmation would diversify the Court in more ways than one. She would be only the second justice currently sitting with experience as a trial court judge, and the only sitting justice to have worked as a public defender. She also served on the U.S. Sentencing Commission. In other respects, such as educational background, she would not diversify the Court at all. Like the Chief Justice and Justices Kagan, Gorsuch, and Breyer, Jackson attended Harvard Law School. (Four other justices—Alito, Kavanaugh, Thomas, Sotomayor—attended Yale.) Update: As Jamal Greene notes, some of Judge Jackson's educational background would help diversify the Court as "she would be one of only three justices on the Court to have attended a public (or non Catholic) high school, and one of only two, with Alito, to have attended a non-magnet public school."

Once Jackson is nominated, the confirmation process will kick into high gear, with all of its attendant jousting and theater. Her supporters will attempt to bullet-proof her from criticism, partisan opponents will try to paint her as outside of the mainstream, and White House attorneys will coach her to say little of import. Barring something truly unexpected, however, she will be confirmed, perhaps even with slim bipartisan support, and October Term 2022 will open with Justice Jackson on the Court.

Update: I blogged about (And was somewhat critical) of Judge Jackson's first published opinion as a judge on the D.C. Circuit in this post.

[Note: Revised to clarify that, if confirmed, Judge Jackson would be one of only two currently sitting justices to have served as a trial court judge.]