The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Shortly after Justice Breyer announced his retirement, I suggested that President Biden should pick a new "Roberts whisperer"—a jurist willing to work hand-in-hand with their colleagues to temper the court's conservatism. Perversely for Biden, a more-liberal nominee will make the court more conservative. A more middle-of-the-road justice can keep the court closer to the center.
Will Justice Jackson be that bridge-builder?
Justice Leandra Kruger's surrogates suggested to David Lat that Justice Jackson could not fill that role:
If this were a 5-4 Court in favor of liberals, Judge Jackson would be a fine choice. She would be a powerful voice on the left—à la Justice Sonia Sotomayor, whom many progressives regard as "the conscience of the Court"—and by staking out the far left, she might tug the entire Court leftward and make the other liberals look more moderate.
But we don't have a 6-3 or even 5-4 Court in favor of the liberals. Instead, we have a 6-3 Court dominated by conservatives. And this calls for an entirely different type of justice, with an entirely different ideological bent.
When you're in the minority to that degree, you don't want an ideological bomb-thrower; you want a bridge-builder. You don't want a hard-core liberal or progressive; she doesn't have the votes to advance her views anyway, and her left-wing views might just alienate her more conservative colleagues.
Instead, you want a judge who understands conservatives and has respect from conservatives. You want a judge who can occasionally persuade a conservative or two to join a moderate or even liberal position, through the strength of her reasoning, the power of her writing, and the charm of her personality. Based on her track record at the California Supreme Court, where she has demonstrated her talent for building consensus and coalitions, Justice Kruger is the one that you want.6
You want a judge who understands the subtle strategic aspects of serving on a sizable appellate court. On occasion, and especially when the court is dominated by the other side, this might require "damage control"—e.g., cobbling together a narrow majority for a position that you don't love, but one that's better than the alternative. This is also something that Justice Kruger understands, since for the first five years of her seven years on the California Supreme Court, Republican appointees outnumbered Democratic ones, 4-3.
Is it possible that Judge Jackson and Judge Childs might excel at this as well? Sure. But Justice Kruger has already demonstrated this ability—you don't need to speculate—and she has far more experience and practice at it. Serving on a seven-member appellate court of last resort, where her side has been outnumbered for most of her tenure, has allowed Justice Kruger to develop the precise skill set she would need at SCOTUS in the year 2022.
Judge Jackson, who has been an appellate judge for less than a year, and Judge Childs, who has never been an appellate judge, haven't had the opportunity to develop these skills in the same way. And the Supreme Court—at least for a liberal justice at this critical point in our nation's history, with abortion, gun control, and affirmative action on the line—is no place for learning on the job.
Justice Breyer was adept at getting the Chief Justice to moderate. What about Justice Jackson?
To get the Volokh Conspiracy Daily e-mail, please sign up here.