LDF is committed both to ensuring that the federal judiciary reflects the diversity of this nation and to protecting the central role the courts play in the enforcement of civil rights laws and the Constitution’s guarantee of equal protection. The addition of a justice to the Supreme Court can change its balance and dynamic, and each nomination is extraordinarily important for the future of our democracy.
Following her nomination, LDF released a report evaluating the record of United States Supreme Court nominee Judge Ketanji Brown Jackson, in keeping with our longstanding tradition of outlining the background, judicial philosophy, and judicial record of Supreme Court nominees, with a focus on the nominee’s record on civil rights and racial justice issues.
Based on our extensive review of her decades of experience as a respected lawyer and judge with a diverse set of professional experiences, LDF supports the confirmation of Judge Jackson to the Supreme Court. Her work as a public defender and in private practice, service on the United States Sentencing Commission, and tenure as a federal judge, make clear that Judge Jackson has the range of legal experience, demonstrated professional excellence, and commitment to fundamental fairness required of the next Supreme Court justice. If confirmed, Judge Jackson would be the first Black woman to sit on the Court in its over 200-year history.
LDF’s report provides an issue-by-issue analysis of Judge Jackson’s record in the substantive areas at the core of LDF’s work where Judge Jackson has an extensive judicial record or where her prior work provides insight, including access to justice, criminal justice, and employment discrimination.
During her tenure as a district court judge, Judge Jackson was measured both in her approach to judicial intervention and her interpretation of the scope of her authority to hear plaintiffs’ claims. She often acknowledged the hardships that drove plaintiffs to seek relief in court even when she thought she was required to dismiss their claims, and she resisted interpretations of procedural standards that would impose unfair burdens on plaintiffs seeking relief. Though Judge Jackson’s record in this area has been subject to scrutiny, overall, her commitment to ensuring access to the courts is apparent throughout her judicial writings.
Judge Jackson’s administrative law record demonstrates an inclination toward deference to administrative expertise that is tempered by close attention to whether agency decisionmakers have followed proper procedures and adhered to congressional intent.
On issues related to economic justice, Judge Jackson’s record is consistent with her overall moderate judicial outlook. Significant rulings on collective bargaining and other workplace protections demonstrate an appreciation of the powerful role that the judiciary plays in safeguarding workers’ rights. And to ensure that individuals fighting discrimination in the workplace may fairly present their claims, Judge Jackson has repeatedly cautioned against dismissing employment discrimination claims in the early stages, stressing the need for discovery and the importance of ensuring that pro se litigants have an opportunity to vindicate their rights. However, in some cases, Judge Jackson has imposed an artificially high bar for proving employment discrimination and created undue obstacles based on restrictive readings of procedural requirements and deferential treatment of government defendants.
As demonstrated most clearly by her compassionate release decisions during the pandemic, Judge Jackson recognizes the humanity of incarcerated people. And as a former appellate public defender, Judge Jackson has spoken about the critical need for robust public defense systems to ensure just, fair, and reliable outcomes. Judge Jackson’s service on the United States Sentencing Commission indicates a thorough understanding of what criminal statutes and the Federal Sentencing Guidelines require, and permit, judges to do. On the other hand, in our judgment, some of Judge Jackson’s qualified immunity decisions suggest undue deference to law enforcement officers alleged to have violated individuals’ constitutional rights.
Judge Jackson has not ruled on many cases involving race-conscious policies; however, she has recognized that the government has a compelling interest in remedying race-based discrimination in accordance with existing Supreme Court precedent.
A crucial but sometimes overlooked part of the Supreme Court’s docket involves access to justice—that is, the initial question of whether a court will even hear a plaintiff’s claim. This question—whether a plaintiff will have their day in Court—is profoundly important in the civil rights context and cuts across a wide range of statutes and issue areas. Without access to courts and judicial remedies, fundamental rights cannot be vindicated and are rendered meaningless.
Claimants can be denied access to the courts by a variety of means, including motions to dismiss and motions for summary judgment before cases go to a jury; procedural bars, such as the requirement to exhaust all claims in an administrative forum before proceeding to Court; restrictions on the use of class actions that prevent plaintiffs from challenging systemic civil rights violations; arbitration clauses that divert claims from courts into private, confidential proceedings; and challenges to a litigant’s standing to bring suit. Many of these issues involve the application of subjective standards—whether a claim is “plausible,” for example—and so the views and perspectives of the judges who decide them inevitably come into play.
In addressing a federal court’s baseline ability to hear plaintiffs’ claims, Judge Jackson’s rulings show a consistent thread of emphasis on judicial restraint, balanced with recurring awareness of the impacts of procedural barriers to access to federal courts. Overall, Judge Jackson’s access to justice decisions reveal a judicial philosophy that recognizes the value and importance of access to the courts and demonstrate her willingness to allow plaintiffs who adequately plead actual injury to proceed with prosecuting their claims. However, she also is careful to assess each case individually rather than impose a blanket approach, resulting in decisions that often, but not always, permit access to the courts.
Administrative agencies play a key role in achieving the goals set forth in congressionally enacted legislation. Congress regularly calls upon agencies to apply their substantive expertise on a broad range of critical topics—including education, environmental protection, worker safety, consumer protection, and public health—in order to implement broad statutory principles and policies. Agency guidance is also crucial to the full enforcement of many civil rights statutes, including Title IX, the Fair Housing Act, and the Americans with Disabilities Act, among others. In our complex society, it would be impossible to implement congressional mandates with fidelity in the absence of agency expertise. Despite this reality, several members of the Supreme Court have expressed hostility to administrative decision-making. As such, recognition of the value of agency expertise is an important asset for any new justice on the Court.
Judge Jackson would bring to the Supreme Court a balanced perspective on the role of agencies within our system of government. Her judicial record reflects some deference to administrative decision-making tempered by a consistent unwillingness to allow agencies to avoid reasonable judicial review.
LDF has long advocated for a fair and unbiased criminal legal system, as well as accountability for law enforcement who engage in abusive and unconstitutional conduct. And we continue to advocate for a system that acknowledges the humanity of every person regardless of their alleged or actual crimes.
As demonstrated by her compassionate release decisions during the pandemic, her work as an Assistant Federal Public Defender, on the Sentencing Commission, and in private practice, and her writings over the years, Judge Jackson recognizes the humanity of incarcerated people. Judge Jackson’s decisions on sentencing and qualified immunity, a court-created doctrine that shields law enforcement and other public officials from being held civilly liable for constitutional violations, are more mixed.
LDF’s review includes representative decisions from Judge Jackson’s eight years as a district court judge as well as excerpts from her non-judicial experience and writings. Her criminal justice record as a D.C. Circuit judge is too limited to provide meaningful insight. Our criminal justice analysis covers the following categories: Sentencing and Treatment of Incarcerated People; Policing; and Capital Punishment.
Judge Jackson has approached sentencing (and resentencing) decisions holistically, recognizing that retribution is one of only several factors to consider in fashioning the appropriate sentence. In this context, Judge Jackson’s service on the United States Sentencing Commission is apparent—she has a thorough understanding of what criminal statutes and the Federal Sentencing Guidelines require and permit judges to do. Judge Jackson’s non-judicial experience and writings also confirm a commitment to fairness and a recognition of the humanity of people who come into the criminal legal system’s orbit.
LDF has a longstanding concern about the propriety of the doctrine of qualified immunity, which is a court-created doctrine that regularly denies redress to deserving civil rights plaintiffs and insulates government officials from the consequences of their unconstitutional behavior.
Judge Jackson’s approach to applying qualified immunity has in some cases been inconsistent with what LDF believes both the evolving standards of the law and justice command. Although she has correctly acknowledged that a plaintiff need not identify a prior case with identical facts to demonstrate that an officer’s actions are prohibited by clearly established law, Judge Jackson has granted qualified immunity to law enforcement where the application of general legal principles arguably should have led to a denial of qualified immunity under evolving legal standards. In some of those cases, Judge Jackson’s assessment of the facts indicated that she favored the defendants’ more stringent reading of the doctrine. Nevertheless, unlike many judges, she does not apply the doctrine reflexively.
Some of the decisions made by Judge Jackson concerning qualified immunity concern us. We look forward to learning more about Judge Jackson’s views on the evolution of the doctrine of qualified immunity; and, moving forward, we hope that the Supreme Court will recognize the need for qualified immunity jurisprudence to evolve, such that it does not undermine accountability for government officials in cases of serious constitutions violations
Since its founding, LDF has played a prominent role in challenging the constitutionality of the death penalty and its discriminatory application against African Americans. A candidate’s record with regard to capital punishment has been of central importance in our assessment of their nomination. Although Judge Jackson has not been called upon to issue a judicial decision in any capital case, her tenure as an appellate defender and her public remarks inspire confidence that she would recognize that “death is different,” and carefully assess whether the adjudicatory process was fair, rational, and reliable. A critical part of that determination is whether people on death row have received the effective assistance of counsel as required by the Sixth and Fourteenth Amendments to the United States Constitution.
Confirming a justice who believes deeply in the right to effective representation is essential to reviewing the legitimacy of capital convictions and death sentences, which disproportionately affect poor Black people who cannot afford to hire a lawyer. During her confirmation to the U.S. Court of Appeals, Judge Jackson wrote that having a robust public defense system “incentivizes the government to investigate accusations thoroughly and to protect the rights of the accused.” She explained that effective representation is critical because it “reduces the threat of arbitrary or unfounded deprivations of individual liberty.”
Judge Jackson has displayed moderation in ruling on economic justice-related issues. Overall, her record is consistent with her reputation as an evenhanded and meticulous jurist and demonstrates a deep understanding of the significance of the judiciary in determining the extent of workplace protections for employees. On more than one occasion, Judge Jackson has ruled in favor of employees attempting to exercise their rights under the National Labor Relations Act to organize and bargain collectively. She has also shown sympathy toward pro se litigants and expressed a preference for allowing employment cases to proceed to discovery, citing the importance of access to employers’ files to prove pretext.
In other cases, however, Judge Jackson has dismissed employees’ claims based on her perception of the high burden discrimination claims place on plaintiffs. Often, in these less favorable decisions, an apparent desire to closely follow procedural rules results in barriers to justice. Judge Jackson has come under pointed criticism by former litigants for her decision-making in some of these cases. At other times, and consistent with the judiciary’s essential role in vindicating the civil rights of employees, Judge Jackson has allowed litigants to proceed with employment discrimination claims despite procedural hurdles.
As a district court judge, Judge Jackson heard numerous claims from individual employees alleging discrimination under Title VII and Section 1981. Employment discrimination suits have long played an essential role in integrating the country and limiting workplace discrimination based on race, gender, national origin, and other protected characteristics. Indeed, employment discrimination cases account for a significant share of civil rights cases before the Supreme Court through both U.S. Equal Opportunity Employment Commission (“EEOC”) enforcement and suits between private parties. While these cases tend to be fact-intensive and highly individualized, the cases reviewed by LDF illustrate the tension between Judge Jackson’s commitment to ensuring access to justice and her at times overly restrictive readings of legal standards and procedural rules.
In sum, Judge Jackson’s record on economic justice cases is mixed. Judge Jackson’s record of permitting plaintiffs to proceed to discovery is cause for encouragement. But Judge Jackson has also imposed a high bar for proving employment discrimination and created obstacles based on restrictive readings of procedural requirements and deferential treatment of government defendants. The weight of these cases merits attention. While we do not agree with all critiques of Judge Jackson’s record in this area, we are nevertheless concerned by an approach that, at times, seems too rigid or that dismisses credible allegations and proof of troubling and discriminatory workplace conduct.
Since its 1978 decision in University of the Regents of California v. Bakke, the Supreme Court has consistently held that the Constitution permits race-conscious decision-making in order to promote diversity and to remedy specific instances of racial discrimination. As recently as 2016, the Supreme Court has upheld thoughtful race-conscious admissions programs against constitutional attack, and with good reason: Race-conscious policymaking remains a key tool for the achievement of meaningful racial equality. Yet, race-consciousness continues to face attacks from opponents who mischaracterize awareness of structural racial inequality as discriminatory. In the face of these attacks, the Supreme Court has shown an increasing willingness to roll back over forty years of clear precedent affirming the legality of race-conscious decision-making. Now more than ever, it is essential that new justices on the Supreme Court arrive with a clear understanding of the value and constitutionality of race consciousness.
While Judge Jackson has not had occasion to rule on many cases implicating race-conscious policies, when presented with the issue, she has recognized that remedying race-based discrimination is a compelling government interest and upheld race-conscious policies against constitutional attack.
Further, in her non-judicial public comments and writings, Judge Jackson has demonstrated sensitivity to the role of race in American society. She has also demonstrated a willingness to engage in data analysis to uncover the various ways that bias can permeate the criminal justice system—from arrest rates to prosecutorial decisions through the sentencing process. In addition, she has embraced her identity as a Black woman lawyer and the legacy of the Black women civil rights advocates who made her present life possible.
There is no question that Judge Jackson has the background and qualifications fitting of a Supreme Court justice. Her wide-ranging professional background and years of service as a federal judge have equipped her with the judgment and perspective to further the ideals of equal justice under the law and to give full meaning to our nation’s civil rights laws and have showcased her collegiality and ability to build consensus on important issues. A thorough review of Judge Jackson’s record, and specifically her judicial opinions, confirms that she has the judicial temperament to give all plaintiffs their full and fair day in Court, and her special attention to pro se litigants is particularly encouraging.
On balance, Judge Jackson has demonstrated an unwavering commitment to fundamental fairness for all that is sorely needed on the Court. For this reason, we support the confirmation of Judge Ketanji Brown Jackson to the Supreme Court without reservation.