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August 04, 2023

Justice Jackson: Report card from Supreme Court scholars

In her first year on the bench, U.S. Supreme Court Justice Ketanji Brown Jackson has not been reluctant to offer strong dissents and has advocated a legal concept known as “progressive originalism,” drawing upon a legal doctrine touted by conservatives but directed by her to a different era of American history.

To three legal scholars who participated in an Aug. 3 panel assessing the Supreme Court during the past term at the 2023 American Bar Association Annual Meeting in Denver, Jackson’s presence has been a welcomed addition. The program, “The Roberts Court 2022-2023: College Admissions, Student Loans, and the Election Clause,” reviewed the past term and some of its key decisions.

But much attention was focused on Jackson, nominated by President Joe Biden last year and confirmed by the Senate by a vote of 53-47 in April 2022. She took her position on the court last summer following the end of the 2021-2022 term.

Jackson, observed Stanford University law professor Pamela Karlan, “added a very different and new voice to the court.” A former Department of Justice official who is co-director of the school’s Supreme Court Litigation Clinic, Karlan added Jackson was “aggressive in questioning” and pushed “progressive originalism” in her questions during oral argument and her opinions and dissents.

While the court’s more conservative wing has pushed originalism — meaning interpretation of the law should follow the intent of the framers of the U.S. Constitution — Jackson has employed progressive originalism during the past term. In short, she has reasoned that the 14th Amendment was intended by its framers to be race-conscious instead of race-neutral, and argued that, in the post-Civil War reconstruction era, the amendment was drafted for the purpose of ensuring the freedom of people who had been discriminated against.

Its relevance today showed up in several Supreme Court decisions during the 2022-2023 term, such as the race-based college admissions case and the Alabama voting rights or redistricting case. Its importance might be to provide those justices identifiable as part of the liberal wing of the court and future judicial nominees to adapt the concept of originalism to a period in which an amendment was enacted, such as the post-Civil War era. In 1868, for instance, the 14th Amendment was ratified granting to all persons “born or naturalized in the United States,” including formerly enslaved people, equal protection under law.

Vikram D. Amar, dean of the University of Illinois College of Law, also said he was impressed by Jackson in her first term on the court. “Progressive originalism,” he said, has the potential of “more openly keeping the originalist conservatives honest.” But Jackson, he added, was a bit unpredictable, as she joined the conservative bloc “in some odd cases.”

Aaron Tang, professor at UC Davis School of Law, concurred. He also pointed to the race-based admissions case involving Harvard University and the University of North Carolina as one of the most significant of the past term. The justices struck down race-based admissions in a decision that could affect other affirmative action programs outside of education.

Tang predicted schools will take up Chief Justice John Robert’s invitation to allow race to be discussed in the admissions beyond checking a box to identify racial or ethnic background. He explained that schools might have a yes/no question: Has race affected your life? If an applicant checks yes, he said, then the next question might be to explain how.

The panel, which has become a mainstay of the ABA Annual Meeting, touched upon several major Supreme Court decisions during the past term. Karlan observed that throughout the term Roberts was attempting “to reestablish the institutional value of the   court” which has found its public confidence waning in the past year, particularly since the leak of the Dobbs decision in spring 2022.

Karlan said that Justice Elena Kagen also has emerged as an institutionalist during the past several terms while Justices Samuel Alito and Clarence Thomas were “much more focused on results.”