Predicting the Path of the New Justice

Ruth Marcus has this column in the WaPo (behind a paywall) on the impact of Judge Ketanji Brown Jackson on the Supreme Court. Ms. Marcus has covered the high court for many years.

In addition, justices, male or female, aren’t fungible. Even if they can be placed into broad categories of liberal or conservative, they bring different passions and different life experiences to the bench. Jackson’s experience as a criminal defense lawyer, member of the U.S. Sentencing Commission and trial court judge gives her a perspective different from that of her colleagues. It’s reasonable to imagine Jackson emerging as an ally of Justice Sonia Sotomayor, especially on criminal law issues, where Breyer and Justice Elena Kagan have been slightly more moderate. And, as I wrote the other day, she also could emerge as another powerful voice in dissent, joining Sotomayor and Kagan in a forcefulness and passion that Breyer didn’t always display.

While Jackson, assuming she is confirmed, will be in the history books as the first Black female justice, the more immediate significance of her arrival at the Supreme Court might be as the only serving justice — and the first in decades — with significant experience representing criminal defendants and grappling with the consequences of the criminal justice system on communities of color.

In plainer English, Marcus implies that Justice Jackson is likely to vote consistently for the defendant on any remotely debatable questions of criminal law, more so than Justice Breyer did and more like Justice Sotomayor does. And while “grappling with the consequences of the criminal justice system on communities of color,” will she grapple with the consequences of crime and our failure to control it on all communities, including and especially “communities of color”? I am not optimistic at this point, though I hope to learn more as the nomination process proceeds.

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