WASHINGTON — President Joe Biden’s Supreme Court pick Judge Ketanji Brown Jackson has a lengthy track record of decisions on major topics from her nine years on the bench, from presidential power to immigration and conspiracy theories.
Jackson was only confirmed to the US Court of Appeals for the DC Circuit last year, meaning she’s had little time to publish precedent-setting opinions. But in her longer tenure on the federal district court bench in Washington — she was confirmed in 2010 — she had plenty of opportunities to rule in high-profile and politically consequential cases.
Here are some of the big cases and key issues that could get a close look as her confirmation proceedings unfold in the US Senate:
Abortion
The scope of a person’s right to an abortion has been a flashpoint for recent Supreme Court nominations, but Jackson has never ruled in a case that dealt squarely with the issue.
Her previous promotion, from district court judge to the US Court of Appeals for the DC Circuit, earned praise from liberal advocacy groups, including NARAL Pro-Choice America. Asked during those confirmation proceedings last year if she believed Roe v. Wade was correctly decided, Jackson declined to answer, explaining it would be “inappropriate” since all Supreme Court decisions were binding on her as a lower court judge. It’s a question that’s sure to come up again now that she’s nominated for the high court. There’s a case pending before the justices that could dramatically upend the nationwide landscape of abortion rights by the end of this term, but its unlikely to end the fight altogether.
Congressional investigations
One of Jackson’s most famous decisions came in late 2019, when she concluded that then-president Donald Trump’s first White House counsel Don McGahn could not claim absolute immunity against a congressional subpoena to testify in the Russia investigation. McGahn had played a star role in special counsel Robert Mueller’s report. Once Mueller’s office finished its work without bringing charges against Trump, Democrats in Congress wanted to pick up the thread with McGahn. Backed by the Justice Department under Trump, McGahn argued that current and former senior advisers to the president enjoyed absolute immunity against congressional subpoenas, that the president had the final word on when to assert that immunity, and that courts lacked authority to intervene.
Jackson rejected all of the DOJ’s positions. Her opinion was stacked with sweeping declarations about how every person, including the president, ultimately is bound by the law. McGahn could refuse to answer certain questions on executive privilege grounds, but he had to show up, she found.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote.
She continued later: “...compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires.”
The case ping-ponged around the DC Circuit for the next year and a half on the question of whether the court had authority to hear it. The first time it went up on appeal, a three-judge panel ruled 2-1 to dismiss the case, but then the full court sided with Jackson and ruled it could go forward. The Trump administration raised a second challenge on different grounds, and the DC Circuit again ruled 2-1 to toss it out. Before the full court could weigh in again, McGahn reached an agreement to testify, ending the legal fight.
In her brief time as a DC Circuit judge, Jackson has had a chance to weigh in on the latest round of fights over congressional demands for information related to Trump. In December, she was part of a three-judge panel that unanimously rejected Trump’s last-ditch effort to stop the special committee investigating the Jan. 6 insurrection from getting certain archived White House records.
Conspiracies
Years before thousands of Trump supporters stormed the US Capitol — a mob that included followers of the QAnon collective delusion — there was Pizzagate. Spurred by baseless conspiracy theories that Democratic officials and political operatives were involved in a child sex trafficking network with a connection to DC restaurant Comet Ping Pong, Edgar Maddison Welch traveled to DC from his home in North Carolina and entered the pizzeria with two loaded firearms. Welch searched the restaurant as patrons fled; he claimed he was looking for kidnapped children. No one was injured, but he fired an assault rifle to try to break the lock of a door and pointed the gun at an employee. He was immediately taken into custody.
Welch reached a plea deal and appeared before Jackson in June 2017. She sentenced him to four years in prison, which was more than the 18 months Welch’s lawyer argued for and slightly below the 4.5 years the government wanted. Jackson said she believed Welch thought he was doing the right thing by going into the restaurant, but that didn’t excuse him from following the law — “acting violently even for good causes is not okay,” she said. She spoke about grappling with how to craft a sentence that would send a message and stop other people who were consuming the same information online that inspired Welch.
“The fear is now that, even though no one was physically harmed in this case, other people who are worried about other issues will take up arms with the intent of sacrificing lives in order to achieve what they believe is a just result. And as I'm sure you know, that kind of system of justice is utterly incompatible with our constitutional scheme and with the rule of law,” Jackson said. “That risk now looms large and is substantial in the context of this case.”
Welch’s case did not end the conspiracy theories that motivated him, instead morphing into an integral part of the QAnon delusions.
Immigration
When a coalition of immigrant rights group’s challenged the Trump administration’s plan to expand the category of undocumented immigrants eligible for fast-track deportations, the case landed before Jackson. In September 2019, she issued a preliminary injunction blocking the changes. Jackson found that the challengers were likely to succeed in arguing that the Department of Homeland Security had rushed to adopt the policy in violation of the Administrative Procedure Act, which requires agencies to take “into account all of the facts and circumstances that are relevant to their consequential policy determinations.” Specifically, Jackson found that DHS had failed to explore existing problems with the expedited removal process as well as the effect expanding it would have on “settled” communities.
The DC Circuit later reversed Jackson’s injunction, disagreeing with her that the DHS secretary’s decision to expand fast-track deportations was the type of policy change that fell under the APA. But the circuit agreed with Jackson that the court could hear the case in the first place, and also found that she was on firm legal ground in blocking the policy as a whole nationwide, versus only as it applied to the groups that sued. The Trump administration and conservative legal advocates criticized judges who entered nationwide injunctions halting his policies.
Jackson wrote at length in defense of the scope of her order, saying the government had “conjured up a strawman” in arguing that judges should limit the reach of their decisions after finding that an agency’s actions were “fatally flawed.”
“If this Court’s Order preliminarily prohibiting DHS from enforcing the expedited removal policy … reverberates nationally, that is simply and solely because DHS previously decided to apply its potentially defective rule nationwide,” she wrote.
Also in September 2019, Jackson gave the Trump administration a win in a different fight over its immigration policies. She dismissed a challenge brought by environmental groups to the DHS secretary’s decision to waive certain environmental protection laws in order to speed up construction of barriers along the US–Mexico border. Jackson found that Congress had barred most legal challenges to these types of waivers and also that arguments contesting the constitutionality of the secretary’s waiver power fell short.
In October 2020, Jackson sided with immigrant advocacy groups who sued the Trump administration over a lesson plan used to train federal immigration officers who screen potential asylum seekers slated for fast-track deportations. The challengers argued the language adopted in 2019 wrongly raised the bar too high for the initial round of vetting to see if a person had shown a “credible fear” of persecution in their home country. Jackson agreed. The Justice Department decided not to pursue an appeal.
Labor
Labor groups — longtime allies of Biden — were vocal about wanting a nominee with a record of backing workers’ rights. Jackson’s first written opinion as a DC Circuit judge was a win for federal employees. In a 3-0 decision earlier this month, the court struck down a 2020 policy change by the Federal Labor Relations Authority that narrowed the circumstances when agencies were required to engage in collective bargaining before making changes to work conditions.
Before the new policy, agencies had to bargain unless the changes would have a “de minimis,” or minimal, effect. The new policy stated that agencies didn’t have to bargain unless a change would have a “substantial impact.” Public sector unions argued this created a new class of management decisions falling between “de minimis” and “substantial” that employers would no longer have to bargain over. Jackson wrote that the policy change failed because it wasn’t “sufficiently reasoned.”
As a district court judge, Jackson presided over a set of challenges by federal labor unions to three executive orders issued by Trump that gave agencies new directives about how they should handle collective bargaining. Jackson in August 2018 rejected the administration’s argument that the court lacked jurisdiction over the case and ruled that the bulk of the challenged orders violated federal law. No presidential order could “operate to eviscerate the right to bargain collectively,” she wrote, and Trump’s orders had that “cumulative effect.” The DC Circuit later reversed her on the front-end jurisdiction issue and dismissed the case.