Jackson’s Supreme Court Confirmation: Cases You Need to Know

Republicans looking for fodder to question Ketanji Brown Jackson during her Supreme Court confirmation hearings will rely on her more than 500 rulings as a federal trial court judge since 2013 and two from her brief tenure on the U.S. Court of Appeals for the D.C. Circuit.

Jackson’s 2021 appellate court confirmation hearing provides hints to which rulings GOP members of the Senate Judiciary Committee are likely to focus on during two days of questioning. At least one issue from her years a public defender has also generated attention.

Here are the cases most likely to come up.

Presidential Immunity

Jackson’s highest-profile ruling came in a case related to the House Judiciary Committee investigation of Russian interference in the 2016 presidential election, Committee On Judiciary of U.S. House of Representatives v. McGahn. In 2019, President Donald Trump directed former White House Counsel Don McGahn to defy a congressional subpoena based on presidential immunity.

Sitting as a U.S. District judge in D.C., Jackson’s 100-plus page ruling directed McGahn to testify over the president’s objection. It used strong language in rejecting the argument that senior-level aides are the “alter egos” of the president such that he can prevent them from even testifying before Congress—as opposed to refusing to reveal privileged information.

The “primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote, adding that this “means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

After some back and forth in the D.C. Circuit, the parties settled and McGahn eventually testified in 2021.

Jackson faced several questions from GOP senators during her D.C. Circuit confirmation, particularly as to the length and language in her opinion.

Collective Bargaining

One of the two majority opinions Jackson has written for the D.C. Circuit is expected to be invoked by Republicans looking to argue that she was part of the Trump “resistance” and friendly to labor unions and far-left groups.

In American Federation of Government Employees v. Federal Labor Relations Authority, Jackson wrote for a unanimous court in striking down a Trump-era rule to heighten bargaining requirements for public-sector workers.

The Federal Labor Relations Authority had attempted to change a longstanding requirement that collective bargaining take place for any workplace change that had more than a “de minimis effect” on working conditions. The new rule required bargaining only when the change would have a substantial impact.

Jackson and two other Democratic-appointed colleagues said the FLRA had failed to adequately explain its reason for the change.

Republicans could also note that in 2018, Jackson as a district judge blocked three other Trump administration executive orders limiting protections for the federal workplace. Those rulings were overturned by a unanimous D.C. Circuit on technical grounds.

Jackson had a 2% reversal rate as a district judge, which was low for the D.C. Circuit.

“I’m not paying attention to who is in the administration when I am ruling,” Jackson said during her D.C. Circuit confirmation hearing.

Jackson was appointed by Barack Obama to the district court and Joe Biden to the circuit bench.

Immigration Policies

Another reversal by the D.C. Circuit likely to be invoked by Republicans involves an immigration case,Make the Road New York v. McAleenan.

Jackson prevented the Trump administration from enforcing its rule that expanded the categories of people who could be subjected to expedited removal procedures.

In reversing Jackson, the D.C. Circuit said the executive branch was granted broad authority over such decisions and didn’t have to jump through the same kinds of hoops necessary for other administrative changes.

Democrats are likely to counter with Center for Biological Diversity v. McAleenan, in which Jackson rejected challenges by environmental groups to the Trump administration’s waiver of certain environmental laws to build parts of his border wall, a centerpiece of his immigration policy.

Gitmo Representation

Outside of her judicial experience, Republicans are likely to press Jackson on her post 9/11 representation of detainees at the U.S. naval base in Guantanamo Bay, Cuba.

As an assistant federal public defender in Washington from 2005 to 2007, Jackson represented Khiali Gul in challenging his status as an “enemy combatant.”

Later in private practice, she worked on friend-of-the-court briefs in Supreme Court cases in support of detainee claims, including ones filed on behalf of former judges and another from the libertarian Cato Institute. One was in the landmark 2008 Boumediene v. Bush case, in which the justices found terror suspects held at Guantanamo could challenge their detention.