Justice Jackson Didn’t Win Often, But What She Said Mattered

As the first Black woman to sit on the highest court in the land, courtwatchers expected Justice Ketanji Brown Jackson to bring a different voice to the court. But few predicted that during her first term she would so skillfully deploy strategic and adaptive approaches, making the most of her role in the minority liberal wing of the court.

Jackson ably moved from highly technical questions to big picture concepts, from focusing on history and speaking the language of the formalist conservatives, to talking frankly about the impact of Supreme Court decisions, especially on traditionally disadvantaged minorities.

In one case early in the term, she used the Socratic method to lead the advocate away from a weak point. Listening superficially to Jackson in Andy Warhol Foundation for the Vistual Arts v. Goldsmith, a case about a magazine using a copyrighted photograph of the musician Prince without a license, one might think Jackson was meek. She said repeatedly, “I don’t understand,” and “I’m not an expert.”

But Jackson is no retiring flower. She used this language rhetorically, almost sarcastically, to imply the argument made no sense.

In one instance, she said she wasn’t understanding because “I thought there was something in the legislative history that I may have read ... Does that sound familiar to you?”

When the advocate answered, “No,” Jackson retorted, “No? Okay. Maybe I made that up.”

It was quite clear from her tone she wasn’t conceding the point. Sure enough, the advocate backtracked.

Jackson was direct and forceful when required. In 303 Creative v. Elenis, a case about whether a state prohibiting discrimination against gay couples is a violation of free speech, Jackson came up with a powerful hypothetical that illustrated the problem with the free speech argument.

If a business refusing to make a website celebrating a gay marriage is fundamental to free speech, Jackson asked, how this could be differentiated from a business that creates nostalgic, sepia-colored “Scenes with Santa” photos, and the owners believe it would be inauthentic to take such a photograph of Black, Hispanic, or Asian children sitting on Santa’s lap?

Justice Samuel Alito bristled at the comparison between race-based discrimination and refusing to serve gay couples, and the advocate dodged the question. But Jackson persisted, repeating her question that cut to the heart of the constitutional problem with the argument.

Jackson came across as confident and was not easily talked over by her colleagues or the advocates. In contrast, in Justice Brett Kavanaugh’s first term on the court, he often stumbled and was interrupted more than any other justice—it was the first time that a man was interrupted more than Justice Sonia Sotomayor has been during her tenure.

In Health and Hospital Corp. of Marion County v. Talevski, Jackson’s strategic side was on display. That case concerned whether a nursing home that receives state funding could “chemically restrain” a patient for the convenience of the nursing home, not for medical needs.

That question could be answered narrowly or broadly. Advocates for the state of Indiana and the nursing home argued, on the narrow side, that under the Federal Nursing Home statute, there’s no mechanism to sue for such violations. Indiana’s broader argument was that 42 U.S. § 1983—the most central mechanism of vindicating individual rights against states and state actors—doesn’t apply when the federal government provides money to those bodies.

Jackson once again asked the toughest, most incisive question showing the problem with the broader argument. She pointed out that §1983 was actually part of the Ku Klux Klan Act.

Congress had acted because the states were “not giving a cause of action to people who were being terrorized ... Congress created the right in order to allow people to go to court.” How then can it make sense to say that we should restrict interpretation of § 1983 to situations that were already protected under the common law? That would have massive implications, narrowing the right to sue in many different areas, to only those wronged in a way that was recognized back in 1871, when §1983 was passed.

But Jackson was more open to the narrow argument, suggesting that perhaps residents of nursing homes weren’t given the sort of individual administrative rights that §1983 generally provides. Jackson was unlikely to be making this argument because she was unsympathetic to an elderly patient who was being drugged, against the advice of his neurologist.

Rather, at a time where progressive values are under threat by a very conservative court, it seemed Jackson was looking for a way to protect the most important principles for liberals—here, preserving rights under §1983—even if it meant sacrificing some other values. In the end, Jackson wrote the majority opinion in the case, finding the nursing home resident had a claim under §1983.

She stood firm on those core principles. In Merrill v. Milligan (decided as Allen v. Milligan), a case challenging Alabama’s reduction of majority-minority districts, Jackson made a powerful historical argument. Alabama argued that the Fourteenth and Fifteenth Amendments, by prohibiting denial of equal protection or the right to vote on account of race, prohibit any consideration of race, even to overcome racial gerrymandering.

Jackson responded that the Framers’ intent in passing those amendments was an explicitly race-conscious goal: “trying to ensure that people who had been discriminated against ... were actually brought equal to everyone else in society.”

Discussion of the Framers’ intent is typically associated with conservative justices, but Jackson was able to use that technique against a conservative argument, a position that was eventually triumphant.

In many of these cases, Jackson’s arguments didn’t win the day. But in Allen v. Milligan, Jackson’s argument won, and in Health and Hospital Co v. Talevski, Jackson wrote the 7:2 opinion of the court, rejecting both the narrow and broad argument against providing a remedy to the elderly patient.

With such a conservative court, Jackson is unlikely to prevail most of the time. But her insightful questions matter.

Sometimes, those questions make some of the advocates and the other justices uncomfortable, because she reveals the flaws and the hypocrisy in their arguments.

For now, those revelations—whether they change a few minds in a case today or shift a paradigm years down the road—will have to be enough.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.