Justice Jackson Takes Unexpected Positions in Criminal Cases

Supreme Court Justice Ketanji Brown Jackson surprised defense attorneys with her recent votes against criminal defendants, particularly given her background as a former federal defender.

Jackson broke ranks with her liberal colleagues in two cases decided in the closing weeks of the term. She joined the majority in a case broadening expert witness testimony and dissented in another that fortified the right to a jury trial.

President Joe Biden touted Jackson’s unique experience when nominating her to the high court in 2022, noting her public defender background in addition to her tenure as a federal trial and appellate judge.

It’s “certainly disappointing to have the first former public defender on the Supreme Court take those positions,” said Kaplan Hecker & Fink partner David Patton.

But the former head of the Federal Defender office in New York City also cautioned against expecting former public defenders to always rule for defendants.

“Public defender views are, of course, not monolithic,” Patton said. “Justice Jackson is surely calling it like she sees it even when it’s deeply disappointing to advocates for the accused.”

Expert Evidence

Both of Jackson’s votes came in technical cases about how defendants are convicted or sentenced. And both of her separate decisions focused on the real-world implications of the court’s rulings for criminal defendants.

In Diaz v. United States, a 6-3 court sided with prosecutors on the kinds of evidence that expert witnesses can testify to. While federal evidentiary rules prohibit experts from testifying what a particular defendant’s state of mind was at the time they committed the offense, they could testify as to what most defendants know, the court said.

Jackson signed onto Justice Clarence Thomas’ majority opinion, but also wrote separately to say that she thought the rule would be broadly beneficial.

The type of evidence that the court permitted “can prove essential not only for prosecutors, but for defendants as well,” Jackson wrote in her concurring opinion.

Texas Tech University law professor Brandon Beck described Jackson’s vote as a “disappointment.”

The former assistant federal defender in the Dallas-based Northern District of Texas said it’s easy to see how the government will now be able to use an expert to eviscerate certain defenses.

“To allow an expert to talk about knowledge generally is very detrimental to deciding a case as to a particular defendant,” Beck said.

Trial by Jury

Jackson also pointed to the purported benefits for criminal defendants in dissenting from the court’s decision in Erlinger v. United States.

In another 6-3 ruling, the court backed a broad application of its landmark 2000 Apprendi v. New Jersey, which requires juries, not judges, to decide certain facts that can increase a defendant’s sentence.

Not only did Jackson dissent from the court’s reading of Apprendi, but she wrote separately to say that she thought the 2000 case was wrongly decided.

The ruling limited the role that legislatures can play in setting criminal sentences, including schemes intended to make sentencing more fair, Jackson said.

“So, while the defense bar might like Apprendi because its rule can benefit individual defendants in certain cases, that rule might also be inhibiting our collective achievement of a fairer sentencing system more broadly,” Jackson wrote.

Patton said Jackson’s vote in Erlinger was “particularly striking” because “she calls for overturning one of the most important cases of the past several decades providing for jury trial rights under the Sixth Amendment.”

Moreover, he thinks Jackson is wrong to suggest that these votes will actually help criminal defendants in the end. Both cases “could prove to be very damaging to the rights of the accused,” Patton said.

Beck, though, noted that Apprendi has “always depended on a weird coalition that disrupted liberal-conservative labels.”

The decision split the court’s then-conservatives and liberals in the same way it seems to be doing so today, Beck said.

Stephen Breyer, who Jackson replaced on the Supreme Court, wrote a dissent in Apprendi that similarly criticized the limits placed on legislatures and judges. Jackson clerked for Breyer the term that Apprendi was decided.

Regardless of those arguments, Beck said that anyone who has practiced federal criminal defense understands the vital importance of Apprendi.

“I would have thought that Jackson, of all people, would relate. I’m very disappointed she does not,” Beck said.

‘Liberal ideologues’

Devi Rao, of the MacArthur Justice Center, said criticism of Jackson shows how the legal world unfairly considers prosecutors as “neutral straight shooters” and public defenders as “liberal ideologues.”

Rao, who heads MacArthur’s Supreme Court and Appellate Program, noted that liberal Justice Sonia Sotomayor was a prosecutor before she joined the court, but no one expected her to vote with the government 100% of the time.

In her time on the Supreme Court, Sotomayor has been one of the most reliable votes for defendants in criminal cases. “So why do we think Justice Jackson is going to be reflexively pro-criminal defendant?” Rao asked.

Instead, Jackson is bringing her entire background and career experiences to bear on how she thinks about a particular case, Rao said.

In addition to working as a public defender and as an appellate judge, Jackson served for years on the US District Court for the District of Columbia and as a member of the US Sentencing Commission, which sets sentencing policy and practices for federal courts.

“It makes sense that given all these experiences, she’s attentive to administrability and how these rules play out on the ground,” Rao said. “Her writings in Diaz and Erlinger both bear that out.”