A Jackson judge will have to embrace a new role: dissenting


Ketanji Brown Jackson would bring to the U.S. Supreme Court experience as varied as a Big Law attorney, public defender and federal judge, but the current court’s makeup may force her into a new role: dissenting.

Jackson spent years as a trial judge, which meant that for most of her judicial career, she worked alone and her opinions were always in the majority. During her short stint as an appellate judge for the United States Court of Appeals for the DC Circuit, she produced two written opinions and no dissents.

If confirmed as Justice Stephen Breyer’s successor, Jackson will join a court dominated by a 6-3 conservative majority flexing its muscles on issues ranging from abortion and guns to the future of the administrative state.

Being on the short side of so many important disputes if she mostly voted as expected with the progressive bloc wouldn’t make Jackson insignificant.

“Good hard-hitting dissent can make us think about the law in a different way and give us a path forward,” said civil rights lawyer Judith Browne Dianis, who directs the liberal nonprofit Advancement Project.

Justice Ruth Bader Ginsburg was appointed by Bill Clinton in part for her consensus on lower courts and eventually embraced her role in the minority. Some of his most notable writings were dissents.

Short and long term

Progressives are hoping Jackson smashes his way into the majority more often than expected.

Lambda Legal’s Camilla Taylor noted that her unique professional experience as a representative of indigent defendants and her personal experience as the only black woman on the court could change her mind and build consensus.

But University of Virginia professor Carl Tobias said Jackson likely has “clear eyes” on her place on the court if she joins him in October. It seems likely that she will write a number of dissents, he said.

Elliot Mincberg, senior fellow at the progressive People for the American Way, said dissent can matter in the short and long term.

In the short term, this can be important in the public framing of an issue. Particularly at a time when the court is increasingly viewed as political, Dianis said good dissent can serve as a conscience.

It can help remind “the court who they are and what they need to do”, she said.

And dissent can also spur congressional action, Mincberg said. He pointed to Ginsburg’s dissent in Ledbetter c. Goodyear Tire & Rubber Co., in which she called on Congress to extend the deadline for filing an equal pay lawsuit. Two years later, the Lilly Ledbetter Fair Pay Act was the first piece of legislation signed into law by Barack Obama.

In the longer term, dissent can be a marker of change. Taylor notes that “Throughout history there are dissents that paved the way for future majority opinions”.

The dissent of Judge John Marshall Harlan in 1896 in Plessy v. Ferguson finally became the law of the land in the landmark 1954 court decision in Brown v. Board of Educationwhich abolished the doctrine of separate but equal.

And 17 years after the court upheld Georgia’s laws criminalizing homosexuality, the court’s four dissidents were exonerated when it changed course to Lawrence v. Texasand struck down a substantially similar Texas law.

“Dissent becomes our view of the law,” Dianis said.

Coordinated dissents

It’s too early to tell in what areas Jackson might be called upon to write dissents for the all-female progressive wing, if she were seated. Her work and professional experience suggest she could be important in criminal law and race.

Tobias said her DC trial court experience as Obama’s nominee gave her a solid background in administrative law matters, ranging from challenges to agency actions to interprofessional disputes, particularly between Congress and the executive.

But where conservatives on the court have often written separately to say why they agree or disagree with a ruling, progressives have recently tended to coalesce around a single dissenting opinion.

Judge Elena Kagan, Mincberg said, has taken the lead in religious cases, Judge Sonia Sotomayor in criminal cases and Ginsburg previously in civil rights litigation.

Much hinges on the dynamics of the Democratic-nominated bloc, Mincberg said.


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