On April 7, 2022, the Senate confirmed the nomination of Judge Ketanji Brown Jackson to fill the next term’s vacancy on the bench with Justice Stephen Breyer’s upcoming retirement. In an often-contentious confirmation process that included questions lobbed from Republican senators on Judge Jackson’s position on child pornography, critical race theory, court-packing, transgender rights, and her role as a public defender for Guantanamo Bay detainees, Jackson was confirmed 53-47 with bipartisan support.  The affirmative votes included all 50 Democratic-voting senators and Republican Senators Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Utah. Senators Murkowski and Romney announced their support for Jackson as a procedural vote was taking place. While Jackson’s confirmation does not change the ideological make-up of the bench, it is historic given that she is the first Black female justice among the 115 justices who have served on the 233-year-old Court.

Background

Judge Jackson, age 51, received her law degree from Harvard University, where she was graduated in 1996 with a Juris Doctor cum laude. Judge Jackson’s legal career included three clerkships.  She served as a law clerk to Judge Patti Saris of the U.S. District Court for Massachusetts from 1996-1997; she then served Judge Bruce Selya of the U.S. Court of Appeals for the First Circuit from 1997-1998; and after a year of private practice, she then clerked on the Supreme Court for Justice Breyer from 1999-2000.

After her clerkships, Judge Jackson spent three years in private practice, then became an assistant special counsel to the United States Sentencing Commission. She worked as a federal public defender between 2005-2007, then in private practice from 2007-2010, then returned to the Sentencing Commission as its vice chair from 2010-2014.

In September 2012 President Obama nominated Judge Jackson to the U.S. District Court for the District of Columbia, and she was seated in May 2013 after being confirmed by the Senate.

Last year, President Biden nominated Judge Jackson to the U.S. Court of Appeals for the D.C. Circuit. The Senate confirmed her nomination to the appellate court on April 19, 2021 by a vote of 53-44 (with votes from Republican Senators Lindsey Graham of South Carolina, and Senators Collins and Murkowski.)

Positions on Labor & Employment Issues

Because Judge Jackson was appointed as a federal appellate judge just last year, her brief tenure in that position has not yielded a wealth of appellate decisions that might reveal her stance on labor and employment issues.  As a district court judge, however, Judge Jackson heard more than 1,200 civil cases in a wide range of criminal and civil disputes, including a number of suits involving labor and employment laws. She authored 578 decisions for the district court while being reversed fewer than a dozen times.¹

In general, Judge Jackson’s approach to labor and employment cases suggests that she is a balanced and reasonable jurist who would not bring a strong ideological agenda (either pro-employee or pro-employer) to the bench.  Rather, the decisions she has authored are often grounded in the facts of a case, and demonstrate a close eye for detail, nuance, and the specific facts of a particular matter.  She has ruled in favor of employer-defendants on a number of summary judgment matters, and she has set a fairly demanding bar for plaintiffs seeking to establish employer wrongdoing and causation in employment discrimination cases.  See, e.g., Johnson v. Perez, 66 F.Supp.3d 30 (D.D.C. 2014) (granting summary judgment where weight of evidence did not suggest adverse employment action was pretext for unlawful discrimination); Raymond v. Architect of the Capitol, 49 F.Supp.3d 99 (D.D.C. 2014) (holding that while discriminatory comments may have raised an inference of discrimination, the balance of evidence supported employer’s non-selection of plaintiff for promotion).

In several cases involving discrimination on the basis of disability, however, Judge Jackson took a broad view of an employer’s duty to reasonably accommodate an individual with a disability, including the duty to explore reassignment to vacant positions where feasible.  See, e.g., Mitchell v. Pompeo, No. 1:15-cv-1849 (D.D.C. Mar. 31, 2019); Von Drasek v. Burwell, 121 F. Supp. 3d 143 (D.D.C. 2015).

Judge Jackson’s written decisions do suggest that she will take a labor-friendly approach to cases involving labor-management relations, or union/employer disputes.  For example, in 2022, she ruled against the Federal Labor Relations Authority (FLRA) in a challenge brought by a number of unions to a policy the agency had adopted that reduced the obligation of federal employers to engage in collective bargaining.  See American Federation of Government Employees v. FLRA, Nos. 20-1396, 20-1397, 20-1404 (D.C. Cir. Feb. 1, 2022).  She likewise enjoined key provisions of a National Labor Relations Board rule that would have rescinded union-friendly Board election rules put in place by the Board during the Obama administration.  See AFL-CIO v. National Labor Relations Board, 471 F. Supp. 3d 228 (D.D.C. 2020). In addition, in a high-profile decision, Judge Jackson struck down a number of executive orders issued during the Trump administration that limited the bargaining power of federal employees. (Judge Jackson’s decision in that case was later overturned by the Court of Appeals for the D.C. Circuit.)).  See American Federation of Government Employees v. Trump, 318 F.Supp.3d 370 (D.D.C. 2018).

Looking Ahead

The Supreme Court returns for the 2022-23 term on October 3.  To date, SCOTUS has agreed to hear nine cases for its next term.  Among the cases to be heard are a pair of affirmative action cases that could end the practice. Judge Jackson, who earned both her undergraduate and law degrees from Harvard and has served on its board of overseers, said during the confirmation hearings that, if confirmed, she intends to recuse herself from one of the appeals that involves Harvard.