111 K Street NE
Washington, DC 20002
- Toll Free 1.888.564.6273
- Local 202.783.3870
The Big Picture
Then candidate Joe Biden promised that if he was elected president, he would nominate a black woman to the Supreme Court if a vacancy arose. After a never-ending call from liberal groups for Justice Stephen Breyer to retire after Biden was elected, Justice Breyer ultimately gave in.
Although Justice Breyer was nominated to the Supreme Court by President Clinton, and in almost every major 5-4 or 6-3 case voted with the other Democratic-appointed justices, he was seen as one the most moderate justices on the bench during his tenure. Moreover, he also came out forcefully against court-packing just twelve days after President Biden issued an Executive Order creating a commission of legal scholars to study the issue.
To replace Justice Breyer, President Biden nominated Judge Kentanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). While Judge Jackson issued some notable opinions during her time as a Federal District Court Judge in D.C., it is also important to study what President Biden said he was looking for in a nominee to completely understand her nomination.
Senate Judiciary Chairman Senator Dick Durbin has scheduled Judge Jackson’s confirmation hearing to begin on Monday March 21st , and last four days. Senate Majority Leader Chuck Schumer’s goal is to have Judge Jackson confirmed before the Senate leaves for Easter recess on April 8th. Importantly, Justice Breyer will not step down until the end of the Court’s 2021-2022 term in late June or early July.
Why a Supreme Court Nomination Matters
Fundamentally, there are two issues that set justices on the Supreme Court apart from every other judge or justice in the American judicial system. The overarching obvious point is there is no higher court in our federal constitutional system than the Supreme Court. Based on that, how a nominee interprets the Constitution, and how a nominee deals with precedent become the two most important things in the confirmation process.
First, the Supreme Court has the final word on the interpretation of the federal Constitution and federal statutes that binds lower courts both in the federal and state judicial systems. While State Supreme Courts have the final say over the interpretation of their state constitution and state statutes, if a state constitutional provision or state law is unconstitutional under the federal Constitution, it is unenforceable. See U.S. Const., Art. VI, cl. 2; see also Espinoza v. Montana Department of Revenue (2020). Moreover, for state statutes that are constitutional, but come into conflict with federal statutes or regulations, those laws are preempted under the federal Constitution, and are unenforceable. See U.S. Const., Art. VI, cl. 2; see also Arizona v. United States (2012).
While there are some constitutional issues the Supreme Court has not decided, it is rare for judges on lower federal courts to see them. Therefore, how a nominee interprets the Constitution becomes one of the most important issues in the confirmation process, unlike a nomination for a lower court. However, there is often little to no evidence of how a nominee will interpret the Constitution at first glance, which makes the confirmation process much more difficult.
At Judge Jackson’s confirmation hearing for the D.C. Circuit, Senator Cruz asked her how she interprets the Constitution. While Judge Jackson largely dodged the question, noting that she has not heard any cases where she had to come up with a framework, she said the Constitution is an “enduring document” and the Supreme Court has said it “has a fixed meaning.”
The second issue, which is interrelated with the first, is the issue of precedent. Stare decisis, Latin for “to stand by things decided,” is the legal doctrine that courts should apply previous decisions (precedents) in future cases when the issues in the case are the same or closely related. While some argue that lower federal courts are not bound by Supreme Court precedent because judges swear an oath to the Constitution, not to the Supreme Court’s interpretation of the Constitution, the overwhelming majority view is that lower federal courts are bound by Supreme Court precedent. The simplest reason for this is that under Article III, lower federal courts are “inferior” to the Supreme Court, and it is difficult to see how they can be “inferior” if they are overruling or reaching different decisions than the court above them.
So, like constitutional interpretation, a nominee’s view of when to apply or discard precedent becomes one of, if not the most important, issues to a confirmation. But, there is no evidence of what a nominee will do because almost all lower court judges hold the overwhelming majority view that they are bound by Supreme Court precedent. Traditionally, the Supreme Court considers a series of factors when deciding when to overrule precedent, and has not applied those factors consistently: (1) whether the prior decision was wrong or egregiously wrong, (2) the quality of the precedent’s reasoning, (3) changed law or facts since the prior decision, (4) workability of the prior decision, (5) reliance interests of those who have relied on the prior decision, and (6) age of the precedent. See Ramos v. Louisiana (2020) (Kavanaugh, J., concurring).
Another important issue, but not as important as the two preceding issues, is how a justice perceives his or her role. Here, there are two endpoints. A justice can be happy writing solo dissents or concurrences recognizing the law will likely never reach the result he or she wants. Or a justice can play the role of dealmaker and try to narrow the reach of majority opinions, even if they disagree with the result.
Justice Breyer has always played the role of dealmaker. For example, it was widely reported in the first case over the constitutionality of the Patient Protection and Affordable Care Act (NFIB v. Sebelius (2012)) that Chief Justice Roberts and four justices voted in conference that the entire law was unconstitutional. But Chief Justice Roberts later changed his mind. He reached a deal with Justices Breyer and Kagan that the Court would uphold the individual mandate requiring individuals to purchase health insurance, but held that the Medicaid expansion, requiring states to increase their Medicaid rolls at the expense of losing all their federal Medicaid funds, was unconstitutional. As a result, the entire law was allowed to stand, and states were allowed to expand their Medicaid rolls without the threat of losing all their federal Medicaid funds if they chose not to.
How Judge Jackson perceives her role on the Supreme Court will have a consequential impact. If she plays dealmaker like Justice Breyer, she will work closely with Chief Justice Roberts, and Justices Barrett, Kavanaugh, Kagan, and Sotomayor at the expense of Justices Thomas, Alito, and Gorsuch. While the media largely portrays the makeup of the Supreme Court as 6-3 based on the political party of the president who appointed them, another theory is that the make-up of the Court is 3-3-3. The liberal side features Justices Breyer, Kagan, and Sotomayor. The moderate conservative side features Chief Justice Roberts, and Justices Kavanaugh and Barrett. The more conservative side features Justices Thomas, Alito, and Gorsuch.
If Judge Jackson is confirmed, she will have an important choice. She can join the liberal justices writing furious dissents, possibly pushing the moderate conservatives into the hands of the more conservative-leaning justices. Or she can play dealmaker, thereby cutting out the more conservative-leaning justices, and try to find common ground in cases where she might not agree with the bottom-line result but is comfortable with the opinion’s reasoning.
Judge Jackson’s Major Rulings as a Federal District Court Judge
During her tenure as a judge on the Federal District Court in D.C., Judge Jackson authored over 500 opinions. There are three that are particularly notable.
Executive privilege. After the Mueller Report was released, the House Judiciary Committee subpoenaed former White House Counsel Don McGahn to learn what he told Special Counsel Robert Mueller. In response, President Trump instructed McGahn not to comply. The Department of Justice’s Office of Legal Counsel (OLC) argued that senior advisers to the president like the White House Counsel are immune from congressional testimony (do not need to show up). While the Democrats and the media portrayed President Trump as lawless for making this argument, OLC has taken this position under presidents of both parties for at least the past 50 years. Judge Jackson held that the subpoena was lawful, McGahn needed to testify and could assert executive privilege at that time, and OLC’s position on immunity was “a fiction.”
On appeal, Judge Jackson was partially reversed. Ultimately, McGahn and the Judiciary Committee reached an agreement for him to testify behind closed doors.
Collective bargaining for federal employees. In 2018, President Trump signed a series of executive orders that regulated both the collective bargaining negotiations that federal agencies enter with public-sector unions and the matters that these parties negotiate. The orders placed limits on the activities that federal employees may engage in when acting as labor representatives, established rules that limit whether an agency’s time and resources may be used by employees on non-government business, prohibited agencies from resolving disputes over employee ratings and incentive pay through grievance or arbitration proceedings, and maintained that some subpar employees may have 30 days to improve their performance before being reassigned, demoted, or fired. Judge Jackson held the orders were illegal under the Federal Service Labor-Management Relations Statute, and enjoined (prohibited) them from being enforced.
On appeal, the D.C. Circuit in a 3-0 vote reversed Judge Jackson. It held that she did not have jurisdiction to hear the case because the Federal Service Labor-Management Relations Statute vested jurisdiction in the Federal Labor Relations Authority, subject to direct review only in the D.C. Circuit. The panel featured Judge Thomas Griffith, appointed by President Bush; Judge Raymond Randolph, appointed by President H.W. Bush; and Judge Sri Srinivasan, appointed by President Obama.
Illegal immigration. Under the federal law known as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIA) of 1996, some illegal immigrants can be subject to a fast-track, near-immediate ejection removal procedure that is known as expedited removal. In 2019, the Department of Homeland Security (DHS) published an announcement in the Federal Register expanding expedited removal to its full statutory limits so that it would reach all illegal immigrants who had been in the United States for less than two continuous years. When the issue over the legality of this rule reached Judge Jackson, she held that the rule was illegal, and enjoined (prohibited) it on a nationwide basis from being enforced.
On appeal, the D.C. Circuit reversed in a 2-1 vote. Although Judge Rao, appointed by President Trump, dissented, she agreed that Judge Jackson was wrong, albeit for different reasons. The majority held that DHS’s rule was subject to IIRIA’s provision that provides “sole and unreviewable discretion” to the secretary, and was not subject to judicial review under the Administrative Procedure Act. The majority opinion was written by Judge Millett, appointed by President Obama, and joined by Judge Edwards, appointed by President Carter.
President Biden’s Expectations for his Supreme Court Nominee
After Justice Breyer announced he was retiring, President Biden weighed in on what he wanted from a nominee. He wanted a nominee “with character” and a judicial philosophy that “suggests that there are unenumerated rights to the Constitution and all the amendments mean something, including the Ninth Amendment.” Biden has also said his view is that the Constitution is an “evolving document.”
Before commenting on the substance of Biden’s remarks, it is important to remember he was the chairman of the Senate Judiciary Committee when nominees such as Robert Bork and Clarence Thomas were nominated to the Supreme Court. On the Ninth Amendment, Judge Bork famously said it was an “ink blot” because he did not know what it meant, but he was open to more historical evidence about what it is supposed to protect. Biden went on to vote against Bork’s confirmation. From this, one might gather that Biden wants an anti-Bork nominee.
The Ninth Amendment provides, “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. To date, the Supreme Court has never given a definitive answer or based a decision on the Ninth Amendment. When parsing Biden’s words closely, it is likely he is arguing the Ninth Amendment provides protection for unenumerated rights, and he wants his nominee to adopt his interpretation.
The most prominent Ninth Amendment opinion comes from a concurring opinion by Justice Goldberg joined by two justices in Griswold v. Connecticut (1965). In Griswold, Connecticut banned contraception products, and made it a crime to aid or assist anyone in getting them. Even though these laws were hardly enforced, a married couple sued, arguing the law was unconstitutional. While Griswold is infamous for Justice Douglas’ opinion creating a right to privacy because “specific guarantees in the Bill of Rights have penumbras, formed by emanations,” the concurring opinion by Justice Goldberg argued the Ninth Amendment protects a fundamental right of marital privacy. Justice Goldberg concluded that the Ninth Amendment shows “the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments.” Of course, rights only become “fundamental” in this sense if the Supreme Court says so.
The reason Biden wants a nominee to use the Ninth Amendment to find unenumerated rights is because when the Court applies its unenumerated rights doctrine correctly, it reaches results he disagrees with. Today, the Court derives unenumerated rights from the Fourteenth Amendment’s Due Process Clause, which read literally deals only with procedure, but the Court determined it also provides substantive protections. This doctrine is known as “substantive due process.”
When applied correctly, the Court’s unenumerated rights test asks: (1) whether the right is objectively, deeply rooted in the Nation’s history and tradition, and (2) a careful description of the asserted fundamental liberty interest. See Washington v. Glucksberg (1997). This is an extremely difficult test to pass because when the Court finds an unenumerated right, it is taking an issue away from the political arena.
Biden would likely want the Ninth Amendment used in an activist way such as how Justice Kennedy used the Fourteenth Amendment in a series of opinions. Instead of being constrained by an objective reading of our Nation’s history and tradition, Justice Kennedy believed it only guided the inquiry. From there, Kennedy explained that our past should not rule the present, those who wrote the Fourteenth Amendment did not know “the extent of freedom in all of its dimensions,” and it is the role of future generations to “learn” the true meaning of liberty. See Lawrence v. Texas (2003); Obergefell v. Hodges (2015). Under this doctrine, it is solely the role of the current Supreme Court to define unenumerated rights, and there is nothing that constrains its inquiry. In other words, a justice should feel free to find constitutional protection for rights that line up with their policy preferences.
President Biden’s Record with Black Conservative Judicial Nominees
The rumor is that then candidate Biden promised Rep. Jim Clyburn he would nominate a black woman to the Supreme Court in order to secure his endorsement. Whether or not that rumor is true, Biden has stressed diversity on the bench in many of his lower court appointments. While the Constitution allows the president to nominate whomever he or she wishes to serve as a federal judge subject to the Senate confirmation process, Senator Biden had a markedly different view on black nominees when they were put forward by Republican presidents.
As stated above, Senator Biden was chairman of the Senate Judiciary Committee when President H.W. Bush nominated Judge Clarence Thomas to replace Justice Thurgood Marshall. Senator Biden would go on to vote against Thomas. Justice Thomas, in describing what it was like listening to questions from Senator Biden commented, “[o]ne of the things you do in hearings, is you have to sit there and look attentively at people you know have no idea what they’re talking about.”
An even more egregious and outrageous display from Senator Biden came with the nomination of Justice Janice Rogers Brown of the California Supreme Court to the D.C. Circuit. Importantly, Justice Brown was the first black woman on the California Supreme Court. President Bush nominated Justice Brown to the D.C. Circuit in 2003. In response, Senator Biden led a filibuster against her nomination. Instead of highlighting the incredible story of Justice Brown, who grew up in poverty in rural Alabama during segregation, with parents and grandparents who were sharecroppers, Biden led the charge against her. Justice Brown would later be confirmed to the D.C. Circuit in 2005, and Biden voted against her.
In 2005, when Judge Brown was bandied about as a potential Supreme Court nominee, Senator Biden said he might filibuster her, and that it would be a “very, very, very difficult fight.” Importantly, that would have been the first ever filibuster of a Supreme Court nomination, and Biden would have stood in the way of the first black woman being confirmed to the Supreme Court, something he now claims is so very important.