What Ketanji Brown Jackson John Roberts offers

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In Jackson, Roberts could have a second compromise vote to settle disagreements among Supreme Court conservatives.

Supreme Court nominee Justice Ketanji Brown Jackson photographed during her testimony before the Senate Judiciary Committee on Capitol Hill Monday, March 22, 2022 in Washington, DC (Kent Nishimura / Los Angeles Times via Getty Images)

Ketanji Brown Jackson will almost certainly be confirmed in the United States Supreme Court. Senator Joe Manchin’s announced intention to vote for her confirmation is all but done. There’s a good chance Jackson will be on the court for the next 30 years or more. What will change with your confirmation?

Not much in the short term. The Conservatives on the pitch still maintain a favorable 6-3 split. Elena Kagan – who speaks originalism better than Sonia Sotomayor or the future Justice Jackson – remains the Roberts whisperer of the liberal wing. Facing cracks in the court’s conservative ranks, Kagan has effectively narrowed the scope of the court’s holdings in cases where conservative voices have split. She brokered a compromise Little Sisters of the Poor vs. Pennsylvania which relied on administrative discretion rather than the nuns’ conscientious rights under the Religious Freedom Restoration Act – a narrow rule allowing future administrations to revoke the Little Sisters exception. That kind of dealmaking appeals to the self-proclaimed pragmatist Chief Justice Roberts, who voted with Kagan on 64.5 percent of all majors during the 2020 term — at the same rate at which he sided with Clarence Thomas.

Whether Kagan becomes more or less central to the court’s liberal wing depends entirely on Jackson’s legal philosophy. We don’t know what Jackson’s philosophy is or if she has one. She said in her confirmation hearings that if the text were dispositive, she would rely on the original public meaning of the Constitution, but she declined to accept the “originalist” label. She came closest to the outline of a jurisprudential philosophy when she described its “methodology” — that is, freeing your mind from “preconceived notions,” evaluating all “reasonable inputs,” and “observing the limitations” imposed by the text and precedent were set in an attempt “to find out what the words mean as they were meant by the people who wrote them.”

The fact that Jackson felt the need to frame her arguments in original language suggests that she is closer to Kagan than Sonia Sotomayor, an ideologist who argues backwards from substantive commitments regardless of the text. If Jackson is closer to Kagan than Sotomayor, Roberts could have a second compromise vote to settle disagreements among the court’s conservatives.

Conservatives at the Court are often unanimous – each of the Court’s Conservative Justices had a majority in over 80 percent of the cases tried in the 2020 term. But they also disagree among themselves on important issues that have strategic implications for the compromise-loving John Roberts.

Clarence Thomas has been the lone dissenter in otherwise unanimous decisions 30 times in his decades on the bench. Unlike Antonin Scalia, Thomas has no qualms about overturning shabby precedents. “When confronted with a demonstrably flawed precedent,” wrote Thomas, “my rule is simple: we should not follow it.” Thomas has even called for the founding clause of the First Amendment to be repealed. (If you’re a textual scholar, it’s difficult to argue with his reasoning.)

Like Thomas, Samuel Alito is ready to contradict his colleagues on the right. He wrote in it a fiery dissent Bostock vs. Clayton County, which extended Title VII protections under the Civil Rights Act 1964 to gay and transgender workers; Neil Gorsuch wrote the majority opinion.

Gorsuch and Brett Kavanaugh are “more accessible” to the court’s liberal minority and liberal plaintiffs than Thomas and Alito. Gorsuch has a libertarian sensibility and often aligns himself with court liberals in criminal cases. Kavanaugh is a Roberts fanboy. He reportedly had an enlarged picture of himself and John Roberts on the wall of his chambers in the DC Circuit. Kavanaugh rarely stakes unpopular positions; He was in the majority in 97 percent of the cases heard during the court’s 2020 term, by far the highest proportion of any nine judges. He was more likely to reign with Kagan (67.7 percent) and Stephen Breyer (69.4 percent) than Clarence Thomas (66.1 percent) in 2020 merit cases.

“I don’t think Thomas or Alito are there[—] What The New York Times says about her,” said one of Kavanaugh’s friends Atlantic. “But I think Brett does.”

Perhaps that applies not only to Kavanaugh, but also to the Chief Justice himself. Noah Feldman of Harvard Law School argued that “Robert’s approach … is to try to find a middle ground that makes the Supreme Court appear less purely political than if he chose to join the Conservatives.” Robert’s desire to make the court appear less “political” leads him to seek compromise where justice demands clarity.

With a number of controversial cases on the court’s agenda this year on issues ranging from abortion to affirmative action, Roberts could enlist Kagan and a future judge Jackson to reach compromise judgments with Kavanaugh, Gorsuch or Amy Coney Barrett. The last three judges had a majority in more than 90 percent of the court’s cases in 2020, while Alito (83 percent) and Thomas (81 percent) were not. Elena Kagan (75 percent) was not far behind either Alito or Thomas. If Jackson joins Kagan, it’s possible the compromise-ready Roberts will turn to the pair of pragmatic liberal judges, rather than the underdogs to his right.





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