Judge Ketanji Brown Jackson is President Joe Biden’s nominee to replace Justice Stephen Breyer on the Supreme Court, he announced Friday morning. The first Black woman nominated to serve on the nation’s highest court, Jackson — currently a judge on the U.S. Court of Appeals for the D.C. Circuit — will, if confirmed, become one of nine final arbiters of what the laws mean in a nation that has a long history of denying Black women the protection of those laws.
Jackson will also be joining the Supreme Court at a time when a six-justice conservative majority controls the court’s trajectory, leaving her and the other two more liberal appointees with little say over many of the most high-profile cases coming before the justices. With at least five of the six conservatives (the other being Chief Justice John Roberts) apparently willing to jettison precedent and practice to advance their aims, Jackson will become a justice at one of the most difficult times for legal liberals since the New Deal.
While being the first Black woman nominated for the Supreme Court is historic, the court’s history is so overwhelmingly white and male that all of the relevant numbers bear attention: Jackson will be only the third Black person to serve on the Supreme Court, after former justice Thurgood Marshall and Justice Clarence Thomas, and only the second woman of color, along with Justice Sonia Sotomayor. Jackson’s professional experience will also bring something different to the court. She will be the first justice to have served as a criminal defense lawyer since Marshall stepped down from the court in 1991, and the first justice to have worked in a public defender’s office.
Jackson’s nomination follows a career that has had her under discussion as a possible nominee since Justice Antonin Scalia died in 2016. At that time, Jackson was just finishing her third year as a federal-district court judge. Then-President Barack Obama had nominated Jackson — a former Breyer clerk — to the U.S. District Court for the District of Columbia in late 2012. In early 2016, Obama interviewed her for Scalia’s seat, although the nomination ultimately (and unsuccessfully) went to Merrick Garland.
Five years later, though, Jackson was Biden’s first confirmed appellate judge. She took her seat on the D.C. Circuit in June 2021, after being confirmed with support from just three Senate Republicans. Less than a year later, after long being considered the front-runner for the nomination, Jackson was selected by Biden on Friday.
Biden pledged during his presidential campaign to nominate a Black woman should he have the chance to name a Supreme Court nominee and recommitted to that promise when Breyer announced his retirement, so his choice of a Black woman for the nomination, though historic, comes as no surprise. Much has — appropriately — been written about that commitment and what the appointment of Jackson to the court will mean, in the law and for people across the country.
Jackson’s nomination also makes a strong statement about the law and judiciary in that Biden chose one of the handful of appellate judges with any significant experience on the criminal defense side of the criminal legal system to add her voice to Supreme Court discussions. Given the failure to pass legislation following the racial justice and criminal justice pledges that Democratic politicians, including Biden, made in the summer of 2020, Jackson’s nomination could turn out to be one of the most significant developments to follow that moment. In a judicial system where former prosecutors are dramatically overrepresented, Jackson — along with Biden’s many lower-court nominees with public defender and other criminal defense experience — could change the way the courts address criminal legal issues.
She will, however, be entering a court that could, before she even takes her seat there, end the constitutional right to an abortion that has been affirmed repeatedly since the court’s 1973 opinion in Roe v. Wade. The court will also, before her predecessor steps down, decide a case that could further stymie efforts to regulate personal gun ownership in the United States. It has further agreed to hear cases, likely in the next term, over the future permissibility of affirmative action in higher education and whether those who oppose same-sex couples’ marriages can be exempted from public accommodations laws.
Jackson’s history does include significant time working with people who had differing views from hers. In addition to more traditional clerkships and time in private practice before becoming a judge, Jackson also spent four years as a commissioner on the U.S. Sentencing Commission — an independent agency responsible for crafting the Federal Sentencing Guidelines and related matters — and two years earlier in her career as a lawyer with the commission.
In response to a written Judiciary Committee question noting support for her D.C. Circuit nomination from more conservative corners and asking how she worked with those with different views, Jackson noted, “As a Supreme Court law clerk … I evaluated complex legal issues and regularly exchanged significant insights with the clerks of other Justices. Similarly, my work in both private practice and on the Sentencing Commission (a bipartisan policymaking body by statute) routinely required me to consider, assess, and incorporate the views and concerns of brilliant lawyers and judges with different backgrounds and perspectives.”
In the coming weeks, the nation will learn much more about Jackson as the Senate considers her nomination. Given Senate rules allowing Supreme Court confirmations with a simple majority vote, Jackson is likely to be confirmed absent an unexpected development.
That confirmation will be historic yet completely expected.
Jackson has been one of the likeliest candidates for this vacancy since Biden announced his pledge. She was a young short-lister in the Obama administration; a front-runner when Biden took office, along with California Supreme Court Justice Leondra Kruger; and the front-runner when Breyer announced his retirement. Much as he did in his selection of now-Vice President Kamala Harris as a running mate, Biden has managed to make history while simultaneously doing exactly what was expected.
This article has been updated.