Ketanji Brown Jackson’s judicial superpower: An appreciation of the human consequences of court rulings
There are likely to be two dominant narratives when the Senate Judiciary Committee opens the confirmation hearings for Judge Ketanji Brown Jackson, President Biden’s nominee to the U.S. Supreme Court, scheduled to begin on March 21. Democrats will certainly extol her history-making potential as the first African American woman ever nominated to the Supreme Court. But then the action will shift to Republicans, who will do their best to undermine her appointment.
No Republican senator will have the effrontery to call her a “lesser black woman,” but we can expect to hear them repeat Minority Leader Mitch McConnell’s (R-Ky.) charge that she is the “choice of far-left dark-money groups” and assert that her background as a federal public defender makes her “soft on crime.”
At some point – sooner rather than later, if the Democrats have their way – the hearings will return to Jackson’s stellar qualifications – academic, professional and judicial – which are easily the equivalent of the recent Republican nominees. She would be the first public defender to sit on the Supreme Court, and the first justice since the 1991 retirement of Thurgood Marshall with extensive experience in criminal defense.
There is another aspect of Jackson’s background that deserves more attention. She previously served as a U.S. district court judge for eight years, presiding over civil and criminal trials. Among the Supreme Court’s current members, only Justice Sonia Sotomayor has also handled a demanding individual caseload of complex matters, having served on U.S. district court for six years. That experience is meaningful for two reasons. One is a deeper appreciation of the human consequences of judicial rulings; the other is a heightened understanding of the nuts and bolts of everyday trial work.
Unlike appellate judges and Supreme Court justices, trial judges must directly confront the impact they have on people’s lives. They see victims and witnesses as they testify, hear the parties explain their cases, determine the truth of claims and defenses and often tell people, to their faces, whether they will go free or spend years in prison. Although not as exalted or sweepingly influential as the Supreme Court, the trial courts are the forums where the most people actually encounter the law.
Highly publicized Supreme Court opinions usually address major substantive legal issues, such as the powers of the presidency, the scope of voting rights laws or the authority of administrative agencies. There is another set of lower-profile decisions, however, that govern relatively technical issues, such as pretrial procedures and rules of evidence. These are essentially directions to trial judges, telling them how to run their courtrooms, at the risk of reversal if they misapply the rules.
Given the authority of Supreme Court decisions over the day-to-day management of the trial courts, it is important for them to be as unambiguous as possible. Even so, some of the court’s procedural opinions have been less than definitive on questions such as the application of the Constitution’s “confrontation clause,” the admissibility of certain hearsay statements and the use of character evidence by prosecutors. This is not necessarily to say that the Supreme Court got these issues wrong, but only that some majority rulings have been overly confusing or difficult to apply in practice, suggesting that the justices who signed them may not have fully grasped the problems they were supposed to be solving. The participation of a second former trial judge could add much needed clarity to the Supreme Court’s procedural pronouncements.
Until 1891, every Supreme Court justice was required to “ride circuit,” routinely presiding over trials in local courts. In the past 130 years, however, only 11 appointees – out of 59 – have ever been trial judges, and that includes Justice Hugo Black’s year as a part-time police court judge in Alabama, and Justice Benjamin Cardozo’s two-week stint on a New York state trial court. Only four times post-circuit riding have two justices with extensive trial court experience overlapped on the Supreme Court, most recently Justices Sandra Day O’Connor and David Souter, both known for their independence and pragmatism, who served together from 1990-2006.
Justice Sotomayor also has significant experience as a trial lawyer, as do Justices Samuel Alito and Neil Gorsuch. It is entirely possible that several of the others – perhaps Justices Elena Kagan, Stephen Breyer, Amy Coney Barrett, Brett Kavanaugh or Chief Justice John Roberts – have never even observed a complex trial from beginning to end. A written trial record may provide sufficient information to affirm or reverse the outcome of any given case, but records alone can be a shaky basis for categorically instructing lower court judges on the conduct of future trials. It is as though there were members of the NBA rules committee who had diligently reviewed many shot charts without ever seeing a complete basketball game.
Justice Oliver Wendell Holmes once wrote, “The life of the law has not been logic: it has been experience,” explaining that the application of law to people’s lives “cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
Judge Jackson will bring a wealth of profound experience to the Supreme Court, not the least of which will come from her eight years sitting face-to-face with the real people in her courtroom.
Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”