Justice (to be) Ketanji Brown Jackson

Lately Putin’s cruel war in Ukraine seems to be sucking the oxygen out of the news and monopolizing our national focus. But it would be wrong—and psychologically unhealthy—not to celebrate the now-assured ascent of Judge Ketanji Brown Jackson to our Supreme Court. In this dismal age, her confirmation is a beacon of light. It’s like a “hand of God” sunbeam that shines through briefly parting clouds in a darkening storm.

As a lawyer for eight years and a law professor and legal consultant for over twenty-five more, I have a special perspective on Judge Jackson’s confirmation. Of course I celebrate the symbolism of her Blackness and female gender. It’s long past due.

But to me, Judge Jackson is much more than a symbol of agonizingly slow national progress in race and gender equality. She could lead our legal system back from misguided abstractions, which often border on the delusional, to our roots as a practical people with feet planted firmly on the ground of daily life.

In the last dozen years or so, our Supreme Court has made three of the worst decisions in its 231-year history. Perhaps the very worst was Shelby County v. Holder, decided in 2013. The Court saw no continuing need to pre-clear states' voter suppression, because it found they had stopped doing it. With that blind decision, it opened the floodgates for the rampant and flagrant voter suppression that we see in red states today. That suppression could destroy our democracy still. It could help ignite a second civil war.

In Citizens United v. FEC, the Court opened the spigot of anonymous “dark” money in politics. It did so just in time for the cryptocurrency revolution to corrupt and subvert our democracy with unseen billions from unseen hands. And so we now have a system in which private propaganda organs like Fox and Sinclair—privately (and often secretly!) funded by billionaires in the most unequal economy since Genghis Khan’s—compete with “us, the people” reaching into our shallow pockets for a few bucks to level the media playing field.

Last but not least is McDonald v. Chicago, decided in 2010. There the Court held gun possession a personal right, intended in part to protect citizens against our own government, despite the Second Amendment's explicit mention of “a well-regulated Militia.” And so we Americans now have the largest collection of unregulated firearms in civilians’ hands in human history, both per capita and in hard numbers. Consequently, we also have human history’s most catastrophic rate of random and totally unnecessary massacres of innocents, including schoolchildren.

The direct cause-and-effect relationship between these monstrous decisions and the crumbling of our democracy and our civility is apparent to anyone who can reason without ideological prejudice. What is less apparent is how and why our Supreme Court got them so wrong. The reason, I think, is that most of our Supreme Court Justices lack experience in the realities of human life that the rules they make govern.

Take the late Justice Antonin Scalia, for example. After six years at a high-end corporate law firm, he held a series of academic posts, interspersed with appointed policy-making legal positions in Republican administrations. He spent not a single day as a trial judge, a public defender, or (insofar as his biography reveals) a trial lawyer. His entire judicial experience before ascending to the Supreme Court was four years as judge on the D.C. Circuit Court of Appeals, where he ruled on appellate abstractions as appellate judges do.

Justice Amy Coney Barrett’s biography is similar. Her experience as a practicing lawyer consisted of three years with a boutique law firm that got acquired (while she was there) by one of the nation’s biggest corporate law firms. The rest of her career, before her elevation to the Supreme Court, involved teaching in law schools, serving on a federal advisory committee, and a mere three years as an appellate judge on the Seventh Circuit Court of Appeals.

These and other Justices had distinguished legal careers. But they lack the practical experience of human reality that comes from seeing witnesses testify personally in a courtroom. They have little basis on which to judge how the law and our legal system affect the rest of us. They have their heads in a cloud of legal abstractions and their feet nowhere near the ground.

The now-retired PBS news commentator Mark Shields had a more practical view. He was appalled by the Court’s decision in Citizens United and decried it shortly after it came down. He said that he wished the Justices who had decided it each had experienced just one run for an elective office, whether as sheriff or county commissioner. Then they would understand how money corrupts politics, and how powerfully and often it does so.

When you look at our legal system from the bottom up, you see something quite different from the what appellate judges and Justices see in their ivory towers. You see a criminal-justice system in which only one out of twenty defendants ever sees the inside of a courtroom. The rest plead out in hard bargaining with prosecutors and police, who use every psychological trick to get them to give up their rights under our Sixth Amendment “to a speedy and public trial, by an impartial jury[.]”

On the civil side, “contracts” that you sign on a form or with the click of a mouse now extinguish your rights under English and American common law developed over the 807 years since Magna Carta. In their place—and in the place of our Seventh-Amendment right to a trial by a jury at common law—you now get secret arbitration, with nondisclosure requirements and gag orders. You also give up your right to participate in a class action, which is the only practical way that we, the people, can get recompense for minor errors and swindles that, in the aggregate, make corporations billions. Secrecy of outcomes may be the worst of these effects: how can you know your own “rights” if you never hear of a neighbor who got a big judgment in arbitration in a case just like yours?

Untethered from the sordid details of reality, abstractions can become delusions. Take the GOP mantra of “limited government,” for example. So far does it control today’s right-wing mind that people ignore how much government does for us every day.

With its dedicated scientists and supercomputers, NOAA gives us our (mostly accurate) weather predictions when we wake up before we go on outings. The EPA keeps the air we breathe and the water we drink from being even dirtier. The NTSA makes sure our cars are safe and investigates airplane crashes, including the recent disaster in China. The FDA gives us safe and effective drugs. The TSA keeps guns and terrorists off our planes. The Coast Guard patrols our coasts. The rest of the military protects us from monsters like Putin and Kim. The Army Corps of Engineers designs a lot of our highways, harbors, national parks, dams, levees, waterways, and bridges. For geezers like me, the SSA deposits my social-security check into my bank account reliably and seamlessly, every month. Medicare lets me go to doctors and hospitals without fearing bankruptcy. And, unbeknownst to most youth today, the federal government, through DARPA, invented the Internet and funded its initial, non-commercial development. Oh, and did I mention that NASA sent men to the Moon?

Every day, things that expert, dedicated government scientists, officials and bureaucrats do make our lives incomparably easier, richer, and safer. Like Mark Twain’s premature death, the notion that government is a bumbler and useless compared to private business is greatly exaggerated. Yet the abstract right-wing myth, repeated endlessly, has taken control of our collective minds and made us zombies. Recently, I had to remind an old colleague of all that our government does for us, even though he had spent most of his career working in a government-run and government-funded physics laboratory.

Thus my hopes for and confidence in Justice Jackson derive from far more than her race and gender. With her four years of legal practice, ten years as a trial judge, and two years as a public defender (unique on the high court), she has a lot more in her head than seductive abstractions. She has the vicarious experiences of all the real people—plaintiffs, defendants and witnesses—whom she represented or who testified in person before her in her courtroom. She has her relationships with the clients whom she defended in criminal trials and vicariously their experiences, good and bad, with our criminal justice system.

So Justice Jackson’s opinions are sure to be based on justice tempered with realism, practicality and mercy. At least that was so with her Solomonic decision in the child-porn case of Wesley Hawkins.

Yes, this is the same case that her rude Senate detractors demagogued against her. The teenage defendant had no criminal record and had expressed contrition. He had only viewed child porn on his computer. He hadn’t produced or created it. With his ambiguous sexuality (he later came out as gay), he would have been a prime candidate for rape and abuse in prison if given a long sentence. So Judge Jackson gave him three months: long enough to scare the hell out of him but short enough to prevent repeated in-prison abuse from ruining his young life and possibly making him a hardened criminal. Isn’t that the kind of justice that each of us would want for ourselves if in a similar situation?

My fantasy for Justice Jackson is seeing her preside, some day, over a trial of Vladimir Putin for war crimes, just as Chief Justice Robert H. Jackson (no relation) did in the Nuremberg Trials of Nazi war criminals 77 years ago. She’s that smart and that good. She has a personality that everyone who’s worked with her seems to have adored. So she just might bring our Supreme Court out of the clouds of disembodied abstractions in which it has been living, and back to practical reality, before those abstractions-become-delusions destroy us.


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