Ketanji Brown Jackson’s Debut

https://www.nytimes.com/2022/10/16/briefing/ketanji-brown-jackson-speaking-arguments.html

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The new Supreme Court term is the first for Justice Ketanji Brown Jackson, the first Black woman on the court, whom President Biden appointed this year. She served as a dynamic presence from the start, asking dozens of questions and laying out her views more directly than many new justices have. I spoke to my colleague Adam Liptak, who covers the court, about her debut and the cases this term that may further the court’s recent rightward lurch.

Ian: Typically in Supreme Court hearings, lawyers for the two sides of a case argue their claims before the justices, who in turn ask questions to help inform their decisions about how to rule. How has Justice Jackson’s court debut stood out?

Adam: I’ve covered the court since 2008, so Justice Jackson is my sixth new justice. Unlike most new justices, Justice Jackson became part of the larger conversation almost immediately. She asked probing questions of the lawyers who made arguments before the court, and lots of them. According to Adam Feldman, a political scientist who runs the Empirical SCOTUS blog, her questions in the eight arguments the court has heard so far this term ran more than 11,000 words. That’s more than twice as many as Jackson’s closest currently serving competitor, Amy Coney Barrett, in her first eight arguments. The gap is even more striking when you compare Jackson to other new justices.

The historical comparisons are not perfect, as arguments have grown longer since the court moved to telephone hearings in May 2020, with the justices asking questions one at a time in order of seniority, and then retained elements of that format when they returned to the courtroom in October 2021. Before those changes, arguments usually lasted an hour. The first eight arguments this month were almost 40 minutes longer, on average. In those sessions, too, Jackson spoke about twice as long as her closest competitor, Sonia Sotomayor. Clarence Thomas — who once went a decade without speaking from the bench — didn’t ask a question until his second day of arguments when he joined the court in 1991. Jackson waited a little more than seven minutes. Her questions were confident and sharp. And like the other justices, she often used them to make points, not just to elicit information.

Why might Jackson choose to speak more than her colleagues?

As the junior justice, Jackson has a special incentive to stake out her positions at arguments. When the justices meet at their private conferences to vote on cases after arguments, they speak in order of seniority, with Jackson going last. If there are already five votes for an outcome, her comments at such conferences will have little weight. The points she makes from the bench at least have a fighting chance of making an impact.

One of the points she made concerned a case about Alabama’s new congressional map. A lower court ruled that the map had diluted Black voters’ power. To counter conservative suggestions that the Constitution is meant to be race-neutral, and thus doesn’t offer special protections for those Black voters, Jackson made the case that the historical context of the 14th Amendment, to protect formerly enslaved Black people, was explicitly race conscious. Her comments got a lot of attention. Why?

Her remarks aligned with originalism, an approach that seeks to interpret the Constitution as it was understood at the time it was adopted. The theory is generally associated with the conservative legal movement. So it was striking to hear Justice Jackson’s remarks in the Alabama voting-rights case because they were an avowedly originalist exposition of the meaning of the 14th Amendment, which was ratified in 1868, during Reconstruction. “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she said.

The justices’ interpretation of the 14th Amendment, which many conservatives say bars all racial classifications by the government, will figure not only in the voting case but also in challenges to race-conscious admissions programs at Harvard and the University of North Carolina, which the court will hear later this month.

You told us earlier this year that the pandemic, the court’s conservative shift and the leak of a draft ruling overturning Roe v. Wade had created tensions among the justices. Have those been on display?

I was at the court in person for several arguments this month, and so far the justices seem to be making a point of trading quips and acknowledging points of agreement. You hear them saying things like, As Justice So-and-so was saying or, Let me build on that point. It seems to be a conscious effort to rebuild relationships that have become a little frayed.

More about Adam: He joined The Times’s news staff in 2002 after 14 years practicing law. With the Supreme Court back in session, he has enjoyed getting out of his home office, trading gossip with other court reporters and exchanging observations about the court that are too trivial for publication.

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Lauren Hard, Lauren Jackson, Claire Moses, Tom Wright-Piersanti and Ashley Wu contributed to The Morning. You can reach the team at themorning@nytimes.com.