The 7th of April marked a historical milestone for the federal court system and our country. Judge Ketanji Brown Jackson, after facing fierce and unmerited opposition from Senate Republicans, has been confirmed to replace Justice Stephen Breyer. This makes her the first black woman to sit on the supreme court.
Though this monumental step should not be ignored it’s important to keep in mind the court’s structural flaws and limitations that will likely keep Justice-designate Jackson from carrying out the good she could offer the court system.
Ketanji Brown Jackson, 51 years old, is the daughter of a lawyer and school principal. Her hard work through high school led to her acceptance into Harvard University which eventually led to her time as a student at Harvard Law School. In her time at Harvard, she held the position of supervising editor of the prestigious Harvard Law Review.
From her high achieving academic career led to time spent clerking for top judges. This included her soon-to-be predecessor Stephen Breyer. After spending several years in private practice and serving as a public defender, President Barack Obama nominated Jackson to the US Sentencing Commission. In 2013 Jackson was elevated to the D.C District Court, and later to the US Court of Appeals for the DC Circuit.
Justice-designate Jackson will bring necessary experience to a court firmly skewed conservative. Along with bringing the perspective of black woman to the court, Jackson brings experience fighting for working people. With experience as a public defender, Brown will serve as the only justice with criminal-defense experience. While this fueled some of her opposition, I believe there was another subject more important to her opposition. An example of that issue is represented by The National Association of Letter Carriers who released a joint statement with 27 elected labor representatives supporting Jackson ahead of her confirmation vote.
Attacks of all types were thrown at Jackson throughout her confirmation. They started by questioning the qualifications of a Harvard educated, former District Court, and current US Court of Appeals judge, a clear dog whistle to racists. The opposition then moved to appeal to conspiracy theorists by accusing the judge who presided over the ‘Pizzagate’ shooter’s trial of pedophilic sympathies. While that’s already appealing to some of our country’s worst emotions the issue then turned trans-exclusionary rhetoric by pressing the Doctor of Law to define womanhood.
While these attacks were vicious and have value for a party that benefits from galvanizing these sentiments, I believe there is another strong sub-surface motivation to opposing her nomination and that’s Jackson’s union support. While both parties are guilty of taking corporate donations, one party champions the issue and it’s the same group opposing Jackson.
The federal courts have played a large role in both supporting and destroying unions since the labor movement. This makes the judicial branch of government a special target for big money interests. Though some unions are large organizations, workers are often left out dry while corporations always have a safe home with the Republican party.
It’s no secret that there are corporate interests that view the courts as a political institution to further their agendas. According to Senator Sheldon Whitehouse, the Federalist Society is an organization for conservative lawyers to receive prominent judicial appointments. As recently as the fiscal year ending in September 2020 this organization reported to the IRS that it received over $18 million in contributions.
This organization props up those who hold bigoted values that go hand-in-hand with conservative values like standing against a woman’s right to bodily autonomy. This organization also does what it can to fill courts with those who believe in deregulation as well as those who side with bosses over workers.
By appealing to dark emotions in our society conservative anti-worker values are allowed to skirt by unnoticed. With that in mind, I wonder how someone goes about finding nearly $20 million in donations every year? Probably not from everyday people, more likely it comes from those who benefit from the services of deregulation and crushing unions, i.e., corporations.
Despite the conservative fears of a young proworker black woman holding a seat on the high court they’ve come short of demanding structural change. This court, regardless of Jackson’s addition is held with a 6-3 conservative majority in a country that has only popularly elected one conservative presidential candidate in thirty years. This exposes a clear lack of democracy in this branch of government.
In a country where the chief executive can be elected without a popular majority and the most prominent legislative body weighs states with 1/80th of the population of others equally, it’s no surprise our third branch has issues. It is claimed that the courts are a non-political institution so presumably we should keep democracy from interfering with it outside of presidential appointments.
However, the court being nonpolitical is observably untrue. The courts have been used for political reasons on many occasions. Some prominent examples are the almost 2,000 challenges to the Affordable Care Act and upcoming challenges to the EPA’s regulatory authority.
Given the undemocratic nature of this institution and the Republican’s fears of our new justice maybe it’s time they stand for structural democratic reform. We could expand the court to represent each of the 13 federal appellate courts to embody the views of our large and diverse country more comprehensively. Each justice could also be subject to fixed terms before facing a national retention vote. Bringing retention elections to the court would allow the left and the right a chance to mend their dissatisfaction with particular justices. If conservatives fear that nonexistent big-money radical-leftwing institutions will exert influence in those retention elections, they should join with us in publicly financing all elections. If conservatives could muster up the popular support these would be potential solutions to their proworker problem. However, democracy does not serve conservative values favorably and thus through their dissatisfaction with Justice-designate Jackson they will prefer to maintain their competitive edge granted by a lack of democracy.