Unlike the previous three justices appointed to the high court, the Senate’s vote to confirm Judge Ketanji Brown Jackson as the next Supreme Court justice will see her waiting months before she succeeds retiring Justice Stephen Breyer.
Jackson’s unusual situation is due to Breyer’s intent to remain on the high court for the remainder of the present 2021-2022 Supreme Court session, which will conclude this summer. The incoming justice stopped her participation in appeals court work when she was nominated in February, and she will remain a bystander as the Supreme Court weighs major issues such as abortion, guns, and environmental protections.
“I intend this decision to take effect when the court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer wrote in a letter announcing his retirement plans.
‘STAY IN MY LANE’: SUPREME COURT JUSTICE-IN-WAITING JACKSON PLEDGES IMPARTIALITY
Before Breyer, Justice Anthony Kennedy was the last high court member to announce his retirement, doing so on June 27, 2018, on the last day of his term. His successor, Justice Brett Kavanaugh, assumed Kennedy’s former seat on Oct. 6, when the next term was already underway.
Although Jackson is barred from continuing work on the U.S. Court of Appeals for the District of Columbia Circuit, she is able to use her time now to hire law clerks and study Supreme Court cases slated for next term’s docket.
The high court last year heard Dobbs v. Jackson Women’s Health Organization, a case concerning a Mississippi law banning abortion after 15 weeks of pregnancy. In its defense of the law, Mississippi directly asked the court to reconsider Roe v. Wade and Casey v. Planned Parenthood, which some legal analysts and activists on both sides of the abortion debate say could prompt the court to reverse or scale back those decisions. The court’s decision in the case is expected this summer.
Jackson’s confirmation will not change the present 6-3 conservative majority on the bench, meaning her inability to weigh in on decisions such as the Dobbs case, a New York Second Amendment rights case, as well as examinations of the Environmental Protection Agency’s ability to address climate change will not matter given the present makeup of the Supreme Court.
Rather, Breyer and the two other Democrat-appointed justices will likely dissent from the majority’s opinion in several decisions before the court.
Additionally, Jackson said during her Senate Judiciary Committee hearings last month that her “plan” is to recuse herself from one of next term’s high-profile cases, a lawsuit against Harvard’s race-conscious admissions program, due to her services on one of the university’s governing boards. However, she is not expected to recuse on a companion case over the admissions program at the University of North Carolina, according to the New York Times.
One of the first major cases before Jackson and the other eight justices next term will center on a religious liberty and LGBT discrimination case, 303 Creative LLC v. Elenis, which will weigh whether a public accommodation law to compel an artist to speak or remain silent violates the free speech clause of the First Amendment. The high court agreed in February to hear the case over whether a wedding website designer can decline to provide services to same-sex couples under Colorado’s anti-discrimination law.
Another case Jackson will hear pertains to whether Alabama’s redrawn congressional map violates the Voting Rights Act and discriminates against black voters. By a 5–4 vote, the Supreme Court halted a lower court order in February and preserved a redistricting map drawn by the Republican-held Legislature, saying it would reexamine the case in the fall term.
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During a ceremony for her Senate confirmation at the White House on Friday, Jackson pledged to decide cases with impartiality and to rule on matters independently, as Republicans on the Senate Judiciary Committee have spent hours in recent weeks inquiring over her “judicial philosophy” and experience as a public defender.
“In every instance, I have done my level best to stay in my lane and to reach a result that is consistent with my understanding of the law and with the obligation to rule independently without fear or favor,” Jackson said.
