Brian Baez shared an important observation today on Twitter:
“No doubt Ketanji Brown Jackson is a brilliant legal scholar. There is an art to carefully crafting language and creating persuasive lines of argumentation. She has been cited on all 3 majority opinions today. No other justice was. IMPACT.”
This is an outstanding example of the brilliance and power of this extraordinary jurist, whom President Biden elevated to the U.S. Supreme Court last year.
When Ketanji Brown Jackson was nominated, I noted that the fact that she would be in the minority did not mean she would be without.a voice: one of the most important aspects of being an appellate court judge is the ability to educate and influence the other judges on your court. She is proving me correct.
Appellate court judges don’t decide cases in a vacuum. They listen to and are influenced by each other in many ways. Strong, passionate voices and principled, intelligent arguments can sometimes convince other judges to change their minds and change their votes.
My father, the late Nathaniel R. Jones, sat on the federal U.S. Court of Appeals for the Sixth Circuit for 23 years. His colleagues – liberals, conservatives, and moderates, alike – often spoke of the influence he had on them. Whether it was the questions he asked from the bench, points and arguments he made when discussing cases in conference, the opinions he drafted, the recommended edits he made to other judges’ draft opinions when they were circulated for review and comment, or conversations he had with them at lunch, in chambers, or just walking down the hall, he was always teaching them, helping them to see things through a different lens.
This wasn’t unique to my father. Justice Sandra Day O’Connor described how she was influenced by her own colleague, Justice Thurgood Marshall:
“Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who had seen the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice. At oral argument and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
I have no doubt that Justice Jackson is having the kind of impact on some of her fellow Supreme Court justices today that my late father and Justice Marshall had on their colleagues in their day.
I don’t think it’s mere happenstance that three of the Court’s staunchly conservative members – Roberts, Kavanaugh and Barrett – joined the majority today in rejecting the Independent State Legislature theory. And it wasn’t just a happy coincidence that, a few weeks ago, Roberts and Kavanaugh helped the liberals on the Court throw out Alabama’s racially discriminatory voting map.
Justice Jackson is a brilliant thinker and a superlative judge, whose legal analyses are always spot on and who expresses herself in writing and in speech with clarity and eloquence. She has no doubt earned the respect of her fellow justices and she has surely gotten the ear of at least a few of them.
Today’s triple play – being cited in three different cases – and the outcome in two recent critical cases suggests that Justice Ketanji Brown Jackson is not only speaking truth in the quiet cloistered rooms of judicial power, but that she is being heard and heeded.