By Andrew Chung and John Kruzel
WASHINGTON (Reuters) – In December, during a heated U.S. Supreme Court oral argument involving a collision between free speech protections for business owners and LGBT rights, liberal Justice Ketanji Brown Jackson, who had joined the bench only about two months before, raised the most memorable question of the day.
Jackson, the first Black woman to serve on the top U.S. juridical body, suggested to a lawyer for Lorie Smith, a Christian web designer from Colorado seeking a right to refuse to design websites for same-sex marriages, that the case could be a slippery slope.
A win for Smith, Jackson said, could allow a professional photographer to exclude Black children from a nostalgic Christmas photo with Santa Claus styled after the 1940s – a time of racial segregation in parts of the United States – because “they’re trying to capture the feelings of a certain era,” Jackson said.
After pressing the example, Kristen Waggoner, Smith’s attorney, responded that “there are difficult lines to draw and that may be an edge case.”
As the court’s current term nears its end, Jackson, appointed by Democratic President Joe Biden last year, has earned a reputation as an assertive presence with a bit of an independent streak, willing to ask tough questions and to decide cases with her fellow liberals or at times with the majority conservatives.
According to legal scholar Adam Feldman, who tracks court data, Jackson spoke more during oral arguments than any of the other current justices during their first terms.
“She’s just showed up from day one,” said Terry Maroney, a Vanderbilt Law School professor who studies judicial decision-making and behavior. “She knows what she’s doing, she’s not shy, she’s posing uncomfortable hypotheticals – and she’s not afraid to do those things even if it’s causing discomfort.”
Some of the major cases have yet to be decided – including Smith’s case and the fate of race-conscious university student admissions policies that for decades have boosted the number of underrepresented minorities on American campuses – with more rulings expected on Thursday.
The addition of Jackson, a former federal trial and appellate court judge, did not change the ideological make-up of the court, whose muscular 6-3 conservative majority has shown a willingness to rapidly change the law. Jackson succeeded fellow liberal Justice Stephen Breyer.
Last year, rulings powered by the conservative justices ended recognition of a constitutional right to abortion and widened gun rights. This term, they ruled against the Environmental Protection Agency in a case that could leave wide swathes of sensitive wetlands unprotected by a landmark anti-pollution law.
The term also has included several rulings that surprised scholars and court watchers, with conservative justices joining the liberals in rejecting race-based challenges to a federal voting rights law that protects minorities and an adoption law governing Native American children.
‘VERY SELF-AWARE’
Boston College constitutional law expert Kent Greenfield said Jackson’s presence on the bench may have helped shape those rulings in part by bringing a different life experience to the table.
“She’s a person of heft, a person of high intellect and she’s not being quiet,” Greenfield said. “She’s very self-aware of the role she’s playing.”
Some of her questions during oral arguments have stood out.
In one of the cases challenging affirmative action policies in collegiate admissions, Jackson suggested that barring any consideration of race could prevent a student who descends from slaves, compared to one who is not, from having his family history honored and credited “because his story is in many ways bound up with his race and with the race of his ancestors.”
“My sense is she will have a disproportionate amount of influence over her colleagues, especially with the question of race,” Greenfield said.
Jackson has voted alongside fellow liberal Justices Sonia Sotomayor and Elena Kagan in several cases, but also has diverged from them including in May when she dissented from a decision backing an animal-welfare law in California, and last week when she joined a ruling making it easier to deport immigrants convicted of certain crimes.
Roman Martinez, a former law clerk for conservative Chief Justice John Roberts who frequently argues cases at the court, said Jackson’s first term has been impressive, calling her very active and extremely prepared.
“She has also shown an independent streak, willing to break from the more liberal wing of the court and articulate her own views in solo opinions or by teaming up” with conservative Justice Neil Gorsuch, Martinez said.
As the first former public defender ever to serve on the Supreme Court, Jackson has distinguished herself in her handling of criminal justice matters, authoring at least seven pro-defendant dissenting opinions this term in argued cases, appeal denials and emergency applications.
“She’s made her personality and priorities and intellect known very quickly on the bench this year,” Maroney said.
(Reporting by Andrew Chung in New York and John Kruzel in Washington; Editing by Will Dunham)
