By the end of June or early July, Americans will learn the outcome of a remarkable number of major cases in the U.S. Supreme Court. They also may learn more about the Court’s newest justices: Ketanji Brown Jackson and Amy Coney Barrett.
The two women are bookends on the high court bench. As you face the bench, Barrett sits on the extreme left and Jackson on the extreme right. Jackson, 53, is the most recent addition to the court. Nominated by President Joe Biden, Jackson took her seat on June 30, 2022. Barrett, 52 and nominated by former President Donald Trump, assumed her office on October 27, 2020.
Over the years, some justices have said it takes three to five years, or longer, before a new justice feels comfortable in the job. Barrett appears to have found her voice in this term in particular. During oral arguments, her questions are sharp and relevant; she doesn’t hesitate to press advocates to answer and not dodge her questions, and she often follows up a colleague’s question to deepen the conversation.
Perhaps because of her background and experience as a trial judge, Jackson jumped right into the action on the bench. She indirectly challenged Justice Clarence Thomas’s view of history and his originalism in a voting rights case this term. And they went head to head—he in the majority and she in dissent—in last term’s decision ending affirmative action in college admissions programs. Jackson is a frequent and persistent questioner, and, as the former trial judge that she was, a stickler for what is in the lower court’s record and fact findings.
One long time court watcher and scholar recently posted on the social media site “X”:
“This might be a small club, but I often find myself impressed by the opinions and oral argument questions of both of the Court’s two newest members—Justice Barrett and Justice Jackson. They’re both thoughtful and independent; they each bring a lot to the Court. And yes, there are times when I disagree with each of them. But agreement with me is not my test, so that doesn’t change the point. :)”
What have we learned about Barrett thus far? She is generally a reliable conservative vote. She has shown flashes of independence in recent terms. For example, in the decision concerning Trump’s eligibility to be on the primary ballot in Colorado, she agreed that the state could not remove him from the ballot under Section 3 of the 14th Amendment, but she criticized her conservative colleagues for deciding more than was necessary to resolve the case and her liberal colleagues for their “stridency.”
Last week, Barrett, who calls herself an “originalist,” disagreed with Thomas’s claim that “history and tradition” settle the constitutionality of the names clause in a trademark law. She called his approach “wrong twice over.” And she has shown a restraint not always shown by her conservative colleagues. In a decision involving a Catholic foster agency’s refusal to consider same-sex couples, she declined to overrule a prior religious freedom decision long sought by conservative religious and political groups, especially, she said, when she didn’t know yet what would replace it.
But it’s important to remember that Barrett, with only two terms on the Court, voted to overrule Roe v. Wade in 2022, and before that in 2021, she joined the conservative majority (Chief Justice John Roberts Jr., dissenting, as did three liberals) in refusing to temporarily halt Texas’s six-week abortion ban.
And what about Jackson? Jackson has shown a keen interest and belief in what the proper role of the Court should be. In the recent decision upholding the funding mechanism for the Consumer Financial Protection Bureau, Jackson wrote, “that ‘[w]hen the Constitution's text does not provide a limit to a coordinate branch's power, we should not lightly assume that Article III implicitly directs the judiciary to find one.’ The separation of powers ‘applies with just as much force to the Judiciary as it does to Congress and the Executive.’”
In Labrador v. Poe, also this term, Idaho filed an emergency application asking the Court to lift a lower court order blocking its state law prohibiting certain medical treatments for transgender minors. The court’s six conservatives granted the state’s request. Jackson dissented, writing: “We do not have to address every high-profile case percolating in lower courts, and there are usually many good reasons not to do so.”
Restraint, Jackson argued, should be the default. “This Court will almost certainly have a chance to consider the entirety of this case soon, whoever prevails below. In the meantime, it is far better for all concerned to let the lower courts proceed unfettered by our intervention.”
Jackson also appears to have more faith than her conservative colleagues do in federal agencies’ expertise and ability to deal with complex regulatory issues. The justices will decide shortly whether to overrule a decades-old decision that requires federal courts to defer to a federal agency’s reasonable interpretation of an ambiguous rule or statute that it administers. Overruling the so-called Chevron decision would be a seismic change for agencies and courts with potential impacts on a wide swath of regulations affecting everyday lives.
During arguments in the Chevron case, Justice Neil Gorsuch characterized the outcome of Chevron as “government always wins.” But Justice Jackson countered that by saying Chevron also protects us from courts becoming policymakers and policymakers in areas with which it has little or no expertise.
Jackson also occasionally injects a fresh perspective on a case during oral arguments. In this term’s challenge by Trump claiming absolute immunity from criminal prosecution, many of the justices and Trump’s lawyer focused on the chilling effect a lack of immunity would have on a president’s work. But Jackson said she worried that a grant of immunity threatened to turn the Oval Office into a “seat of criminality.”
The Court has much to do before it breaks for the summer, and there are growing doubts whether it will finish its work by the traditional end of June. Nevertheless, it will finish, and we will soon learn what role, if any, Jackson and Barrett will play in cases involving Trump immunity, guns and domestic violence protection orders, Chevron, social media and the First Amendment, restrictions on the homeless, abortion care and more.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
