In the days since Ketanji Brown Jackson was named as President Joe Biden’s pick to replace Justice Stephen Breyer at the high court, we’ve heard a lot about her education, her background in drama and debate, the career path that brought her to the federal courts, and her approach to the law. But in an episode of Amicus last week, we talked with a former clerk of Jackson’s, Olivia Warren, and to Slate’s Mark Joseph Stern, about how Jackson approaches judging—as a trial court judge; as someone who cherishes the values of civility and bipartisanship prized by Breyer, for whom she clerked; and as someone with a background in indigent defense.
The qualities Jackson will bring to the court, as a working mother and as someone with a fundamentally optimistic view of the world, may not ultimately change vote tallies, but they may bring crucial new perspectives to the work of the court. Our conversation has been edited for clarity.
Olivia Warren: Judge Jackson approaches every opinion with the clear intention that anyone can access it, read it, and understand it. And I think that’s what is so extraordinary about her as a jurist. It’s something that is deep-seated in her commitment to public service, and through her family’s commitment to service.
So she sees judging as a service to the American public. Her work ethic is about not just getting it right. It’s about showing her work and, critically, it’s about making sure that the opinion makes sense. The clerks have shared, in our letter in support of her last confirmation, that her final step in editing every opinion is really extraordinary, particularly in some of her lengthy opinions. She stands and she reads them aloud because each sentence needs to make sense to anyone who would hear it. And I think exactly what we need from the judiciary.
Dahlia Lithwick: One of the things that I think matters is that Judge Jackson sat as a trial court judge and—other than Justice Sonia Sotomayor—we don’t actually have anyone on the Supreme Court who has done this work. And I know that the federal court in D.C. is a very strange court. It’s very technocratic. There’s often complicated agency, administrative, and executive power issues. What does it mean to have a trial court judge elevated to the Supreme Court?
Mark Joseph Stern: So I have a pet theory that trial court judges have a baseline of competence that is all too often missing among the philosopher kings and queens of the appellate courts. These are folks in the appellate courts who often were just professors or lawyers for big corporations, or movement lawyers, especially on the right. And they join an appellate court and they just opine about how the law should be and hand down these grand pronouncements, but in trial court, judges don’t have that luxury. They have to sit there and conduct a real, honest-to-God trial and follow the rules so closely that the folks above them will not reverse them on something big or small. They have to play very closely by the rules. They have to figure out and memorize the rule book and apply it in a way that is rigorous and fair.
And I just think that’s a harder job than being an appellate court judge. It might not be as flattering to one’s ego, but I think it requires a lot of practical knowledge and application of that knowledge in a really, again, rigorous and thoughtful way. And from what I’ve seen, Judge Jackson did that beautifully in her seven years or so on the federal court in D.C. She seems to have conducted trials very fairly. You do not see a high reversal rate, especially in cases where there was a trial. You don’t see the D.C. circuit repeatedly smacking her down for violating this or that rule. This is a pretty difficult job, and the fact that she was able to do it for so long, and do it so well and win the admiration of so many of her colleagues and even her superiors on the D.C. circuit, that all suggests to me that she is the right person for this spot.
Justice Stephen Breyer is so well known as a verbose individual who certainly never served on a trial court, and who often spends many minutes just waxing poetic and many pages just philosophizing and theorizing. And I doubt we should expect that from Judge Jackson, based on her opinions. She seems to be like, “All right, here’s the facts, let’s apply them. Here’s the law. Let’s figure out what the right result has to be.” Justice Sotomayor does that as well. And it really shines through in her work. It’s a rare thing on today’s Supreme Court, and it would be lovely if Justice Ketanji Brown Jackson could bring that same perspective and same style to a court that can too often get mired in its own navel-gazing about the law, too often forgets that there are real people in these cases before them. And that there will be real consequences. In most of these cases, a trial court judge started the whole thing off and did the real work at the ground level and produced the record that the justices are then reviewing.
Dahlia Lithwick: Judge Jackson clerked for Justice Breyer, and she shares so many qualities with him, qualities that are throwaway words like civility and grace and pragmatism. But she really has lived her life eschewing being a bomb-thrower and turning away from the opportunity to score quick points. And that does feel like a really Breyer-ish quality. It’s just a way of approaching life, that it’s about doing the work. And I get the sense that above all things, what Judge Jackson prizes is some of those qualities in Justice Breyer about getting the work done, staying away from flamboyant argumentation, and civility. These feel like really old-fashioned, almost invisible qualities at the judiciary now. But I don’t think she’s just talking.
Olivia Warren: It is not just talk. It is absolutely the way Judge Jackson walks through the world. She is someone who, because of all of these different worlds that she’s lived in herself, and because of all of the different worlds that people she loves and has learned from exist in, she comes with such curiosity and without a lot of assumptions, when she meets people. She really asks questions because she wants to hear what you have to say. It’s an extraordinary quality. And she builds consensus through that real probing, genuine sense of interest in other people. These qualities you described sound old-timey, but really are represented in how she approaches people. I’ll say, as a law clerk, very few people have ever made me feel as good about myself and as valued as Judge Jackson did. And she does that for everyone in a room.
Dahlia Lithwick: Judge Jackson worked on the Sentencing Commission. She worked as a public defender. She was instrumental in reducing the crack/cocaine disparity. As you mentioned, she walked away from a very nice law firm job to do it. And it means that she’s the first justice since Thurgood Marshall to do very serious, very focused work on defending indigent criminal defendants. Mark, you have written so often over the years about the asymmetry at the court and how few justices really have deep legal experience with regard to sentencing, with regard to indigent defendants, and with regard to the carceral system at large. Is there a way in which the background she brings to bear could somehow inflect the way the court looks at criminal justice issues?
Mark Joseph Stern: We can only hope. I could only hope that, say, during oral arguments at conference, in opinions, she can bring that perspective to the table and at least force some of her colleagues, people like Sam Alito, who just are overtly hostile to all criminal defendants, force them to see the humanity of these individuals and to understand just how poorly the system treats them and how unfair the system is. For example, to say in an ineffective assistance of counsel case that the lawyer who fell asleep for 20 minutes probably did miss some big stuff that might have changed the outcome of the case, or that the lawyer who failed to object to some obvious confrontation clause violation probably did ensure their client’s conviction through their own stupidity.
That’s the kind of stuff that the conservative justices say, “Oh, it doesn’t really matter. These people got a trial or whatever. They got a fair shake. They had a public defender for 10 minutes who helped them plead down from 20 to 15 years. They got what they deserved.” I can only hope that Judge Jackson can step in and say, “Excuse me. I was that person there given five minutes to do that plea bargain, and I would like to explain to you just how badly the deck is stacked here and how crucial it is that we use our authority to intervene and shift that power imbalance a bit, because if the Supreme Court doesn’t do it, nobody will.”
Dahlia Lithwick: For the first time in history, we could have two mothers on the Supreme Court. Jackson is the parent to two teens, and Amy Coney Barrett has many children. I want to ask you the deep, heartfelt question about how this balancing act of being a mother and a working professional expressed itself as you were clerking for Judge Jackson. And as the mother of a new little guy yourself, how has she modeled for you how to do this work—driving around long distances, being a lawyer, coming home, having a baby, having a partner, all of it?
Olivia Warren: Well, when I was in chambers, I was for a time the only person who did not have a child. So Judge Jackson has two children, her career clerk has two children, and my co-clerk had a then-3-year-old and was also pregnant for eight months of her clerkship with her second child. So I saw on so many dimensions how Judge Jackson really takes public service very literally and broadly. I think, in terms of the day-to-day, it promoted a lot of efficiency. She supports her family, she’s present for them. And she prioritizes work and works very hard and long hours as many of us in the legal profession do. But there’s no pride or value in staying late or adding to the labor, particularly when we all have other labor that we are doing for our communities and for society that is often forgotten as labor.
As a new parent, becoming a parent has imbued me with a sense of compassion that I couldn’t access before—perhaps part of my own limitations, but I think I’ve realized how much is out of my control. And I think that she understands that. That we are all people with lives, with things within our control and not within our control.
Dahlia Lithwick: This is a really fascinating moment to come to the bench with the ability to imagine walking in someone else’s shoes. Is there an amazing amount of pain in store for somebody who is really good at thinking about others, thinking about how other folks are feeling? What is she going to bring to the court in a moment when you have some justices who are very proud about saying they don’t read media from the other side, they don’t speak to the other side, they have no interest in impacts on the other side?
Liv Warren: One of the most lasting things that I’ve taken away from my time with Judge Jackson is that she has seen so much of the world through her own experiences and through her deep interest in the experience of others. And she comes back to the work every day with joy. It’s remarkable. When I am burnt out and tired and I cannot see the light, I honestly think about how Judge Jackson still can. And she’s 51 and I’m 33. So I’ve got to keep at it for at least another 18 years. The way that she processes difficulty is returning to the work. She does not have time for disillusionment and for bitterness and for despair.