Judge Ketanji Brown Jackson, flanked by President Biden and Vice President Harris (Carolyn Kaster/AP Images)

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Vacancy on the Court

Will President Biden’s first nominee to the Supreme Court win confirmation?

April 4, 2022
By Patricia Smith

Supreme Court confirmations are always contentious these days—after all, there’s a lot at stake when you’re appointing someone to a powerful lifetime position. And the one for Ketanji Brown Jackson, despite its historic nature, will likely be no different.

The nomination of Jackson, who if confirmed would be the first Black woman to serve as a justice, is President Biden’s first opportunity to shape the nation’s highest court.

Jackson, 51, a judge on the U.S. Court of Appeals for the District of Columbia circuit, would replace Justice Stephen G. Breyer, who in January announced his plan to retire when the current term ends in June. Jackson grew up in Miami and attended Harvard College and then Harvard Law School. She was a clerk for Justice Breyer. If confirmed, she would also be the first justice to have worked as a public defender—an attorney who represents criminal defendants who can’t afford to hire legal counsel.

Confirming a new Supreme Court justice is always a battle these days. After all, there’s a lot on the line when you’re appointing someone to a powerful lifetime position. The confirmation for Ketanji Brown Jackson is historic. Still, it will likely be no different.

The nomination of Jackson is President Biden’s first chance to shape the nation’s highest court. If confirmed, she would be the first Black woman to serve as a justice.

In January, Justice Stephen G. Breyer announced his plan to retire when the current term ends in June.  Jackson, 51, would replace him. She currently serves as a judge on the U.S. Court of Appeals for the District of Columbia circuit. Jackson grew up in Miami. She attended Harvard College and then Harvard Law School. She was a clerk for Justice Breyer. Jackson also was a public defender. That’s an attorney who represents criminal defendants who can’t afford to hire legal counsel. If confirmed, she would be the first justice to have worked as a public defender.

‘We’ll have a perspective on the Court that we’ve never had before.’

Jackson’s confirmation wouldn’t change the ideological balance of the Court, which now has a solid conservative majority (see “Meet the Supremes,” below). But she would bring a different lens to the Court and she’d likely serve for decades to come, experts say.

“You can’t read the Constitution without bringing something of who you are to it, because the text doesn’t interpret itself,” says Rebecca Brown, a law professor at the University of Southern California. “So to bring someone in who has a different life experience, that means we’ll have a perspective on the Court that we’ve never had before.”

During his four years in the White House, then-President Donald Trump appointed three justices, transforming what had been a closely divided Supreme Court into one that could make substantial changes in the law on a number of controversial social issues (see “Hot-Button Cases,” below).

The Court now has a solid conservative majority. Jackson’s confirmation wouldn’t change that balance (see “Meet the Supremes,” below). But she would bring a different lens to the Court, and she’d likely serve for decades to come, experts say.

“You can’t read the Constitution without bringing something of who you are to it, because the text doesn’t interpret itself,” says Rebecca Brown, a law professor at the University of Southern California. “So to bring someone in who has a different life experience, that means we’ll have a perspective on the Court that we’ve never had before.”

During his four years in the White House, then-President Donald Trump appointed three justices. That transformed what had been a closely divided Supreme Court into one that could make major changes in the law on a range of debated social issues (see “Hot-Button Cases,” below).

Meet the Supremes

The nine justices are appointed by the president, confirmed by the Senate, and serve life terms

Erin Schaff/Pool/AFP via Getty Images

Brett Kavanaugh, 57, leans conservative, appointed by Donald Trump in 2018. Elena Kagan, 61, leans liberal, appointed by Barack Obama in 2010. Neil M. Gorsuch, 54, leans conservative, appointed by Donald Trump in 2017. Amy Coney Barrett, 50, leans conservative, appointed by Donald Trump in 2020. Samuel A. Alito Jr., 72, leans conservative, appointed by George W. Bush in 2006. Clarence Thomas, 73, leans conservative, appointed by George H. W. Bush in 1991. Chief Justice John G. Roberts Jr., 67, leans conservative, appointed by George W. Bush in 2005. Stephen G. Breyer, 83, leans liberal, appointed by Bill Clinton in 1994, retiring in June. Sonia Sotomayor, 67, leans liberal, appointed by Barack Obama in 2009

Brett Kavanaugh, 57, leans conservative, appointed by Donald Trump in 2018. Elena Kagan, 61, leans liberal, appointed by Barack Obama in 2010. Neil M. Gorsuch, 54, leans conservative, appointed by Donald Trump in 2017. Amy Coney Barrett, 50, leans conservative, appointed by Donald Trump in 2020. Samuel A. Alito Jr., 72, leans conservative, appointed by George W. Bush in 2006. Clarence Thomas, 73, leans conservative, appointed by George H. W. Bush in 1991. Chief Justice John G. Roberts Jr., 67, leans conservative, appointed by George W. Bush in 2005. Stephen G. Breyer, 83, leans liberal, appointed by Bill Clinton in 1994, retiring in June. Sonia Sotomayor, 67, leans liberal, appointed by Barack Obama in 2009

A 50-50 Senate

As with any vacancy on a federal court, President Biden’s nominee must win confirmation from a majority of the Senate’s 100 members. An ideological battle erupted almost immediately over the nomination, with Democrats arguing it was about time for the Supreme Court to look more like America.

“With her exceptional qualifications and record of evenhandedness, [she] will be a justice who will uphold the Constitution and protect the rights of all Americans, including the voiceless and vulnerable,” said Senator Chuck Schumer, Democrat of New York and the Senate majority leader.

As with any vacancy on a federal court, President Biden’s nominee must win confirmation from a majority of the Senate’s 100 members. The nomination immediately sparked a political battle. Democrats argued that it was about time for the Supreme Court to look more like America.

“With her exceptional qualifications and record of evenhandedness, [she] will be a justice who will uphold the Constitution and protect the rights of all Americans, including the voiceless and vulnerable,” said Senator Chuck Schumer, Democrat of New York and the Senate majority leader.

Federal court nominees need to win confirmation from a majority of the Senate’s 100 members.

Republican leaders promised a “respectful” confirmation process, but some argued that her views were too liberal for the Court.

“We must not blindly confirm a justice to serve as a rubber stamp for a radical progressive agenda,” said Senator Marsha Blackburn, a Republican of Tennessee.

Democrats said they intend to move quickly through the confirmation process and schedule a vote by early April. One reason for the urgency: Democrats hold a bare 50-seat majority in the Senate. It’s considered a majority because Vice President Kamala Harris, a Democrat, can provide the tie-breaking vote if the Senate is evenly split. Democrats would lose control if even one Republican wins a seat currently held by a Democrat in November’s midterm elections.

Republican leaders promised a “respectful” confirmation process. But some of them argued that her views were too liberal for the Court.

“We must not blindly confirm a justice to serve as a rubber stamp for a radical progressive agenda,” said Senator Marsha Blackburn, a Republican of Tennessee.

Democrats said they will move quickly through the confirmation process. They plan to schedule a vote by early April. One reason for the urgency: Democrats hold a bare 50-seat majority in the Senate. It’s considered a majority because Vice President Kamala Harris, a Democrat, can provide the tie-breaking vote if the Senate is evenly split. Democrats would lose control if even one Republican wins a seat currently held by a Democrat in November’s midterm elections.

Balance of Power

In the meantime, if a Democratic senator became sick or died, it would deprive Democrats of a majority, which could endanger Jackson’s confirmation. In January, Senator Ben Ray Luján, a 49-year-old Democrat of New Mexico, was hospitalized after having a stroke. Nine Senate Democrats are 75 or older, and three of them are in their 80s.

The Court now has six conservative-leaning and three liberal-leaning justices. Breyer is the most senior of the three liberals, and Jackson would likely have a similar judicial philosophy. But that doesn’t mean the change wouldn’t be significant. It would be the first time women sat in four of the Court’s nine seats.

“Every time there’s a new justice appointed to the Court, it’s a new Court,” says Lee Epstein, a law professor at Washington University in St. Louis. “It’s a small committee of nine people, and when you replace one, that can change the dynamics.”

One place the dynamics have already changed is the Senate. Supreme Court nominees used to be confirmed by broad bipartisan majorities. In 1994, Breyer was confirmed 87-9. In today’s super-partisan politics, that kind of across-the-aisle support is unthinkable. Former President Barack Obama’s last nominee got only a handful of Republican votes. And the last two justices Trump appointed were confirmed with a total of just one Democratic vote. Some lawmakers regret that shift and are hoping there is more bipartisan support for Jackson.

“I really think it would be harmful to the country to have a repeat of what we saw with the last two nominees being so narrowly confirmed,” says Senator Susan Collins, Republican of Maine. “I just don’t think that is good for the country, nor the Court.”

In the meantime, if a Democratic senator became sick or died, it would keep Democrats from having a majority. That could be a threat to Jackson’s confirmation. In January, Senator Ben Ray Luján, a 49-year-old Democrat of New Mexico, was hospitalized after having a stroke. Nine Senate Democrats are 75 or older, and three of them are in their 80s.

The Court now has six conservative-leaning and three liberal-leaning justices. Breyer is the most senior of the three liberals. Jackson would likely lean liberal as well. But that doesn’t mean the change wouldn’t be significant. It would be the first time women sat in four of the Court’s nine seats.

“Every time there’s a new justice appointed to the Court, it’s a new Court,” says Lee Epstein, a law professor at Washington University in St. Louis. “It’s a small committee of nine people, and when you replace one, that can change the dynamics.”

One place the dynamics have already changed is the Senate. Supreme Court nominees used to be confirmed by sweeping bipartisan majorities. In 1994, Breyer was confirmed 87-9. In today’s super-partisan politics, that kind of across-the-aisle support is unthinkable. Former President Barack Obama’s last nominee got only a handful of Republican votes. And the last two justices Trump appointed were confirmed with a total of just one Democratic vote. Some lawmakers regret that shift and are hoping there is more bipartisan support for Jackson.

“I really think it would be harmful to the country to have a repeat of what we saw with the last two nominees being so narrowly confirmed,” says Senator Susan Collins, Republican of Maine. “I just don’t think that is good for the country, nor the Court.”

With reporting by Michael D. Shear, Carl Hulse, and Charlie Savage of The Times.

With reporting by Michael D. Shear, Carl Hulse, and Charlie Savage of The Times.

Adam Glanzman/Bloomberg via Getty Images

Demonstrators protest against Harvard’s admissions policies, 2018.

Hot-Button Cases

A look at a few important rulings expected from the Supreme Court this term

Students for Fair Admissions v. President & Fellows of Harvard College

A group of students is challenging admissions policies at two elite colleges that take a candidate’s race into consideration, alleging that these policies have discriminated against Asian American applicants. Affirmative action refers to preferences based on race that have long been used in education to compensate for the effects of past discrimination. Starting with the Regents of the University of California v. Bakke decision in 1978, the Court has repeatedly upheld the use of affirmative action in college admissions. But with three new conservative justices appointed since the last major case was heard in 2016, experts say there’s a greater likelihood now that the Court could decide to greatly curtail or end the practice.

New York State Rifle and Pistol Association v. Bruen

This challenge of a New York State law that places strict limits on carrying guns outside the home is the first Second Amendment case the Court has considered since 2010. In 2008, in District of Columbia v. Heller, the Court ruled for the first time that the Second Amendment protects an individual’s right to keep a gun at home for self-defense and not just the right of a militia to bear arms. A second Supreme Court case two years later extended that right to people in all the states, not just those who live in D.C. Several of the justices appointed to the Supreme Court since then are strong defenders of gun rights. If the Court finds these restrictions unconstitutional, it could mean the end of a wide variety of gun-control laws.

Dobbs v. Jackson Women’s Health Organization

This case involves a challenge to a 2018 Mississippi law that bans most abortions after 15 weeks of pregnancy. Since the 1973 ruling Roe v. Wade, which legalized abortion nationwide, it’s been the Court’s position that until a fetus reaches the point of development where it’s able to survive outside the womb (usually about 24 weeks), a woman has the right to decide to end her pregnancy. For decades, many conservatives have been working to overturn Roe v. Wade. Many legal analysts think the Supreme Court, with its 6-3 conservative majority, could use the current case to do that and eliminate the right to an abortion on the federal level. If that were to happen, individual state laws would govern whether citizens have a right to get an abortion in that state.

Students for Fair Admissions v. President & Fellows of Harvard College

A group of students is challenging admissions policies at two elite colleges that take a candidate’s race into consideration, alleging that these policies have discriminated against Asian American applicants. Affirmative action refers to preferences based on race that have long been used in education to compensate for the effects of past discrimination. Starting with the Regents of the University of California v. Bakke decision in 1978, the Court has repeatedly upheld the use of affirmative action in college admissions. But with three new conservative justices appointed since the last major case was heard in 2016, experts say there’s a greater likelihood now that the Court could decide to greatly curtail or end the practice.

New York State Rifle and Pistol Association v. Bruen

This challenge of a New York State law that places strict limits on carrying guns outside the home is the first Second Amendment case the Court has considered since 2010. In 2008, in District of Columbia v. Heller, the Court ruled for the first time that the Second Amendment protects an individual’s right to keep a gun at home for self-defense and not just the right of a militia to bear arms. A second Supreme Court case two years later extended that right to people in all the states, not just those who live in D.C. Several of the justices appointed to the Supreme Court since then are strong defenders of gun rights. If the Court finds these restrictions unconstitutional, it could mean the end of a wide variety of gun-control laws.

Dobbs v. Jackson Women’s Health Organization

This case involves a challenge to a 2018 Mississippi law that bans most abortions after 15 weeks of pregnancy. Since the 1973 ruling Roe v. Wade, which legalized abortion nationwide, it’s been the Court’s position that until a fetus reaches the point of development where it’s able to survive outside the womb (usually about 24 weeks), a woman has the right to decide to end her pregnancy. For decades, many conservatives have been working to overturn Roe v. Wade. Many legal analysts think the Supreme Court, with its 6-3 conservative majority, could use the current case to do that and eliminate the right to an abortion on the federal level. If that were to happen, individual state laws would govern whether citizens have a right to get an abortion in that state.

Art Lien

A court artist sketch of a recent oral argument; cameras aren’t allowed in the courtroom.

Anatomy of a Supreme Court Case

How do cases get to the Court, and what happens when they do?

1. Where Do Cases Come From?

Both criminal and civil cases originate in either a state or federal court in a local jurisdiction. From there, they can be appealed to an appeals court. A decision by a state Supreme Court in a state case or by a U.S. Court of Appeals in a federal case can be appealed to the U.S. Supreme Court. But that doesn’t mean the justices will agree to hear it.

1. Where Do Cases Come From?

Both criminal and civil cases originate in either a state or federal court in a local jurisdiction. From there, they can be appealed to an appeals court. A decision by a state Supreme Court in a state case or by a U.S. Court of Appeals in a federal case can be appealed to the U.S. Supreme Court. But that doesn’t mean the justices will agree to hear it.

2. Selection of Cases

Each year, thousands of cases are submitted for consideration by the Supreme Court, but the justices agree to hear fewer than 100. Unless at least four justices vote to accept a case, the ruling of the highest appeals court stands. The justices often choose cases that give them a chance to weigh in when an important constitutional question is at stake or when appeals courts in different parts of the country have issued conflicting rulings on the same topic.

2. Selection of Cases

Each year, thousands of cases are submitted for consideration by the Supreme Court, but the justices agree to hear fewer than 100. Unless at least four justices vote to accept a case, the ruling of the highest appeals court stands. The justices often choose cases that give them a chance to weigh in when an important constitutional question is at stake or when appeals courts in different parts of the country have issued conflicting rulings on the same topic.

3. Oral Arguments

Each case the Court hears is allotted one hour for oral arguments. During that time, the lawyers for both sides present their arguments, and the justices pepper them with questions. No cameras or recording devices are permitted in the courtroom during oral arguments, but the public can attend, and prior to the Covid pandemic, the chambers were nearly always full.

3. Oral Arguments

Each case the Court hears is allotted one hour for oral arguments. During that time, the lawyers for both sides present their arguments, and the justices pepper them with questions. No cameras or recording devices are permitted in the courtroom during oral arguments, but the public can attend, and prior to the Covid pandemic, the chambers were nearly always full.

4. Deliberations

Within a day or two of oral arguments, the justices meet for a straw vote—an informal poll of who stands where. If the chief justice is in the majority, he decides which justice will draft an opinion. If the chief justice is not in the majority, the most senior justice in the majority assigns the writing of the opinion. From then on, most of the justices’ communication with one another about the case is in writing. The justice writing the opinion will circulate a draft to his or her colleagues, hoping to persuade any wavering justices to join that side. The other justices respond in writing, and the process repeats, often several times.

4. Deliberations

Within a day or two of oral arguments, the justices meet for a straw vote—an informal poll of who stands where. If the chief justice is in the majority, he decides which justice will draft an opinion. If the chief justice is not in the majority, the most senior justice in the majority assigns the writing of the opinion. From then on, most of the justices’ communication with one another about the case is in writing. The justice writing the opinion will circulate a draft to his or her colleagues, hoping to persuade any wavering justices to join that side. The other justices respond in writing, and the process repeats, often several times.

5. Ruling

The Court’s term usually wraps up in June, and often the final weeks are a flurry of rulings on many cases. Rulings include a majority opinion that lays out the rationale behind the decision and, unless the decision is unanimous, a “dissent” in which the minority explains its reasons for disagreeing. Supreme Court rulings can’t be appealed, but they can be challenged and overturned by subsequent Supreme Court decisions, although that happens only rarely.

5. Ruling

The Court’s term usually wraps up in June, and often the final weeks are a flurry of rulings on many cases. Rulings include a majority opinion that lays out the rationale behind the decision and, unless the decision is unanimous, a “dissent” in which the minority explains its reasons for disagreeing. Supreme Court rulings can’t be appealed, but they can be challenged and overturned by subsequent Supreme Court decisions, although that happens only rarely.

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