Last week, President Joe Biden followed through on his controversial promise to nominate a black woman to the U.S. Supreme Court, after Justice Stephen Breyer announced his retirement earlier this year. Biden’s nominee, Judge Ketanji Brown Jackson, was immediately celebrated by progressives, who have emphasized two aspects of the judge’s background: if confirmed, she would be the first black woman, and the first former public defender, on the Court.
According to the White House, “Judge Jackson has a unique appreciation of how critical it is for the justice system to be fair and impartial,” due to her “diverse and broad public service.” In the Washington Post, Ruth Marcus echoed this sentiment, writing that, “The more immediate significance of her arrival at the Supreme Court may be as [the] only serving justice—and the first in decades—with significant experience representing criminal defendants and grappling with the consequences of the criminal justice system on communities of color.” And in a blog post last week, Brookings senior fellow Camille Busette assured readers that Jackson’s “professional experience, particularly as a judge with a significant background as a public defender, and her personal experience as a Black woman in the United States will shape how she approaches cases before the court and how both majority and minority opinions will be framed and argued.”
Underlying the emphasis on Jackson’s race and professional background is the assumption that these are reliable predictors of judicial voting behavior and determinative of how she’ll rule on cases if confirmed—much in the same way that race and professional background are thought to influence how white former prosecutors vote as judges. But the evidence for this assumption seems weaker than Judge Jackson’s most enthusiastic supporters let on.
A 2011 paper published in The Justice System Journal by University of Alabama professor Rob Robinson found “no relationship between prosecutorial background and a propensity for favoring conservative outcomes.” While some older studies—and a new working paper by scholars at Harvard and Yale looking specifically at former public defenders—purport to find a strong association between prior professional experience and judicial decision-making, these studies often fail to control for important variables, or they assess outcomes (like verdicts and sentences) from which a Supreme Court justice is further removed. The new working paper, for example, does not control for charge type, meaning that the relatively small effect found could be at least partly explained by differences in the cases handled by the judges in the study. Moreover, many of the studies linking prosecutorial or defense experience to outcomes don’t control for ideological attitudes, which the available evidence shows more reliably predict outcomes. And on that measure, there is some evidence that Judge Jackson is ideologically closer to criminal-justice reformers than she is to law-and-order types.
If, however, Judge Jackson will reliably align herself with the interests of the criminal defendants whose cases come before the Court (a fairer assumption, given the things she’s written about the criminal-justice system), why should we assume that this would be a good thing? After all, with crime as bad as it is, now would seem an odd time to nominate a defendant-friendly “reformer” to the Court.
I imagine that the standard progressive argument would go something like this. Minorities—particularly black men—in the U.S. are overrepresented, given their share of the national population, among those arrested, prosecuted, and incarcerated. This disproportionality is both evidence of systemic racism and a significant driver of the country’s mass-incarceration problem. Having a justice on the Court who understands this will improve the prospects for jurisprudence that reduces the footprint of the criminal-justice system and moves the country closer to parity when it comes to the racial composition of criminal defendants.
Here’s what the standard progressive argument gets wrong. The reason that black men are “overrepresented” among criminal defendants and jail and prison inmates is that they are overrepresented among perpetrators (and victims) of serious crime. Broadening the scope of the Fourth Amendment (barring unlawful searches and seizures) or the Fourteenth Amendment (concerning, among other things, equal protection under the law) won’t change the factors driving this reality. And making the system more lenient for criminals won’t make life better for people living in neighborhoods that have seen homicides and shootings spike over the last few years. These crimes are almost always perpetrated by repeat offenders with long criminal histories and active criminal-justice statuses, giving the lie to the “mass-incarceration” meme. If anyone needs a louder voice in the judicial system, it’s victims.
More fundamentally, the progressive point of view on Jackson’s appointment misunderstands the proper role of a Supreme Court justice, which is to interpret and apply the law as it is written, not as the justice, by virtue of her personal experiences as a black woman or criminal defense attorney, believes it should be. Those who expect Jackson to do the latter concede their rejection of the idea that the law is akin to a Ulysses Pact—i.e., that the law is written to bind us to its meaning, much like the rope that bound Odysseus to the mast of his ship as it sailed past the Sirens was used to prevent a change in course. Interpreting the law according to its text and meaning at the time it was written functions as a source of stability and reliability that allows the citizenry to navigate society with the knowledge of what is and isn’t against the rules. A system in which the law can change based on who’s reading it undermines those ends.
In the end, what the Court needs is what it always needs: a good judge. And, contrary to the “progressive” wisdom, whether a judge is good isn’t a function of race, gender, or whether she worked as a corporate litigator, prosecutor, or public defender. Advancing the idea that these things matter more than analytical ability and commitment to the rule of law isn’t just misguided—it risks pushing one of the country’s most important institutions deeper into the political fray, where it doesn’t belong.
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