By David B. Rivkin, Jr., and Andrew M. Grossman
February 28, 2021, in the Wall Street Journal
Judge Ketanji Brown Jackson is known as a capable, diligent and collegial jurist. Hers isn’t the straightforward ascent of most Supreme Court nominees. After a clerkship with Justice Stephen Breyer, she spent a decade as what she called a “professional vagabond”—a junior litigator at a Washington firm; an associate of Kenneth Feinberg, the lawyer known for administering compensation funds for victims of terrorism and other disasters; an assistant special counsel for the Sentencing Commission. She would be the first justice to have served as a public defender. One gets the reassuring sense that, like Clarence Thomas, Judge Jackson hasn’t had her sights trained on a Supreme Court nomination since law school.
The same could be said of Judge Jackson’s time on the bench. As a federal trial court judge in the District of Columbia (2013-21), she oversaw a docket consisting largely of run-of-the-mill employment disputes, contract cases, freedom-of-information actions, criminal prosecutions and the like. Her opinions are generally workmanlike, making it easy to discern the rare case that inspired her passion.
At the top of that list is her decision ordering then-President Trump’s former White House counsel Don McGahn to testify before a House committee investigating purported Russian interference with the 2016 election. Judge Jackson rejected out of hand Mr. Trump’s assertion of a kind of immunity from testimony recognized by the courts for well over a century. “Presidents are not kings,” she wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
The decision rejects—and describes as “strident”—the government’s argument that parties generally need authorization from Congress to bring suit in federal court. Congress did authorize suits over Senate subpoenas, but not House suits. What may seem an arcane procedural point speaks volumes: Much judicial mischief has involved courts appointing themselves to exercise power and impose liability in the absence of any law. Judge Jackson’s rationale, echoing those of many Warren and Burger court decisions, is that the Constitution empowers courts to vindicate “intrinsic rights.”
Also revealing is Judge Jackson’s decision blocking a Trump policy expanding eligibility for “expedited removal” to aliens who have been in the country illegally for up to two years. The statute gives the Homeland Security Department “sole and unreviewable discretion” over expedited removal, which should give the courts nothing to review. Judge Jackson asserted that although the policy itself was unreviewable, she could pass judgment on the “manner” in which the agency made it. She found it lacking based on the agency’s failure to engage in notice-and-comment rulemaking and its failure to consider adequately the “downsides of adopting a policy that, in many respects, could significantly impact people’s everyday lives in many substantial, tangible, and foreseeable ways”—which would seem to be a consideration of policy, not manner. The U.S. Court of Appeals for the D.C. Circuit reversed this ruling.
Judge Jackson was also reversed in a case in which she sided with federal-employee unions challenging presidential directives to streamline collective-bargaining terms, limit time spent on union business during work hours, and make it easier to fire employees for misconduct or unacceptable performance. Her decision bends over backward to excuse the unions from the requirement that they bring disputes to the Federal Labor Relations Authority before going to court, and the D.C. Circuit reversed it on that basis. But her take on the merits also raises concerns. In her view, the government’s general duty to bargain and negotiate “in good faith” precludes the government from taking topics off the bargaining table (like the availability of grievance proceedings for outright employee misconduct). She acknowledged that position went well beyond the governing precedent. While that would be a boon to the unions, it would disable presidential control of the federal workforce to account for changing circumstances.
Since joining the D.C. Circuit in June 2021, Judge Jackson has handed down only two opinions on the merits, both in the past month. The first, in another federal-union case, is notable. Siding again with the union, Judge Jackson rejected an FLRA decision holding that collective bargaining is required only for workplace changes that have a “substantial impact” on conditions of employment, as opposed to the much lower “de minimis” standard that had previously prevailed. The opinion concludes that the agency failed to explain adequately its adoption of the new standard—a holding that rests on what legal scholar Jonathan Adler called an “erroneous and unduly strict” application of Supreme Court precedent imposing a light burden on agencies changing their policy positions. They need merely “display awareness” of the change and identify “good reasons for the new policy.” To this, Judge Jackson’s opinion adds the requirement, which the Supreme Court had rejected, that the agency show the new policy to be better than the old one.
After reviewing so many of Judge Jackson’s judicial opinions, we have no doubt of her capabilities. We can’t discern whether she has any cognizable judicial philosophy that would guide her approach to the sort of fraught legal questions that the Supreme Court confronts term after term. Her loudest advocates are confident that she’ll serve them well, and her record supports that view. With 50 Democratic senators, that may be enough.
Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.
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