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Ketanji Brown Jackson

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"[T]he primary takeaway from the past 250 years of recorded American history is that Presidents are not kings." - Ketanji Brown Jackson, writing in the 2019 case of In re: Don McGahn.

Ketanji Brown Jackson (born September 1970) is an Associate Justice of the US Supreme Court. She is the first Black woman to sit on the highest court in the US.

Prior to her appointment to the Supreme Court, she served as a circuit judge on the US Court of Appeals for the DC Circuit from 2021 to 2022, and from 2013 until 2021 she served as a judge for the US District Court for the District of Columbia. Before her appointment as a judge, Jackson completed a Supreme Court clerkship with Justice Stephen Breyer and was an editor on the Harvard Law Review.

Jackson was nominated for the Supreme Court by President Joe Biden on February 25, 2022 to fill the associate justice vacancy created by Breyer's retirement. The Senate confirmed her appointment on April 7th, and she was sworn in on June 30th.

Quotes

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Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself.
As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision. For, like our democracy, our Constitution is “the creature of their will, and lives only by their will.”

2010s

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Committee on the Judiciary, United States House of Representatives, Plaintiff, v. Donald F. McGahn II, Defendant. (Nov 25, 2019)

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Jackson's Memorandum Opinion for In re: Don McGahn in the US District Court for the District of Columbia's Electronic Case Filing system (Civ. No. 19-cv-2379)
Main Wikipedia article for In re: Don McGahn

  • [W]hen DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny.
    • Note included: See The Federalist No. 51 (James Madison); see also Buckley v. Valeo, 424 U.S. 1, 120 (1976).
  • Thus., when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.
  • DOJ... insists that, despite the fact that ordinary citizens bring subpoena-enforcement claims in the federal courts all the time, duly authorized committees of the House of Representatives cannot proceed against the Executive branch in court to seek enforcement of subpoenas for testimony and information issued to recalcitrant government officials in the context of congressional investigations. ... Meanwhile, says DOJ, the President has the authority to make unilateral determinations regarding whether he and his senior-level aides (both current and former) will respond to, or defy, the subpoenas that authorized House committees issue during constitutionally authorized investigations of potential wrongdoing within his administration. ...11
    • Footnote 11: For a similar vantagepoint,see the circumstances described by George Orwell in the acclaimed book Animal Farm. ...("All animals are equal but some animals are more equal than others.")
  • Unfortunately for DOJ... these contentions about the relative power of the federal courts, congressional committees, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths...
  • [T]he Constitution vests the Legislature with the power to investigate potential abuses of official authority—when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States—then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information.
  • What is missing from the Constitution’s framework as the Framers envisioned it is the President’s purported power to kneecap House investigations of Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.
  • [W]hen a committee of Congress seeks testimony and records by issuing a valid subpoena in the context of a duly authorized investigation, it has the Constitution’s blessing, and ultimately, it is acting not in its own interest, but for the benefit of the People of the United States. If there is fraud or abuse or waste or corruption in the federal government, it is the constitutional duty of Congress to find the facts and, as necessary, take corrective action.
  • Conducting investigations is the means that Congress uses to carry out that constitutional obligation. Thus, blatant defiance of Congress’ centuries-old power to compel the performance of witnesses is not an abstract injury, nor is it a mere banal insult to our democracy. It is an affront to the mechanism for curbing abuses of power that the Framers carefully crafted for our protection, and, thereby, recalcitrant witnesses actually undermine the broader interests of the People of the United States.
  • Thus, DOJ’s hand-waving over the Judiciary Committee’s purported failure to establish a “cognizable” injury for standing purposes... masks the substantial harm that results from an Executive branch official’s defiance of a congressional subpoena. But it is hard to imagine a more significant wound than such alleged interference with Congress’ ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States.
  • [W]ith respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation. And because the contention that a President’s top advisors cannot be subjected to compulsory congressional process simply has no basis in the law, it does not matter whether such immunity would theoretically be available to only a handful of presidential aides due to the sensitivity of their positions, or to the entire Executive branch. Nor does it make any difference whether the aides in question are privy to national security matters, or work solely on domestic issues.
  • And, of course, if present frequent occupants of the West Wing or Situation Room must find time to appear for testimony as a matter of law when Congress issues a subpoena, then any such immunity most certainly stops short of covering individuals who only purport to be cloaked with this authority because, at some point in the past, they once were in the President’s employ.
  • The United States of America has a government of laws and not of men. The Constitution and federal law set the boundaries of what is acceptable conduct, and for this reason... when there is a dispute between the Legislature and the Executive branch over what the law requires about the circumstances under which government officials must act, the Judiciary has the authority, and the responsibility, to decide the issue.
  • This Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance.
  • This result is unavoidable as a matter of basic constitutional law, as the Miers court recognized more than a decade ago. Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law.
  • [H]owever busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth. Nor is the power of the Executive unfairly or improperly diminished when the Judiciary mandates adherence to the law and thus refuses to recognize a veto-like discretionary power of the President to cancel his subordinates’ legal obligations.
  • Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. ...This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

2020s

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Senate confirmation hearings (March 2022)

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Hearings on "The Nomination of Ketanji Brown Jackson to be an Associate Justice of the Supreme Court of the United States" held before the US Senate Committee on the Judiciary, March 21 - 24, 2022.
Main Wikipedia article discussing Jackson's nomination for the US Supreme Court

  • On the day of his Supreme Court nomination, Justice [Stephen] Breyer said: "What is Law supposed to do, seen as a whole? It is supposed to allow all people - all people - to live together in a society, where they have so many different views, so many different needs, to live together in a way that is more harmonious, that is better, so that they can work productively together." I could not have said it better myself.
  • [I]n preparing for these hearings, you may have read some of my more than 570 written decisions, and you may have also noticed that my opinions tend to be on the long side. That is because I also believe in transparency: that people should know precisely what I think and the basis for my decision. And all of my professional experiences, including my work as a public defender and as a trial judge, have instilled in me the importance of having each litigant know that the judge in their case has heard them, whether or not their arguments prevail in court.

Trump v. United States (July 2024)

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  • Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself. As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision. For, like our democracy, our Constitution is “the creature of their will, and lives only by their will.”
    • Dissenting Opinion, p. 20-21[1]
  • For my part, I simply cannot abide the majority’s senseless discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law—as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries.
    • Dissenting Opinion, p. 21[2]
  • In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once self-regulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.
    • Dissenting Opinion, p. 21[3]
  • The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.
    • Dissenting Opinion, p. 21-22[4]

Quotes about Jackson

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  • Ahead of her confirmation hearing, 'Bloomberg Law' reported that conservative activists were pointing to certain decisions by Jackson that had been reversed on appeal as a ‘potential blemish on her record,’ in order ‘to tarnish her so she won’t get picked for the Supreme Court.’
  • For too long, our government, our courts haven’t looked like America. And I believe it’s time that we have a [Supreme] Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications . . . . I’ve admired [the] traits of pragmatism, historical perspective, wisdom, character in the jurists nominated by [prior] presidents . . . . And today, I’m pleased to introduce [Ketanji Brown Jackson] to the American people [as] a candidate who continues in this great tradition.
  • Judge Jackson comes from a law enforcement family, with two uncles who were career law enforcement officers [and a] brother [who] served as an undercover officer . . . so she should know quite well the difficulties and dangers our officers face in the line of duty every single day. . . . From our analysis of Judge Jackson’s record and some of her cases, we believe she has considered the facts and applied the law consistently and fairly on a range of issues. There is little doubt that she has the temperament, intellect, legal experience, and family background to have earned this appointment. We are reassured that, should she be confirmed, she would approach her future cases with an open mind and treat issues related to law enforcement fairly and justly.
  • Judge Jackson . . . your professional record and life experience tell us what kind of lawyer, what kind of judge, and what kind of person you really are. . . . You are independent-minded - and understand the critical importance of judicial independence. Your record is one of excellence and integrity - from your championship debate team at Miami Palmetto Senior High School, to Harvard and Harvard Law School, to your three judicial clerkships, to your work as a federal public defender, a lawyer in private practice, a member of the Sentencing Commission, a federal district and circuit judge. . . . Throughout your career, you have been a champion for the rule of law. Determined to get it right even at the risk of public criticism.
  • Judge Jackson’s confirmation was a historic moment for our nation. We’ve taken another step toward making our highest court reflect the diversity of America. She will be an incredible Justice, and I was honored to share this moment with her.
  • we try to find our way through the mess of thinking, will Judge Ketanji Brown Jackson being on the Supreme Court undo the things that the Supreme Court is doing? Well, it won’t, because one, the Supreme Court is balanced or unbalanced the way it is. But two, because Judge Jackson’s agenda is not an abolitionist agenda. Of course it’s not. Whatever good, decent things Judge Jackson might do in her community life, I don’t know.

See also

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Wikipedia
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