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Stephen L. Carter

Stephen L. Carter: For Ketanji Brown Jackson, the law is in the details

With the end of the Supreme Court’s 2022 term, what have we learned about the most junior justice? To some, Ketanji Brown Jackson has been a reliable vote for the liberal coalition; others contend that she’s a swing vote with a tendency to surprise her fans by joining the court’s conservatives.

In truth, one year is too short a time to reach a reliable conclusion; the sample size is too small. Still, on the evidence so far, I’m struck by a quite different thought — that she might prove a worthy successor to the first Justice Jackson. That would be Robert H., the Nuremberg prosecutor, perhaps the most influential member of the court in the middle years of the 20th century, who was lauded in particular for his close and careful reading of statutes. That fascination with the details of the law might be the most overlooked aspect of her first term.

Just consider how Jackson writes. She has mostly resisted the habit, unhappily common on the current court, of penning opinions with an apparent eye to quotation in the press. Instead, she writes ... well, like a lawyer: “It soon became clear that our primary and secondary escheatment rules were resulting in inequitable distributions, at least with respect to particular instruments.” Try posting that on social media and see how often it’s retweeted.

Jackson does not relax this tendency even when arguing forcefully for an expressly liberal goal, such as her June dissent defending a broad scope for habeas corpus review of criminal convictions:

“[I]t is precisely because the text of §§2255(h)(1) and (2) speaks unequivocally to the narrowing Congress wished to effect with respect to new evidence and new constitutional claims that we should not ascertain that Congress meant for the second or successive bar to have the same effect with respect to legal innocence.”

Jackson’s compelling argument on behalf of a prisoner plausibly claiming to be innocent rests crucially on that sentence — but a search for quotations of even bits of the sentence in media coverage returned zero hits.

I don’t say this in criticism. I applaud Jackson’s recognition of why judges write opinions at all. The Supreme Court is a court of law, and the principal audience for its opinions is, properly, the bar. Activists might wax furious or dance with delight over the outcome of a given case, but for the lawyer or the legal scholar, the first question should involve not the result but the quality of the reasoning. And that’s where, just like her namesake, Jackson shines. Particularly when a case turns on the close and careful reading of a statute, she crafts meticulous opinions. (Even when eight justices say she’s wrong.)

Yes, Jackson sometimes votes differently from the rest of the liberal bloc, but those occasions, too, tend to reflect her insistence on precision in understanding the words with which Congress expresses itself. Consider Bittner v. United States, an important February decision that narrowed the scope of individual criminal liability under the Bank Secrecy Act. Justice Neil Gorsuch delivered the opinion of the court, except for one section where he applied a canon of statutory construction known as “the rule of lenity.” Of the four justices who voted with Gorsuch to form the 5-4 majority, we should hardly be surprised to learn the only one who signed on to that segment was Jackson.

On the other hand, those who insist that she’s a reliable leftish vote point to her 95% rate of agreement with Justice Sonia Sotomayor. But the lowest rate of agreement between two justices in the 2022 term was 60%, and all but a handful of pairs were above 70. More important, the 95% figure is itself driven in part by her fascination with the intricacies of statutory interpretation. For example, in a complicated bankruptcy case decided in February, Jackson was the only member of the court to join Sotomayor’s brief concurrence, which clarified a minor point of statutory interpretation that the majority left unaddressed. The issue possesses no discernable ideological resonance. But Jackson likes statutory analysis tidy, and Sotomayor’s three-paragraph statement cleaned up an omission most observers would probably find trivial.

Jackson's first term has not been without blemish, even in the reading of statutes. For instance, in a recent majority opinion, she repeats an old myth about President Ulysses S. Grant's enthusiasm for the Civil Rights Act of 1871. A detail, yes, but Jackson is a justice to whom, happily, the details matter. In any case, that slip represents a small wrinkle in a quite intriguing freshman season for the most junior justice.

The first Justice Jackson once warned that the language of statutes “is artificial, elusive and difficult to carry in mind.” For some jurists, the court’s newest justice among them, those difficulties are what make reading the law with care so important. Given that statutory analysis constitutes far more of the court’s work than constitutional interpretation, Ketanji Brown Jackson’s fascination with getting statutes right is likely to shape the law for decades to come.

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