Ketanji Brown Jackson will be the 116th justice—and first Black woman—to serve on the Supreme Court.* The Senate confirmed the 51-year-old federal judge to the high court on Thursday in a historic 53–47 vote. Three Republican senators—Alaska’s Lisa Murkowski, Maine’s Susan Collins, and Utah’s Mitt Romney—joined a unanimous Democratic caucus to vote for her confirmation.
Democratic senators filled the chamber with cheers and applause after the vote was finalized Thursday as Vice President Kamala Harris, the nation’s first Black woman in that office, presided. They enjoyed a victory lap, praising Jackson and celebrating the groundbreaking nature of her ascension.
“Today, the higher angels, as Abraham Lincoln said, held forth—and held true,” Senate Majority Leader Chuck Schumer said after the vote.
“She turned out to be a pillar of strength and showed grace and dignity and really won over the hearts of the American people,” said Senator Dick Durbin, chairman of the Senate Judiciary Committee. “She was cool under pressure, she was solid, and she really made the case that to be the first, you have to be the best.”
The paradox Jackson faces is that she is about to become one of the most powerful people in American life but will still have relatively limited influence in her day-to-day job because of the court’s ideological makeup. Her most consequential writings on the court, at least for the foreseeable future, figure to be dissenting opinions.
Jackson won’t take her seat until after the court’s current term ends in July, when Justice Stephen Breyer officially retires. She will not participate in the court’s rulings this term in a panoply of major cases: on the Second Amendment and concealed-carry licenses, on the Environmental Protection Agency’s power to regulate carbon emissions, and on the First Amendment and religious freedom in public schools. Jackson also won’t participate in the decision in Dobbs v. Jackson Women’s Health Organization, where it is widely expected that the Supreme Court will overturn Roe v. Wade.
Jackson told senators that she will recuse herself from a major case on affirmative action in college admissions when the court reconvenes in October. (She served on the board of overseers of Harvard University, which is a party in the case.) But Jackson will have no shortage of major legal disputes to wrestle with in her first term. The fall docket already includes Merrill v. Milligan, an Alabama redistricting case that could give the court’s conservative majority an opportunity to further narrow the Voting Rights Act of 1965, for example. The justices will also try to resolve a complex challenge to the Indian Child Welfare Act that has serious implications for tribal sovereignty.
Breyer, Jackson’s predecessor, will retire from the court at the age of 83. If Jackson, 51, serves until she is that age, she will still be on the court in 2054. What the court will look like then is unknowable. But it seems highly likely, based on the other justices’ ages and the court’s past retirement patterns, that a conservative majority will endure for at least the next 10 to 15 years. Chief Justice John Roberts is fairly good at ensuring that each justice writes a roughly equal share of majority opinions each term. Jackson’s majority opinions will likely come in more technical low-stakes cases that don’t fall along the court’s typical ideological lines.
In the more high-profile cases that the court hears, however, Jackson is likely to spend her time writing dissents or joining those written by the other liberal justices. She will be a firsthand witness to the revolution—or counterrevolution, depending on how you view things—led by the court’s conservative supermajority. Some of its members, such as Justices Clarence Thomas and Neil Gorsuch, appear willing to narrow or overturn most of the major precedents from the Warren court era in the 1950s and 1960s, which was the apogee of liberal influence on the high court. Roberts, as well as Justices Brett Kavanaugh and Amy Coney Barrett, appears less willing to pursue such seismic shifts in American law—or at least more willing to take a gradual approach to change.
It would have been hard to tell that the immediate stakes were so relatively low given the often reckless and incendiary attacks Jackson endured in recent weeks. As narrow as the final vote was, it was a placid end to a pointlessly vicious confirmation process. Jackson’s elevation to the high court almost certainly won’t lead to any major ideological shifts, nor will it change the balance of power between the court’s liberal and conservative wings. But that didn’t stop Republican senators from engaging in malicious smears against Jackson, including baseless accusations that she was unusually friendly toward child sex offenders. Some of the conservatives who embraced the attacks appeared eager to play to the GOP’s QAnon wing; others simply seemed to want revenge for Justice Brett Kavanaugh’s confirmation process three years ago. The cruelty, so to speak, was the point.
Jackson’s qualifications for the high court spoke for themselves: She is a widely respected federal district court judge, a former member of the U.S. Sentencing Commission, and was confirmed to serve on the high-profile D.C. Circuit Court of Appeals just last year. She is also the first Supreme Court justice to have previously served as a federal public defender, a background that drew plaudits from the Democrats’ left flank. Republican attacks on her record ranged from concerned to embarrassingly overwrought.
“The last Judge Jackson left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis,” Arkansas Senator Tom Cotton said in a floor speech on Tuesday, referring to Justice Robert H. Jackson’s leave of absence in 1945 to serve as the chief U.S. prosecutor in the postwar trials for top German war criminals. “This Judge Jackson may have gone there to defend them.” It wasn’t Cotton’s only wild accusation or insinuation. In written follow-up questions that were released last week, Cotton asked Jackson if she had ever used a Schedule I controlled substance, which includes illegal drugs like heroin and ecstasy. (She answered no.)
That these attacks failed to derail Jackson’s confirmation doesn’t mean they won’t be used again. Future Democratic presidents may now hesitate before nominating a would-be justice with experience as a public defender, with a history of defending unpopular clients, or with trial-court experience in criminal sentences. That may have been part of the point of the attacks: Some of the questions posed by Cotton and his colleague Missouri Senator Josh Hawley suggested that they didn’t believe all criminal defendants have a right to a vigorous legal defense. People become public defenders, Texas Senator Ted Cruz suggested on Fox News last weekend, “because their heart is with criminal defendants; their heart is with the murderers, with the criminals, and that’s who they are rooting for.”
Senator Cory Booker argued to reporters that the triumph of the occasion eclipsed any frustration stirred by attacks from Republicans. “Nothing can steal the joy of this moment,” Booker said ahead of the vote on Thursday.
Not every Republican senator opted to attack Jackson; some, while acknowledging their ideological differences, noted the historic nature of her confirmation. “I think it’ll be a high point for the country to see her go on the court and take her unique perspective to the court,” Senator Roy Blunt, who is retiring at the end of this year, said on ABC’s This Week on Sunday. Senator Thom Tillis, a member of the Judiciary Committee, told reporters on Thursday that he had told Jackson’s parents and her husband during the confirmation hearings that she was “an extraordinary person.” He added: “I know a lot of extraordinary liberal people that I would never vote for,” Tillis said.
In the end, the attacks didn’t work. She will soon take her seat and wait patiently for a day when the court’s ideological balance swings back. Supreme Court justices serve for life, so it may not always be tilted so far to the right. If the pendulum swings back to the court’s liberal wing, she may prove to be one of the most important justices on the high court at that time—and perhaps the most impactful outcome of the Biden presidency.
Grace Segers contributed reporting.
* An earlier version of this piece misstated that Ketanji Brown Jackson would be the first woman of color on the Supreme Court.
