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Q&A – How Liberal Is Ketanji Brown Jackson?
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Today’s Entry: Brian, I’ve heard you break down Supreme Court Justices along ideological lines before and you’ve suggested Jackson is to the left of Breyer. Can you give us an idea of how liberal she is compared to Breyer and the other libs on the court?
Bottom Line: I’ll give it a go and get you as close to an answer as I can. As you mentioned, I’ve regularly provided info on the voting records, and thus ideological bend, of Supreme Court Justices. Specific to Justice Breyer, upon the announcement of his retirement in January, I brought you this… Justice Breyer is currently the 4th most partisan Justice on the Supreme Court and the most moderate of the so-called “liberal” wing. As I’ve pointed out, the Supreme Court is commonly mischaracterized as being both partisan and either “conservative” or “liberal” based upon the perception of the court’s majority. This is illustrated by 70% of Supreme Court decisions being unanimous decisions. But when there are split decisions, and when those decisions do involve splits along perceived ideological lines, we’re able to see the differences in each of the justices.
As cited in my January depiction of the current Justices, Breyer’s voting record is the most moderate of the so-called “liberal wing” which means a justice to his left has the potential to move the overall court to the left despite the commonly presented six to three conservative majority. The most liberal Supreme Court Justice is Sonia Sotomayer – who is about as liberal as Clearance Thomas is conservative. Breyer has historically been about 20% more likely to break with the perceived conservatives on the court in split decisions than Sotomayer. That leaves a lot of room for the court to lurch left and there’s a good chance we’re in the process of seeing that happen with the nomination and likely confirmation of Ketanji Brown Jackson.
While Judge Jackson has a lengthy legal record to review, it’s a bit of an apples and oranges comparison to take lower court rulings and attempting to project them into Supreme Court rulings. There are a couple of organizations, Judicial Common Space, or JCS – headed by Washington University in St. Louis, and The Database of Ideology, Money in Politics, and Elections, or DIME – led by Stanford University researchers who attempt compare Judges to Supreme Court Justices, and I’ll lean on them in attempting to answer this question.
In the JCS assessment, they project Jackson as being well left of center but slightly more moderate than Kagan and far more moderate than Sotomayor. If this assessment were accurate – she'd essentially be in line with the outgoing Breyer and there wouldn’t be a shift towards the left on the court. In fact, if anything – perhaps it’d be a slight nudge to the right. This assessment has Jackson being about a liberal as Amy Coney Barrett is conservative. The DIME assessment shows something significantly different.
Under the DIME assessment, they show Jackson as becoming the new standard bearer of the left on the Supreme Court. If their assessment is accurate, she’d not only be to the left of Sotomayor – they have her significantly to the left of her – which is really saying something. In fact, if their assessment is correct, she’d instantly become the most ideological Justice on the Supreme Court as she’d be more liberal than Clarence Thomas is conservative. The DIME projection has her being about 25% to the left of Breyer.
So, which is it? Is she set to pick up where Breyer is leaving off as the most moderate liberal on the court – or is she set to become one of the most liberal Justices in US history? Aside from lower court rulings and associations of Brown Jackson, are her own words and actions. I’ve highlighted two this week which caught my attention. Her presentation to University of Michigan students in January of 2020 – extolling the virtues of the CRT work, the 1619 Project and her statement regarding abortion in Tuesday’s hearing in which she said Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy. Of course, Roe and Casey weren’t laws, they were rulings. That speaks to an extreme level of activism in suggesting it’s the Court’s role to create law. One of those two examples is measurable. Wide majorities of Americans of all political stripes oppose the teaching of Critical Race Theory in school. Recent polling has shown only 27% of Americans feel CRT should be taught. For that matter, only 44% of Blacks polled support the teaching of CRT. Yet, given the opportunity, Judge Jackson took the opportunity to do it. And it’s not just that the example is to the left of at least 73% of Americans – the context of the topic is key as well.
The premise of CRT is that the United States was founded on systemic racism which is still in play today. This is used as a basis for suggesting the founding documents, IE Constitution – aren't legitimate. That position is consistent with her subsequent statement pertaining to the role of the Supreme Court in creating law as opposed to interpreting it. Here’s the net-net of it based on all of this analysis. If you split the difference of the JCS and DIME assessments, she’d essentially equal Justice Sotomayer as being the most liberal Justice on the court. Add in my analysis and it would suggest the hardest left perspective is the more likely of the two. This is to say that she’s likely to be at least as liberal as Sotomayer and most likely the most liberal. Under either scenario she’d move the court left over where it stands with Breyer.