Can KBJ Save the Supreme Court?
After the swearing in with Justice Stephen Breyer, Justice Ketanji Brown Jackson flanked by President Biden and Vice President Harris left the south portico of the White House to greet the press on the South Lawn. As it was a sunny day, the President donned his aviator sunglasses, the Vice President, her Warby-Parkers, and Brown Jackson, bared of sunglasses was left to squint into the crisp summer sun.
Visible awkwardness aside, from the vantage of a spectator it looked as if the President and Vice President were ready to ascend the stairs of Air Force One to fly off somewhere, leaving KBJ to squint. What appeared like a tone-deaf photo op, also stung: for Biden-Harris, it looked like “job done”; for KBJ, it looked like the exposure of a newly arrived jurist to America’s corrupted institution.
The ‘its official — history was made today’ — bromide flailed, visibly.
Historic questions remain:
Can KBJ accomplish what Stephen Breyer and Chief Justice Roberts couldn’t: steer the Supreme Court away from oblivion and irrelevance?
During the Senate Judicial Committee testimonies of the three Trump appointees a friend who is an experienced therapist, commented on their ‘eye body language.’ “Kavanaugh, the eyes of a defiant teenager; Gorsuch, the eyes of a stoic deviant; Coney Barrett, the eyes of a smirking Valley Girl.”
How refreshing to see KBJ seem to lean into her interrogators, eyes alert, wagging her head at the repeated silliness and mockery of their questioning.
KBJ can claim more bench experience and on both sides of judicial deliberation than all three of Trump’s appointees put together.
Coney Barrett and Kavanaugh and Gorsuch are not in her league. Not even close.
To say she ‘hits the ground running’ is understatement.
What is in store for KBJ?
The Chief Justice role on the Supreme Court is no longer occupied by Justice John Roberts. There is no Chief agenda setter, no institutionalist in charge of court legacy and legitimacy. With the Alito memo leak and the Dobbs decision, Roberts relinquished that role to Thomas, the oldest justice on the Court now that Breyer has retired.
The Alito-Thomas “originalist” charade runs the docket, the one one sees. Predictably, the three Trump appointees fall into line, Federalist Society style.
Jefferson, Madison, and Paine, drafters of the Bill of Rights be damned.
Alito cherry-picks at history; Thomas invites the hounds of chaos in. Deliberation is not the daily task; strident power mongering is. As one observer reports, “they (the five justices with Roberts in absentia) don’t even care about sustaining the legitimacy of the Court.”
Entertaining ‘precedent’ is now confined to a quaint Latin phrase, stare decisis. Street protests of court decisions have spread to the homes of the justices. Reflexively, the Court has removed the weekly public reading of opinions and replaced the event with a web site document dump.
America can be terrified at home, at the laptop.
Such are the waters that KBJ is about to embark on. It’s dubious that Congress can provide steerage (1) and Biden-Harris are on Air Force One jetting somewhere.
Remember? They left.
Which leaves KBJ adrift… except for her influence which though understated and without trajectory at this stage is all that America has.
The larger question is, does convincing one’s peers still count in ‘post-democracy’ America?
The true “originalist” on the Court is now KBJ. For she, not the three Supreme Court newbies, applies Scalia’s “orginalist” test where it matters, not by cutting and pasting but by envisioning. (2) What the three Trump appointees are reluctant to apply — imagining — KBJ will have to school them on.
Roberts, hopefully, will watch carefully and learn.
It’s all we’ve got right now.
The next wave for KBJ to climb is entertaining ‘precedent.’ As the Justices demonstrate, ‘precedent’ is a two-edged sword. Abandon ‘precedent’ and one abandons legitimacy. The public trust of any decision or opinion the Court renders is at risk.
After a few weeks of sneaking in the back door of the Court past the Capitol Police and razor wire, to convene and render decision, how confident is one that the presence of sign-toting angry folk is not a consequence… but bad manners?
KBJ is more than a fresh face.
A new influence space has opened up. America needs a safe harbor.
2-Cite NYTimes, July 3