In 2018 Jackson, in another decision against Trump, ruled in favor of federal employee unions that were contesting several executive orders limiting the collective bargaining rights of federal workers. A federal appeals court panel reversed her decision on grounds that the unions had to pursue their claims first through an agency administrative process, and only after that, the appeals court said, could the unions go to federal court.
In another Trump-era case, Jackson sided with the administration, concluding that the Department of Homeland Security could waive more than two dozen environmental laws in order to construct a segment of the wall along the U.S. border with Mexico.
Grilled by Senate Republicans on race
Jackson’s nomination to the D.C. Circuit also went relatively smoothly after she was nominated by President Biden last year. Still, she got quite a grilling from some conservative senators on the Judiciary Committee. Sen. Josh Hawley, R-Mo., for instance, asked her this question: “Do you think that the U.S. criminal justice system is systemically racist or is infected with systematic racism and bias?”
“Those are not terms that I use in the law when we look at issues of race,” she replied, adding that in examining whether there has been race discrimination, courts “will generally look for attorneys to prove up discriminatory intent, discriminatory impact, in some cases, retaliation. There is no Supreme Court doctrine that speaks to systemic racism,” and those “aren’t words that I’ve ever used in a court of law to make claims based under the constitution or the applicable statutes. ”
Sen. Ted Cruz, R-Texas, asked her about her representation of clients in a case involving prisoners at Guantánamo Bay. Jackson said she filed a friend-of-the-court brief, representing 20 former federal judges who wanted to make the point that evidence obtained by torture would not have been accepted by the English courts in the system of common law that is the basis for ours. Cruz pressed further, asking her what led her to take on the case. She replied that she worked in a big firm and was assigned to represent the firm’s clients, who, in this case, were a group of judges.
When Sen. Tom Cotton, R-Ark., similarly challenged her about the case, she noted that at the time she was assigned to work on it, her brother was deployed to Iraq with the military. And in a follow-up written answer, she said that she was “keenly aware” of the threat posed by the 9/11 attack.
In the end, she was confirmed by a vote of 53-44, with three Republican senators supporting her — Susan Collins, Lisa Murkowski and the Judiciary Committee ranking Republican, Lindsey Graham.
On the appeals court, she most recently was part of a unanimous panel that upheld a congressional subpoena for White House records related to the Jan. 6 riots. When Trump appealed to the Supreme Court, the justices left the lower court ruling intact.
From Miami to Harvard
Jackson was born in Washington, D.C., where her parents were schoolteachers. They soon moved to Miami, where her father went to law school and rose to become the school board’s top lawyer, while her mother became a school principal. One of her earliest memories of the law, she has said, was sitting next to her father in the evening while he studied law books and she worked on her coloring books.
In high school, Jackson was a national oratory champion, then graduated with honors from Harvard College and Harvard Law School, where she was an editor on the law review. She clerked for three federal judges, including Justice Breyer, the man she would replace.
Jackson met her husband, Patrick Jackson, when the two were at Harvard College. He was, she says, her first “serious boyfriend” and has remained that ever since. They have two daughters.
At first blush, they look like an improbable couple.
As she put it in a charming — and candid — speech at the University of Georgia law school in March 2017, “Patrick is a quintessential ‘Boston Brahmin’ — his family can be traced back to England before the Mayflower. … He and his twin brother are, in fact, the sixth generation in their family to graduate from Harvard College. By contrast, I am only the second generation in my family to go to any college, and I am fairly certain that if you traced my family lineage back past my grandparents — who were raised in Georgia, by the way — you would find that my ancestors were slaves on both sides.”
Federal Judge Patti Saris, who hired Jackson as a law clerk straight out of law school, recalls her husband, who now looks full-on prep, as less so back then. At the time, he was a surgical resident at Massachusetts General Hospital, but he was so fascinated by his wife’s work he would often go to the courtroom after a long night on call to watch what was going on. As Saris remembers, the young doctor had often been up for 24-plus hours and looked incredibly scruffy, sitting in the back of the courtroom. Finally, one day, the judge’s courtroom marshal came up to her and whispered, “Judge, would you like me to remove the homeless man in the back row?”
The doctor, a star in the surgical world today, is the first to toot his wife’s horn.
Judge Brown said in that Georgia speech that being a federal judge was always her “dream job.” But after Obama nominated her in 2012, actually getting that job depended entirely on events beyond her control, namely Obama’s reelection.
“And when you add to that,” she said, “the fact that I am related by marriage to … Paul Ryan [then the House speaker], who was at that point running for vice president against President Obama, you can get the sense of what that period was like for me.”
As difficult as that confirmation may have seemed at the time, it may in hindsight be something of a picnic compared to what she is likely to face her as a nominee to the U.S. Supreme Court.