For the first time in its 233-year history, the United States Supreme Court is about to have a black woman as its judge. On February 25, President Biden nominated Ketanji Brown Jackson to replace Justice Stephen Breyer, for whom Jackson served as clerk. Like Biden Noted, it brings us closer to a “court that fully reflects the talents and greatness of our nation.” Jackson’s appointment won’t change the ideological makeup of the Supreme Court, but it will mean four female justices, another landmark. Vital public health cases are being brought to court, from COVID-19 to abortion and firearms. What does his nomination mean for the future of American healthcare?
Judge Jackson’s record covers her services as a public defender, vice chair of the U.S. Sentencing Commission, and judge of the federal district and circuit courts. She has dedicated her career to racial, economic and environmental justice. Jackson has a reputation as fair and rigorously prepared. She will be a pragmatic force on the ground – a judge who understands ordinary people’s struggles to access health care and the socio-economic determinants of health. Let’s take a look at his file.
Health and security
To his Senate Judiciary Committee audience for the United States Court of Appeals, Judge Jackson said she asked Chevron respect at least 11 times. Chevron is a long-standing doctrine that judges defer to the expert opinion of federal agencies. Historically, the Supreme Court has recognized that agencies must have considerable leeway creating and enforcing health and safety rules. Lay judges should not substitute their opinions for those of career professionals. But in recent years, the conservative majority has moved markedly away from reliance on agency expertise, significantly eroding the regulatory state.
At a watershed moment, the Supreme Court recently struck down Occupational Safety and Health Administration Vaccination or Testing Warrant for large employers. Three conservative judges applied the “major issues” doctrine, according to which agencies cannot issue regulations with major economic and social impacts without the explicit authorization of Congress. This jeopardizes a host of federal regulations, including occupational health, food and drug, motor vehicle safety and the environment. As the liberal wing wrote in its dissent, the court’s decision “hinders the federal government’s ability to counter unprecedented threats.” The court would benefit from justice that would defer to public health experts.
Judge Jackson has never ruled on an abortion case. However, in an amicus brief on behalf of reproductive rights groups, she urged the court to maintain a Massachusetts Law banning anti-abortion protesters from harassing people seeking reproductive health services.
While on the United States Court of Appeals, Judge Jackson ruled that the Trump administration’s decision to cut subsidies for teenage pregnancy prejudice was arbitrary and capricious. Planned parenthood released a statement in support of Judge Jackson’s nomination, citing his commitment to public service and the pursuit of equal justice.
In Dobbs v. Jackson Women’s Health Organizationthe Supreme Court can decide the future of Roe vs. Wade. Mississippi law prohibits abortions after 15 weeks of gestation. Since a ban on pre-viability squarely violates deer, a decision confirming this law will have far-reaching consequences. Earlier this term, the court for the time being rested a texas law essentially banning abortions after 6 weeks of pregnancy, which can be a harbinger of majority decision in Dobbs. If Roe were to fall, as many expect, states will be encouraged to further restrict sexual and reproductive health services. The court will need a judge who understands the devastating health effects of restricting access to abortion, especially on the poor, young, uninsured and undocumented.
Drug-related crime conviction
Judge Jackson’s service as vice-president of the Sentencing Commission will influence its judgments on community safety, policing and drug offences. She was a strong advocate for reducing crack sentencing disparities and supported reduce the severity of penaltiesreleasing tens of thousands of prisoners who were disproportionately from racial minorities.
Judge Jackson’s personal experiences will also influence her judgments. His uncle was sentenced to life imprisonment as a repeat drug offender, but was pardoned by President Obama. A friend observed, “his family’s experience informs him of the real impact of the law on people’s lives.” Jackson’s work as a public defender will also make her sympathetic to harm reduction policies, aligning herself with Biden’s Strategy to reduce drug-related deaths.
If confirmed, Judge Jackson will rule on the authority of regulators to protect the environment. Judge Breyer, not Jackson, will hear a critical case regarding the power of the Environmental Protection Agency to limit greenhouse gas emissions. But with climate action a central priority for President Biden and a defining health issue of our time, more environmental cases will come before a future Judge Jackson.
Judge Jackson rendered several environmental protection decisions, such as reject a challenge to forest management regulations by timber and ranching plaintiffs. Judge Jackson also permit a lawsuit to be filed against the Navy regarding the contamination of a river. And she weighed in on the growing threat of antimicrobial resistance, refusing an FDA request to redact information about antimicrobial drug use for food-producing animals.
Judge Jackson was a strong supporter of civil rights. She appointed Constance Baker Motley – the civil rights pioneer – as an inspiration in her White House speech. In 2019, she ordered the Department of Homeland Security not to expand deportations without a court hearing. She has defended immigrants’ right to due process, regardless of their legal status. Judge Jackson also defended the rights of people with disabilities, saying prison officials acted with “willful indifference” to an incarcerated person. deaf person need for accommodation and, separately, Uber’s inability to provide equal services to wheelchair users violated the Americans with Disabilities Act.
She supported workers’ rights, decision that President Trump could not limit collective bargaining rights. Unions are vital for health protection, directly (worker safety) and indirectly (higher wages).
If confirmed, Jackson will be transformational justice, not just because of her race and gender. His real-life experiences will be just as consequential, and his reputation for empathy would be hugely important to the most disadvantaged communities. She understands how harmful it is to be discriminated against and would understand how such differential treatment would prevent many Americans from achieving the highest level of mental and physical health. This is the kind of justice we can expect if the Senate confirms Jackson to the Supreme Court.
Lawrence O. Gostin, JD, is a University Professor, the highest academic rank at Georgetown University, where he directs the O’Neill Institute for National and Global Health Law. He is also Director of the World Health Organization Collaborating Center on National and Global Health Law. He is the author of the book, Global health security: a blueprint for the future. Alexandra Finch, LLM, is a Fellow of the O’Neill Institute for National and Global Health Law. Sarah Wetter, JD, MPH, is associated with the Health and Human Rights Initiative of the O’Neill Institute. Eric A. Friedman, JD, is Global Health Justice Scholar at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center.