To begin with a disclosure, I met Judge Jackson, then Ketanji Brown, on my first day of college, which was also her first day. We lived in the same small dorm, and I can still recall in some detail the impression she made. Even among all the excited and ambitious teenagers, each eager to distinguish themselves in some way, she stood out. She was engaging, charismatic, confident — and intellectually confident in a way that made her different from those of us who came across as if we had something to prove and were prepared to disagree with anything and anyone at the drop of a hat.
On top of all that, she had the quality of personal warmth that enabled her to make anyone she was speaking to feel as if they were special. She certainly made me feel that way. I would be astonished if she remembered meeting me that day. That’s because I’m pretty sure she made everybody feel as if we were distinctive and unique and worth meeting. And I know she was the only person I met that day who made that impression on me.
I mention this moment because it goes to the ways a Justice Jackson could distinctively contribute to the court and the country. On its own, no single appointment can change the balance of this particular court at this particular moment. Unless things change radically, Jackson’s career as a justice would begin with her on the dissenting side of most of the major cases that will be heard. Yet over the long run, any justice has the option of building a body of opinions — including dissents — that can be incorporated into eventual impact and change in our constitutional jurisprudence.
Jackson’s professional preparation to be a justice was specifically focused on an important, complicated, vexed and now almost moribund institution, the U.S. Sentencing Commission. Created by Congress, and unmentioned in the Constitution, the commission is technically part of the judicial branch of government. It promulgates sentencing guidelines for federal courts that were originally intended to be binding but were held by the Supreme Court to be only suggestive in an important 2005 decision.
The judicial name most closely associated with the commission is Justice Stephen Breyer, whom Jackson clerked for and whom she would replace. But Jackson’s close ties to the commission point up the influence of another mentor who has arguably been more directly influential in her career, Judge Patti Saris, who chaired the commission from 2010 to 2017.
Saris has long served as a judge on the federal District Court in Massachusetts, and was chief judge of that court for years. Like Jackson, Saris went to Harvard College and Harvard Law School. She is widely recognized throughout the federal judiciary as a legal thinker who can be trusted to make thoughtful, pragmatic and wise decisions on a wide range of issues. In all this, she is reminiscent of Jackson herself.
Jackson clerked for Saris straight out of law school, before spending a year as a clerk to appellate judge Bruce Selya, clerking for Breyer at the Supreme Court and serving time in private practice. Then she spent 2003-05 as special counsel to the sentencing commission. Those were complex and important years for the commission, during which its task rationalizing criminal sentencing was under intense criticism from left and right. And those years culminated in the Supreme Court striking down the idea that the guidelines were binding on federal judges. Jackson had a front-row seat.
Remarkably, she returned to the commission as its vice chair in 2009, just four years after working as a lawyer on staff. Jackson got the chance to work as an equal alongside Saris, for whom she had been a law clerk. Serving on the commission then required balancing its remaining prestige with the practical need to make sure the guidelines still had meaning in the aftermath of the Supreme Court decision.
This was Jackson’s breakthrough public service appointment, and it led to her being appointed to the federal District Court, again like Saris. As a judge, she was liberal but also a pragmatic centrist — once more like Saris and Breyer. (Saris and Breyer have also been colleagues, incidentally.)
As a justice, Jackson would be able to combine her pragmatic liberalism with her distinct warmth and vision. Great first justices like Thurgood Marshall, Sandra Day O’Connor and Louis Brandeis managed to expand and shape the law in ways that were unquestionably connected to their distinct personal experiences and perspectives. They did not formally judge “as” Black or female or Jewish. They did interpret and apply the Constitution in the light of personal philosophies that were shaped by who they were.
Expect Jackson to do the same, if she is confirmed. Her experiences as an African-American woman and as someone who had an uncle imprisoned on a drug felony will matter — as will her elite educational background and her career in which she worked as a federal public defender as well as a sentencing commission member and judge. Justices’ unique philosophies emerge from the interplay of intellect, belief, background and experience. Jackson should now have the chance to form her own. It is going to be important, for the court and the country.
Related at Bloomberg Opinion:
• Every Supreme Court Nominee Deserves Firm Opposition: Ramesh Ponnuru
• Breyer’s Supreme Court Pragmatism Will Be Missed: Noah Feldman
• Conservative Justices Are Walking Into Their Own Trap: Noah Feldman
• Gorsuch Versus the Administrative State Is Really Heating Up: Noah Feldman
(Corrects spelling of Judge Patti Saris’s name.)
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
