President Joe Biden nominated Judge Ketanji Brown Jackson on Friday to succeed Justice Stephen Breyer on the U.S. Supreme Court. Naturally, many have begun to ask whether Jackson is likely to be a moderate liberal—as Breyer is typically called—or more ideologically outspoken, in the vein of Justice Sonia Sotomayor.
Forecasting a Supreme Court nominee’s future behavior is usually a futile undertaking—not only because so much depends on the types of lawsuits that arise in years or decades to come, but also because the traditional left/right political boundary often makes little sense in the judicial world. Judges labeled “conservative” are nevertheless sometimes “liberal” concerning wide areas of the law. Justice Antonin Scalia, for example, was reliably “liberal” on questions regarding search and seizure. What’s more, votes on many complex legal disputes that have immense impacts on people’s lives receive none of the media attention lavished on hot-button issues such as abortion or gun control—and don’t break along the ideological lines familiar from cable news shows.
Prediction is even harder in this case, given that Jackson’s service on the Court of Appeals has been brief—less than a year—which means she has a shorter record on which to evaluate her than high court nominees typically do.
Obviously, as a Democrat, President Biden is unlikely to choose a judge who departs from traditionally Democratic-aligned positions on questions such as abortion or gun control, and some court-watchers have labeled her “slightly to the right of Justice Elena Kagan and well to the right of Justice Sonia Sotomayor,” for whatever that’s worth. But there’s at least one area of law in which Jackson might provide a helpful perspective: cases involving the power of the administrative state—that is, the legal and constitutional controversies surrounding the bureaucratic agencies that exercise such broad power over our daily lives.
It’s no wonder that recent years have witnessed a growing worry about these agencies. After all, they enjoy extraordinary authority to write rules that have the effect of law, despite the fact that they are staffed by unelected officials and are only minimally accountable to Congress. They can also investigate alleged violations of those rules and prosecute them in administrative hearings that are largely exempt from the procedures that protect the rights of the accused in ordinary courtrooms.
Jackson served more than a decade on the District Court in Washington D.C., which is frequently the starting place for lawsuits challenging the power of Washington-based bureaucracies. And her decisions in these cases reveal a welcome skepticism about their assertions of power.
One focus of the controversy surrounding these agencies involves what lawyers call “Chevron deference”—named after the Supreme Court decision Chevron v. NRDC, which addressed the question of how bureaucrats interpret the laws that give them their powers. Since they will typically want to interpret these laws in ways that expand their authority, there’s always a risk that they will read those laws as broadly as possible, giving themselves jurisdiction beyond what Congress intended.
Unfortunately, the “Chevron deference” principle increases this risk by allowing bureaucrats in effect to interpret their own authority as they wish, as long as their interpretations are “reasonable.” In practice, this rule often seems like carte blanche for officials to grow their power—which, in turn, has spurred efforts to limit the Chevron precedent, as well as similar legal precedents that give agencies unaccountable power. Indeed, when Justice Neil Gorsuch was placed on the Supreme Court in 2017, it was largely as a result of opinions he had written expressing skepticism toward the Chevron theory.
While it’s hard to know exactly where Jackson stands on Chevron, her record as a district court judge shows that she’s not afraid to roll back government assertions of authority that she deems unreasonable. In 2018, for example, she presided over a case called Otay Mesa v. Department of Interior, which involved the power of the federal Fish and Wildlife Service (FWS) under the Endangered Species Act. This act gives federal bureaucrats power to control what happens on land if endangered plants or animals—often weeds or insects—live on it. In the Otay Mesa case, property owners planning to build a recycling center on 56 acres they owned in California were ordered to cease construction when officials claimed that a tiny crustacean called the Riverside fairy shrimp lived in a one-acre pond on the land.
After years of litigation, Jackson ruled that the government acted unreasonably when it declared all 56 acres “critical habitat” for the fairy shrimp, and therefore off-limits for development, even though there was no evidence that the shrimp’s habitat extended beyond the single-acre pond. “Rather than focusing on whether and to what extent the Riverside fairy shrimp species actually occupies the particular geographical area,” she wrote, “the FWS has located the various pools where the shrimp have been seen and, as a threshold matter, has deemed all of the land around and between those pools—even land on which the shrimp cannot possibly reside—as ‘occupied’ territory.” That, she declared, “defies logic.” And that meant the FWS’s actions were not entitled to the protection of the Chevron rule.
Similarly, in a 2020 case involving the rules whereby immigration officials decide whether or not someone is a refugee, Jackson turned a skeptical eye on how bureaucrats had interpreted the scope of their authority. That case involved a “lesson plan” intended to teach government employees how to determine whether asylum seekers were at risk of persecution or torture in their home country. The “lesson plan,” however, forced immigrants to provide so much evidence of the threats they faced back home that it essentially prevented people from claiming asylum.
“It is entirely unreasonable for the Lesson Plan to demand that, during the credible fear interview, the noncitizen establish ‘facts’ that ‘satisfy every element’ of her future asylum claim,” Jackson concluded. That would be “tantamount to making asylum applicants prove that they are a refugee during their credible fear interviews, even though Congress has made abundantly clear that a noncitizen need only carry that burden after she has shown a credible fear of persecution.” This unreasonable action by the agency again placed it outside the Chevron rule.
Even more striking than these rulings are her views concerning so-called nationwide injunctions. These injunctions—which block the federal government from doing something anywhere in the country—have proven controversial in recent years because they effectively allow a single trial court judge to put a halt to government policies everywhere. Justice Clarence Thomas wrote an opinion in 2018—speaking only for himself—in which he complained that nationwide injunctions encourage plaintiffs to “forum shop”—that is, choose judges they already know are sympathetic—and prevent other judges from expressing their views on important legal questions. Worse, he said, they “mak[e] every case a national emergency.”
But a year later, and again in the service of restraining the administrative state, Judge Jackson disagreed in a case called Make the Road New York v. McAleenan. In a well-reasoned and dispassionate opinion, she explained why nationwide injunctions are a “standard practice” that should not be ruled out of bounds. For a court to block a bureaucratic agency from doing something in one case, while allowing the agency to continue doing that in other cases, would let government officials “side-step the required result of a fair-fought fight about well-established statutory constraints on agency action,” she wrote. That “reeks of bad faith, demonstrates contempt for the authority that the Constitution’s Framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled.
If a government agency writes an invalid rule, it is proper “for the court to prohibit the rule’s applicability in any and all circumstances,” she concluded. To hold otherwise “enlarges agency power and undercuts judicial authority, by undermining the courts’ ability to rule with precedential force.” Nationwide injunctions may have their risks, but as Jackson concluded, they are a normal—and in some cases, crucial—tool for enforcing the basic rule of law, especially against vast national bureaucracies.
Of course, Jackson was bound to follow existing Supreme Court precedent when serving as a trial court judge. Once on the high court, she would have greater independence to reject existing case law or establish new precedents. Also, her track record gives few objective clues as to how she would decide hot-button topics about privacy rights, immigration or the environment. But decisions like these suggest that at least on questions of the administrative state, she is attentive to the legal concerns raised by the power of unaccountable bureaucracies. Perhaps more importantly, these rulings may signal that she is less likely to infuse her opinions with her personal political views, as some justices do.