Supreme Court’s ideological split silently shapes debate at Ketanji Brown Jackson hearing

‘What do you think is the purpose of a dissent?’ was the sleeper question of the week

Ketanji Brown Jackson, President Biden’s pick for the Supreme Court, arrives on the third day of her Senate Judiciary Committee confirmation hearing on Capitol Hill. (Tom Williams/CQ Roll Call)
Ketanji Brown Jackson, President Biden’s pick for the Supreme Court, arrives on the third day of her Senate Judiciary Committee confirmation hearing on Capitol Hill. (Tom Williams/CQ Roll Call)
Posted March 23, 2022 at 6:05pm

For more than 20 hours over three days, Judge Ketanji Brown Jackson has faced two rounds of questioning before the 22 members of the Senate Judiciary Committee, with inquiries ranging from her views on the separation of powers to substantive due process. But so far, no one has addressed the elephant in the room: Even if she’s confirmed to replace retiring Justice Stephen G. Breyer, Jackson won’t change the ideological composition of the court.

On the third day of the hearing, Sen. Amy Klobuchar of Minnesota got the closest to making its subtext explicit. “The greatest dissents do become court opinions,” Klobuchar said, paraphrasing the late Justice Ruth Bader Ginsburg.

Klobuchar’s question — “What do you think is the purpose of a dissent?” — is one Jackson may find herself returning to again and again as she joins the court’s small liberal wing.

“There are actually many justices in history who have used the dissent mechanism to discuss the law in ways that others find, over time, to be more persuasive,” Jackson said. “I’m thinking of the first Justice Harlan, who dissented famously in Plessy v. Ferguson. He dissented alone. All of the other justices agreed with the proposition of ‘separate but equal,’ and he said ‘no’ in a dissent. And his dissent generations later became … the blueprint for Justice Marshall to make arguments that led to Brown v. Board [of Education of Topeka].”

Despite the occasional outburst, this week’s hearing has been relatively subdued, particularly in comparison to the heated debates that marked the three confirmations during the Trump administration, which shifted the court significantly to the right. 

Democrats decried Neil M. Gorsuch’s nomination in 2017 after Senate Republicans refused to consider Barack Obama’s pick to that seat a year earlier. The Judiciary Committee held supplemental hearings for Brett M. Kavanaugh’s nomination over allegations that he committed sexual assault in high school. When Ruth Bader Ginsburg died in September 2020, Trump quickly nominated, and Senate Republicans quickly confirmed over Democratic protestations, Amy Coney Barrett to replace her.

During Barrett’s hearings, Democrats repeatedly lambasted the GOP for rushing her confirmation shortly before the presidential election in a naked attempt to change the ideological deposition of the court. “Why are Senate Republicans so afraid to give the American people a voice about the future of the Supreme Court?” Sen. Richard J. Durbin said. “They want a 6-3 Supreme Court to carry out a Republican agenda that’s really not very popular with the American people.”

The three newest justices changed the court’s ideological composition from five conservatives and four liberals — with Justice Anthony M. Kennedy, a George H. W. Bush pick, as the occasional swing vote — to a 6-3 split that left Chief Justice John G. Roberts Jr. the most moderate of the Republican-appointed justices and Kavanaugh, who replaced Kennedy, occupying the court’s jurisprudential median.

That ideological shift has left conservatives hopeful that the Supreme Court will overturn, or at least significantly limit, several opinions written by their more liberal predecessors, including those on the constitutionality of abortion, affirmative action and gun control. Liberals similarly fear the current court, regardless of Jackson’s confirmation, will weaken the barrier between state and religion.

Given the comparatively low stakes to Jackson’s confirmation, Republicans have focused their questions at the hearing more on political talking points about critical race theory, judicial activism and transgender athletes. The GOP’s sharpest line of attack have focused on allegedly lax sentences that Jackson imposed in child pornography cases, accusations the White House has dismissed as a misleading wink at QAnon conspiracy theories. 

Even though Jackson would be joining the minority, that doesn’t necessarily mean she’ll dissent most of the time. Nearly half of cases over the past decade were decided unanimously, as were 43 percent in the last term, according to a SCOTUSblog analysis. In that same term, all the sitting justices joined the majority in more cases than not. Even looking just at divided cases, excluding the unanimous decisions, only Justice Sonia Sotomayor did not join the court’s majority opinion at least half the time, siding with the majority in just 45 percent of cases.

The court’s ideological divide would likely return to the forefront of senators’ minds if a conservative justice retired or died while Biden remains in office. The court’s most conservative justice, Clarence Thomas, was admitted to hospital Friday with flu-like symptoms and missed oral arguments on Wednesday. A court spokesman declined to give reporters an update on his condition.