Supreme Court Nominations

Judge Ketanji Brown Jackson writes first appellate opinion; she's seen as a potential SCOTUS nominee

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The U.S. Court of Appeals for the District of Columbia Circuit has released the first opinion written by Judge Ketanji Brown Jackson, who is considered a potential U.S. Supreme Court nominee to replace retiring Justice Stephen G. Breyer.

Slate described the new opinion as “an unqualified win to union rights.” Bloomberg Law and also have coverage of the Feb. 1 decision, American Federation of Government Employees v. Federal Labor Relations Authority.

According to Slate, the case “emerged from a sharp dispute between the Trump administration and organized labor over the rights of federal unions to negotiate their working conditions.”

Former President Donald Trump had installed a majority on the three-member board of the Federal Labor Relations Authority, which oversees labor-management relations for federal workers and their unions.

The board issued several statements overturning caselaw protecting collective bargaining. The case concerned a September 2020 statement on what kind of changes trigger a duty to bargain. The new rule said managers have to bargain only when workplace changes have a “substantial impact on a condition of employment.”

The prior rule adopted in 1985 required bargaining on any change having more than a “de minimis effect” on workplace conditions.

In her decision Tuesday, Jackson agreed with union challengers that the new rule was arbitrary and capricious.

Slate described Jackson’s opinion this way: “Nothing flashy, nothing heated, just a clear and straightforward application of the law in a manner that happens to produce a major victory for federal unions. It’s not much different from her writing on the U.S. District Court for the District of Columbia, though it lacks the biting maxims (‘presidents are not kings’) that Jackson occasionally deployed on the lower court. In lieu of flashy prose, Jackson leaned on wry understatement and pith.”

Judge Ketanji Brown Jackson headshot U.S. Circuit Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit. File photo from the U.S. District Court for the District of Columbia.

Bloomberg pointed out that Jackson also ruled on labor issues as a federal district judge when she blocked three executive orders by Trump. Jackson said the orders would “eviscerate” federal workers’ right to bargain collectively. The D.C. Circuit reversed, saying the union should first pursue its claims through an administrative agency process.

Other coverage highlights these opinions Jackson wrote as a district judge:

• Jackson ruled in November 2019 that former White House counsel Don McGahn must appear before the House Judiciary Committee to testify in an investigation into how Russia influenced the 2016 presidential election. “Presidents are not kings,” Jackson wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.” The D.C. Circuit reversed, holding that the courts had no authority to resolve the dispute. McGahn eventually testified as a result of a deal. The case is Committee on the Judiciary v. McGahn. (, SCOTUSblog)

• Jackson granted a preliminary injunction in September 2019 that barred the Trump administration from expanding its expedited removal program. She was reversed on appeal in a decision that said the U.S. Department of Homeland Security had the authority to act. The case is Make the Road New York v. McAleenan. (CNN)

• In September 2019, Jackson tossed an environmental suit challenging the Trump administration’s waiver of laws to allow construction of a portion of the border wall. The case is Center for Biological Diversity v. McAleen. (SCOTUSblog)

• Jackson ruled in September 2015 for a deaf man who was denied a sign language interpreter when he was in prison. A jury later awarded the man $70,000. The case is Pierce v. District of Columbia. (, SCOTUSblog)

See also: “Possible SCOTUS nominee saw impact of criminal justice system in uncle’s case” “Biden’s first judicial picks include DC Circuit nominee Judge Ketanji Brown Jackson, said to be SCOTUS contender” “These 2 judges are considered front-runners to replace Breyer; who else is getting mentioned?” “White House confirms potential Supreme Court nominee as the short list grows” “Afternoon Briefs: Senate confirms Biden appellate judge; how SCOTUS justices supplemented their 2020 income” “Breyer was ‘quintessential Enlightenment man in an increasingly unenlightened era,’ op-ed says” “Can the nation endure? Breyer waxes philosophical in retirement press conference; Biden sets timetable” “Justice Breyer, Supreme Court’s oldest member, will retire, reports say”

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