President Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer would bring deep environmental expertise to the bench at a time when the court is poised to consider the breadth of EPA authority under the nation’s bedrock air and water laws.
Ketanji Brown will not be a part of the blockbuster climate cases West Virginia v. EPAShe is scheduled to argue Monday. She is expected to be confirmed in the time it takes to hear Sackett v. EPA, a case that asks the court to rein in the federal government’s jurisdiction over the nation’s waters (see related story).
Often the Supreme Court has the last word on how, and sometimes whether, our laws designed to protect the environment and public health are enforced,” said Manish Bapna, president and CEO of the Natural Resources Defense Council, in a statement today. “This year alone, the Court will hear two cases that could have a profound impact on the governments ability to address the climate crisis and protect the nations wetlands, streams and waterways.”
Bapna added: “Those cases underscore the importance of confirming justices and judges, like Jackson, who respect precedent and recognize the governments role in addressing consequential societal issues, like protecting the environment and public health.”
Biden plans to officially announce Jackson’s Supreme Court nomination later today. She would be the first Black woman on the bench.
“Judge Jackson is an exceptionally qualified nominee as well as an historic nominee, and the Senate should move forward with a fair and timely hearing and confirmation,” the White House said in a press release this morning.
Jackson, 51, will replace Breyer, who is 83 and plans to retire early in the summer. Jackson, a former Breyer clerk, is known for mirroring the justice’s moderate approach in legal disputes on issues ranging from presidential powers to environmental protection.
Rumors of an imminent Supreme Court nomination began swirling yesterday when the U.S. Court of Appeals for the District of Columbia Circuit, Jackson’s current bench, issued an unusual Thursday opinion. Although the court usually issues decisions on Tuesdays or Fridays, it issued a Monday ruling right before another D.C. In 2018, the Supreme Court was appointed Justice Brett Kavanaugh, a circuit judge.
In a rulingJackson yesterday joined Neomi Ro, a Trump appointee in concluding that the Federal Energy Regulatory Commission did not provide sufficient explanations for the termination of a contract between a Connecticut gas-fired power station and a regional grid operator.
Jackson is confirmed Sackett Clean Water Act may be one of her first cases as a Supreme Court justice. As in the West Virginia climate case, which deals with EPA’s ability to broadly regulate greenhouse gas emissions from power plants, the justices took the highly unusual step of granting certiorari to SackettOver the objections of Biden’s administration, which claimed the case is related a rule that the federal government has yet promulgate (Greenwire, Feb. 14).
Legal observers have attributed the Supreme Court’s unusual moves in Sackett West VirginiaTo the new 6-3 conservative minority. Jackson’s placement on the court would not shift its ideological balance, but her presence would help avert a deeper loss to the liberal minority.
The Supreme Courts new Conservative supermajority is on the precipice of overturning decades of long-settled precedents in a way that furthers a political agenda at the expense of basic rights and protections,” said Earthjustice Senior Vice President of Programs Sam Sankar in a statement. “We need fair-minded Justices who decide cases based on facts, science, and settled law, and who understand the Courts proper place in our system of government.”
Environmental record
Jackson, who has served less than a year at the D.C. Circuit issued what may have been her most well-known ruling in 2019, when she was still a District Court Judge.
Jackson refused to allow Don McGahn (then White House counsel) to testify in the congressional impeachment probe.
Jackson stated simply that the main lesson from the past 250 years in American history is that presidents are not kings.
Jackson, who was appointed by former President Obama to the U.S. District Court of the District of Columbia in 2012, did not vote against Trump’s administration.
Jackson rejected a challenge from Trump to his efforts to exempt himself from the bedrock environmental laws in order to build a border wall with Mexico. This was a blow for green groups involved in a multipronged attack to the project.
The Court finds that Congress clearly stated the limits of judicial control in legal claims that are not constitutionally challenged by the Court [Department of Homeland Security]Jackson wrote that the Secretary’s Authority to Waive Other-Applicable Legal Requirements Concerning the Construction of Border Barriers.Greenwire, Sept. 5, 2019).
Jackson was a D.C. District Court Judge and he made a few environmental rulings.
In 2017, she rebuffed Trump’s attempts to speed-track a review its environmental analysis procedures following the Deepwater Horizon disaster.GreenwireMay 5, 2017. The following year, she ruled for property owners challenging a Fish and Wildlife Service Map to protect a tiny threatened shrimp.Greenwire, Sept. 26, 2018).
Jackson had split the difference in timelines offered by environmentalists to the Trump administrations EPA earlier in 2018. In a ruling, Jackson granted the agency an extension for past-due reviews on air standards for nine industrial sector sectors.GreenwirePosted April 4, 2018.
Guam Superfund battle
Jackson in 2018 wrote an opinion in Superfund case. It made it all the the way to the Supreme Court last year and survived scrutiny by the 6-3 conservative majority.
The case concerned a huge dump site that was built by the U.S. in Guam during World War II. This was used by Navy to dispose off Agent Orange and other munitions.
Jackson found that a prior Clean Water Act settlement did in fact not prevent Guam from claiming U.S. dollar to clean up the site as required by federal Superfund law.
[T]here exists no formulaic means of determining when a particular settlement agreement has decided, determined, or settled the nature, extent, or amount of an entitys liability … and, for present purposes, therein lies the rub, Jackson wrote.Each superfund dispute has its own uniqueness, she said, and each settlement agreement is the result of individual negotiations between parties with idiosyncratic issues that influence the final content of the contract.
The case was taken to the D.C. Circuit reversed Jacksons decision and found that Guams Superfund claim had been time-barred by the 2004 Clean Water Act settlement. This left the tiny U.S. territory with a huge $160 million cleanup bill.
Guam brought its case to Supreme Court. They agreed to add Guam’s dispute to their docket. Guam received the support of a bipartisan group states at the briefing stage.
Justice Clarence Thomas authored the unanimous opinion that overturned the D.C. Circuit and agreed with Jacksons conclusion that Guams argument was a better interpretation of federal Superfund law.Greenwire, May 24, 2002.
Diversifying the high courts
Jackson would not only diversify the Supreme Court by her race and sex but also by her legal experience.
She would be the nation’s first justice to bring significant experience as a criminal defense lawyer to the highest bench since Thurgood Marshall, who retired in 1992. This quality is one of many that Biden prioritized when he was searching for federal court nominees.
In regard to each of these positions the President-elect Biden would like to nominate individuals who reflect America’s best qualities and look like America, wrote White House counsel Dana Remus, in a December 2020 LetterDemocratic senators
Jackson served as a U.S. Senator before she was elected to the federal bench. Sentencing Commission, where Jackson sought to reduce sentences for drug convictions. Prior to that, she was an assistant federal Public Defender.
Jackson was confirmed last year to be a D.C. judge. Jackson, a Circuit judge, recalled her experiences as a public defense attorney and how she was often surprised that her clients didn’t know much about the legal system. Jackson stated that she was a judge and tried to explain the proceedings to defendants.
The hearing last year illustrated that Jackson would be a “powerful nominee” to the Supreme Court, said University of Richmond law professor Carl Tobias.
“Jackson earned a well-deserved reputation as a very experienced, mainstream judge,” he wrote in an email.
Harvard Law School and Harvard College graduates could also bring their experience to the Supreme Court.
Jackson was a member of the team of lawyers who represented Mattel Inc. in a Supreme Court case against its landlord. They were accused of failing to comply with environmental laws governing the cleanup from manufacturing discharges by previous tenants.
2008: Mattel won an arbitration award by the Supreme Court.
Peter Hsiao was a partner at King & Spalding and recalled working on the case with Jackson.
He stated that she was a rising star who was destined for great things.
Jacksons odds in Congress
Biden has said he wants the Senate to confirm Jackson within about 40 days of the nomination’s being sent over to Capitol Hill, a timeline that reflects the average for past court nominees (E&E Daily, Feb. 2).
Jackson will likely face confirmation hearings by the Senate in mid-to late March. After that, a vote by the Senate will be held before the chamber goes on a two week spring recess.
Senator Majority Leader Chuck Schumer (D.N.Y.), who stated that he has no doubt Jackson will make an outstanding justice and vowed a fair and timely confirmation. Schumer stated that he would push for a Senate vote within 24 hours of Jackson’s Senate Judiciary hearings.
However, Mitch McConnell (R. Ky.), a Minority Leader, raised doubts early about Jackson’s support, noting that he had voted against Jackson’s nomination for the D.C. Circuit Court last summer. McConnell stated that Jackson has published only two decisions since then, one of which was reversed.
McConnell stated that Judge Jackson was a favorite choice of far left dark-money groups who have spent years attacking court structure and legitimacy. McConnell promised an exhaustive, thorough review of the nominee.
Biden promoted Jackson into the D.C. Circuit last year, her nomination won support from three Republican senators, Sens. Lindsey Graham, Susan Collins, Maine, and Lisa Murkowski, Alaska.
Graham, who had pushed Biden for South Carolina federal district court judge J. Michelle Childs to be nominated, attacked Jackson’s pick, claiming that the radical left won and that Childs was being hampered by media attacks. Graham supported the nomination of Democratic presidents for court judges in the past, regardless of their ideology.
Collins was more open to Jackson, however. She called her an experienced federal Judge with impressive academic as well as legal credentials.
Even if Jackson doesn’t win any Republican votes, Democrats can use their razor-thin 50-50 Senate majority with Vice President Kamala Harris as the tie vote to secure Jacksons confirmation without any bipartisan support.
Justice Amy Coney Barrett, Trump’s third nominee and newest court member, was the subject of a bitterly divided confirmation battle in 2020. This was after Republican Senate leaders moved quickly to install Barrett on the bench during the presidential elections despite having stopped former President Obama from doing so in 2016.
Barretts addition to court confirmed a 6-3 majority of conservatives, potentially for many decades to come.
Jackson was nominated for the D.C. District Court by Paul Ryan, a relative from the other political side. Ryan was also the Republican vice presidential candidate and former House Speaker.
Ryan’s sister-in-law, Dana Jackson, is married to the twin brother of Jacksons husband, Patrick.
On Twitter today, Ryan repeated the praise he gave Jackson during her District Court confirmation hearing: “Our politics may differ, but my praise for Ketanji’s intellect, for her character, and for her integrity, is unequivocal.”
Reporter George Cahlink contributed.
