The New Yorker Radio Hour - Ketanji Brown Jackson on Ethics, Trust, and Keeping It Collegial at the Supreme Court

Episode Date: November 22, 2024

Since the founding of the nation, just 116 people have served as Supreme Court Justices; the 116th is Ketanji Brown Jackson, appointed by President Biden in 2022. Jackson joined a Court with six conservative Justices setting a new era of jurisprudence. She took her seat just days after the Dobbs decision, when Justice Samuel Alito’s majority opinion overturned Roe v. Wade. She wrote a blistering dissent to the Harvard decision, which ended affirmative action in college admissions, in which she accused the majority of a “let-them-eat-cake obliviousness” to the reality of race in America. She also dissented in the landmark Presidential-immunity case. Immunity might “incentivize an office holder to push the envelope, with respect to the exercise of their authority,” she tells David Remnick. “It was certainly a concern, and one that I did not perceive the Constitution to permit.” They also discussed the widely reported ethical questions surrounding the Court, and whether the ethical code it adopted ought to have some method of enforcement. But Jackson stressed that whatever the public perception, the nine Justices maintain old traditions of collegiality (no legal talk at lunch, period), and that she sometimes writes majority opinions as well as vigorous dissents. Jackson’s recent memoir is titled “Lovely One,” about her family, youth, and how she got to the highest position in American law. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. Since the founding of this country, just 116 people have served as Supreme Court justices. The 116th is Justice Katanji Brown Jackson, who was appointed by President Biden in 2022. Jackson's two years have been marked by major decisions that define a new conservative era for the court. took her seat just days after the Dobbs decision, which overturned Roe v. Wade. Jackson wrote a blistering dissent to the end of affirmative action, the so-called Harvard decision, and she dissented as well on presidential immunity, which is surely going to be one of the

most consequential cases of our time. She didn't pull her punches there. Jackson wrote that the majority opinion took risks with presidential power that are, and I'm quoting here, intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms. Katanji Brown-Jackson has just published a memoir about her family, her early life, and how she got to the highest position in American law. The book is called Lovely One. Tell me a little bit about receiving the news of your becoming a Supreme Court justice. Paint a picture for us, if you will, about how that news was received and what was said

and how it was celebrated. Oh, well, goodness. Wow. It was incredible. But, you know, one of the things your listeners should know is that there's a pretty long lead-up to getting appointed to be on the Supreme Court or any other court because you have to be vetted

by the White House. You have to go through a long period of answering questions and filling out paperwork. So I knew I was possibly in the running. And, you know, I actually talk in the book about sitting down with my family, my teenage daughters at the time and really wanting to make sure that this would be a comfortable transition for them if I were to get the nomination because one of my daughters is neurodivergent and I was concerned that the spotlight would not be something that she would want to have. So we talked it through and everyone was supportive. and when I got the nomination, I was surprised because the president had announced that he was going to nominate or choose and publicly announce the person who was going to get the appointment by the end of the month. And this was a few days before the end of the month.

And I thought, surely I didn't get it because he waited until the last minute. Someone else is out celebrating. I'm not going to get it. And so when he called me, which is actually, recorded, I was totally, totally floored. Hello. Judge Jackson? Yes.

This is Joe Biden. How are you? Mr. President. Well, you're going to be more wonderful. I'd like you to go to the Supreme Court. How about that? Sir, I would be so honored. Well, I'm honored to nominate you.

And my family, of course, was overjoyed. Many of my family members, my husband especially said that they just knew. They knew that this was. my destiny and had known for a long time. Really? Did you? You know, I don't think I knew. I certainly wanted it. Even when I was in high school, I apparently wrote it my yearbook that I wanted to be the first black female Supreme Court justice to appear on a Broadway stage because I love theater too.

So I always had a dream of doing this work. but my brother, my husband, and others had said that they'd seen this coming for a long time. Now, when President Biden appointed you and you looked at all the other justices, the eight other justices, were you concerned that because of your philosophy of the law and your own views of the law, that you would be in a minority for a very long time to come? You know, I don't know that I was concerned. I did appreciate that having been mentored by Justice Breyer, who was my justice for whom I clerked years ago, I had a sense that he saw the law in a way that sort of put him in a minority and that I too might be in that position as well.

But I don't think it was a concern for me. One of the first dissents of yours that I read in full of it was so impressive but alarming. was on the immunity decision, something you described as a five-alarm fire. Why? Well, that opinion really, for me, highlighted a difference of opinion about the way in which the Constitution frames the separation of powers and the extent to which the executive branch leader should be treated differently. than others in our system when it comes to alleged criminal activity. And I had a pretty strong feeling and view about how criminal justice works. I had been a public defender in my time as a lawyer and had served on the Sentencing Commission

and really tried to lay out, in my opinion, the ways in which I thought the criminal justice system could accommodate allegations of wrongdoing. by the executive without forming an immunity, which sort of takes the executive or the person who holds an immunity outside of the ordinary process. And in my opinion, I talked about the fact that it appears that, you know, the sort of background norm was that the Justice Department had determined that it was possible for a president to be prosecuted. And perhaps that was doing some work in terms of preventing the kinds of abuses that one could imagine by an executive branch officer. And so the concern, I think, that I was trying to point to was if an immunity was announced, would that incentivize an office holder to push the envelope with respect to the exercise of their

authorities? And you do think it's an incentive, potential incentive? I thought one could imagine that being the case, and it was certainly a concern and one that I did not perceive the Constitution to permit. It would be valuable to get your thoughts on ethical issues around the court. Hugo Black was a former member of the Klan. William Douglas had, let's say, a complicated private life, Abe Fortis. Ethics kept him from becoming Chief Justice. In recent years, Ethics questions have been about receiving things, undisclosed gifts and travel and property deals. How much damage did those practices due to the court's reputation? And do you agree that the court's statement about ethics and its ethics code was too weak?

I would say that, you know, the court has recently adopted an ethics code that, is largely modeled on the lower court's ethics code, which is something that certainly has been a while around for a long time. I guess what I'm asking is, does it have an enforcement mechanism? The New York Times called this development toothless, the Brennan Center for Justice, which is at NYU Law School, of course, wrote that it was too weak because, and quoting here, the justice has proven themselves troublingly adept at sidestepping the current rules, whether for RVs, tuition, fishing trips, or real estate deals. In other words, who is in charge of enforcing this and can it be enforced if it's just kind of on the good intentions of the justices?

Well, there isn't an enforcement mechanism in the code as it currently exists. And, you know, different justices have different views about the enforceability of the code. As a lower court judge, I was subject to an ethics code that was enforceable. My view is that I haven't seen a good reason why the ethics code that the Supreme Court adopted shouldn't be enforceable. Lower court judges have to abide by an enforceable ethics code. Other justices have posited certain ways in which it could be made enforceable, but we have not yet determined or decided to do that. the profession, or in my case, the trade that I'm in, public confidence in is not exactly soaring for journalists, so I readily admit that. But a long list of public surveys have confirmed

a decline of public trust in the Supreme Court as well. Last month, the latest poll by the National Opinion Research Center at the University of Chicago found that seven and ten Americans believe the justices are, quote, putting ideology or personal politics above impartiality. If you take a step back, how do you explain this state of affairs? How much does it concern you? I think it's a very big concern. You know, I think that my mentor, Justice Breyer, used to say all the time and still does, that public trust is really all we have in the judiciary, that we don't have the power of the person, we don't have the military or any sort of force. The rule of law really is upheld because of the public's belief in the court and its rulings.

And so when there's a waning in that kind of trust, it certainly is a cause for concern. I think it's something that the court really needs to take seriously. But I do want to be clear. I think that there is a distinction between public trust waning as a result of the outcome of any particular decision. Because the court has to operate. It has a duty to interpret the Constitution and the law. And there are times when the court will issue rulings that may not be popular. You know, when we're sort of a counter-majoritarian at times because the Constitution is, prescribing limits on government authority and upholding individual rights in ways that may not be popular. But that's different, I think, than public trust waning because of concerns about partiality.

And so I do think that, you know, these are very important issues. So you think the decline in public trust is not because of any one issue or decision like Roe, being overturned. Do you think it's because of the behavior of the justices in some way or the political climate out there? In other words, what do you think is responsible for the court's decline in public confidence? Yeah, I don't know. I don't know what is responsible for the decline. I was just pointing out that I think they're going to get together and discuss it.

I'm not at liberty to talk about what we discuss. But I don't know. I mean, you know, I'm not a journalist. I haven't surveyed the public. I'm just pointing out that there are, there could be different reasons. And those might have different solutions, for example, or there might not be anything you can do about one or the other, depending upon where, what the nature of the problem is. That's Justice Katanji Brown Jackson of the Supreme Court.

We'll continue in a moment. This is the New Yorker Radio Hour. This is the New Yorker Radio Hour. And I'm speaking today with Justice Katanji Brown Jackson. Jackson. We spoke about the Code of Ethics at the Supreme Court and a troubling decline in the public's trust of the court. But if people perceive the court as politicize, Jackson stressed that the justices still try very hard to get along. We'll continue our conversation now. I want to ask a question about the culture of the court. Stephen Breyer, for whom you clerked, published an essay in the New York

times earlier this year highlighting the personal bonds between members of the Supreme Court. He wrote, in my 28 years on the court, I never heard a voice raised in anger in the private discussions with fellow justices. It was bridge playing. Famously, Ruth Bader Ginsburg went to the opera with Justice Scalia. They have been very longstanding relationships in the court. but some people read that and thought it was beside the point. The Times published an essay later by Linda Greenhouse entitled, Who Cares if the Supreme Court Justice has got along? What do you want people to know about the culture of the court?

What's it really like? I certainly care if the Supreme Court justices get along. I mean, we have lifetime appointments, so it's nice to get along with the people you work with. You know, I think the culture is very collegial. We have a job to do, and we are a very, very small group of people who are entrusted with this responsibility. And so we take our jobs seriously. We do try to do social things together every now and again. We certainly have the opportunity to-

Throw me a bone. Throw you a bone? Give me an example of that. All right. Let me give you an example. So when a new justice comes on, as I did, the justice who precedes them has to throw a party for them at the court. And that justice does some research and tries to figure out something interesting about the new justice, and then they make the party themed around that.

So Justice Barrett found out that I loved theater. And she threw a Hamilton-themed party where, she invited a former Broadway actress to come and sing numbers from the show. And she made a big sign that said the room where it happens that's now up in my chambers. And it was really lovely. And, you know, every justice has the same sort of story about different things that... And everybody came. Their predecessor did.

And everybody came and their spouses to welcome the new justice. Do you have any relationships on the court like Ruth Bader Ginsburg did going to the opera with Justice Scalia? Justice Barrett and I are probably the most similar in terms of our families. So we talk about our kids and we, you know, compare notes about that. You know, Justice Sotomayor has been a really wonderful mentor to me, helping me learn. You know, Justice Ginsburg and Justice Scalia had served together. on the lower courts. So they had known each other for many, many years before they came to the Supreme Court.

And I think that also helped to facilitate their relationship. Sometimes the language in opinions and dissents are not soft. They can be pretty pointed. In your dissenting opinion of the affirmative action case, for example, you said that the majority showed a, quote, let them eat cake obliviousness. So, which is pretty damning and says, what it says, when you publish a dissent like that, it's very critical of someone else's view.

How does lunch conversation go the next day? How do relations hold up? Well, you know, the court, I think, is pretty good at compartmentalizing. One of the rules of lunch conversation is that you don't get to talk about the substance of any cases. Whoa. Wait, you can talk about business at lunch? It's all polite? No. No. No. No. It's all polite. It's all movies and, you know, sports and kids' performances and that kind of thing. Really? Really.

And people stick to that. Yes, they do. And so, you know, it's both shocking and disappointing at the same time. Really? Why? Because I would think you'd have at it. I mean, I would think that lawyers and judges would live for this. for sharp argument and discussion?

Oh, well, you do have sharp argument and discussion at the appointed time, which is in the conference. But I think it's actually fantastic that we demonstrate the ability to set aside our sharp arguments and disagreements, which we've had, and still come together and break bread together and get along outside of the office. I think that's really important. During the 2020 election, while Donald Trump was still president, he wrote this. I'll spare you the capital letters.

A massive fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution, unquote. Is there really any situation in which part of the Constitution can be terminated? No. Do you want to say more? I mean, you know, I think it's really important to go back to basics, as I've tried to do since my time in office. And certainly since I've been on the Supreme Court, the judges and justices of the Supreme Court take an oath called the constitutional oath. and it requires that we support and defend the Constitution of the United States against all enemies, foreign and domestic.

So our number one responsibility is to defend the Constitution. And therefore, as a general matter, I cannot think of a situation in which the provisions of the Constitution can lawfully be set aside. This question may have seemed either wild or naive some years ago, but maybe not so much now. What happens if a decision of the court against a president is simply ignored? I'm not sure I'm crazy to ask such a thing. Does the court have any mode of redress? Well, this relates back a little bit to the question that you asked about public opinion and the extent to which the court has any means.

of enforcing its own opinions, its own rulings. And, you know, the answer, as far as I know, is there is no recourse other than, you know, public response, the understanding that we would be in a situation in which there would be, there would be authorities that are not following the court's rulings. This happened with fair frequency in the 1960s after the court started handing down rulings that were enforcing provisions of law requiring desegregation, for example,

in many places in the South. There was... Little Rock and elsewhere, sure. Exactly. there were court opinions that were handed down enforcing desegregation orders or, you know, handing down desegregation rulings. And there was no mechanism to enforce them other than the federal government, the president sending in troops. You know, you mentioned Little Rock. Those kinds of things actually required the enforcement of the executive branch in order to have them happen.

In 2015, Barack Obama nominated Merrick Garland to the court. Mitch McConnell refused to hold hearings. He stalled until Donald Trump was elected and nominated his own pick for the seat. What could a president legally, just as a question of not of politics, but of legality, what could a president do in that situation? Because inevitably, it might happen again. Oh, my goodness. I honestly don't know.

and I don't know that I could say even if I did know. You know, yes, the president has the prerogative of nominating people, but the Senate is supposed to confirm them. And under the rules as they currently exist, senators exercise that prerogative or not. I wrote a book about Barack Obama called The Bridge and spent a lot of time thinking about and reporting about his time at Harvard Law School. And it was really an interesting chapter in his life. I wonder what was for you most formative at Harvard Law School,

either politically or in terms of your legal thinking. Well, in the book, I talk about my year, my two years on the Law Review, which I think was the most formative. You know, I was not a law student who was very assertive. in class. You were quiet? I was pretty quiet, actually.

And, you know, which may seem a little strange now, given my personality. But at the time, you know, I went to law school. I was excited to be there. I had known I wanted to be a lawyer ever since I was very young when my father went back to law school when I was in elementary school. So, you know, I was just very happy to be. on site. But it's a little intimidating, I think, to go to Harvard Law School and have all these folks who are coming in, guns blazing, and all of your classes. And, you know, I, but I was fortunate enough to get on

to the Law Review. And I found that to be just an extraordinary time. So I just, it was like a small community within a larger law school. And I just loved it. Justice Jackson, thank you so much. I really appreciate your time. Thank you so much. Supreme Court Justice Katanji Brown Jackson. Their new book is called Lovely One, a memoir. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker.

Our theme music was composed and performed by Merrill Garbus of Tune Arts, with additional music by Louis Mitchell and Jared Paul. This episode was produced by Max Balton, Adam Howard, David Krasnow, Jeffrey Masters, Louis Mitchell, Jared Paul, and Ursula Summer. With guidance from Emily Boutin and assistance from Michael May, David Gable, Alex Barge, Victor Gwan, and Alejandra Deccett. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.