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A Public Defender on the High Court

Ketanji Brown Jackson will be the first public defender to serve on the Supreme Court. Here’s why it matters.

March 1, 2022
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When Ketanji Brown Jackson was applying to college, her high school guidance counselor told her not to set her sights too high. Now an experienced judge, with stints as a public defender, a U.S. Sentencing Commissioner, and a lawyer in private practice, Jackson is poised to make history as the first Black woman to ever serve on the Supreme Court, as well as the first former public defender. 

Jackson’s nomination is a milestone for bringing greater diversity of life experience to the bench. Chief Justice John Roberts famously described the role of a judge as calling “balls and strikes.” Less remembered is Sen. Herb Kohl’s response that “no two umpires . . . have the same strike zone.” As Kohl explained, the experiences judges bring with them to the bench inevitably shape how they understand the contours of the law and facts in front of them.  

That’s why having judges who have seen different aspects of the American experience is so important. Federal district court Judge Carlton W. Reeves put it well: “Where people come from, what they have lived through, what they do with the time they have, and who they spent that time with — it all matters.”

One of the many ways that Jackson would bring overlooked perspectives to the Supreme Court is through her experience representing criminal defendants. The Supreme Court plays a major role in defining the constitutional rights of defendants — from interactions with the police, to the rights of the accused during trial, to the scope of permissible punishments — as well as in interpreting federal criminal laws. Every year, the Court considers thousands of petitions in criminal cases. 

But while prosecutors are well-represented on the Supreme Court (on the current Court, Justices Samuel Alito, Sonia Sotomayor, and Clarence Thomas all served as prosecutors), the Supreme Court has never had a justice with experience as a public defender. 

The last justice with substantial experience navigating the criminal justice system on behalf of poor defendants was the civil rights icon Thurgood Marshall, who retired from the Court more than 30 years ago. It’s part of a broader pattern: across federal and state courts, judges with defender experience are underrepresented in favor of those with prosecutorial and corporate backgrounds.

This is an experiential chasm. Justice Sandra Day O’Connor described how important Marshall’s “ear of a counselor” was for the Court — someone “who understood the vulnerabilities of the accused and established safeguards for their protection.” It can be hard to see the unfairness baked into our criminal justice system from behind the bench. And not surprisingly, research suggests that judges with criminal defense experience often approach criminal cases differently.

Last year, after eight years as a federal trial court judge, Jackson appeared before the Senate for a hearing to be confirmed to the DC Circuit Court of Appeals. She reflected on the “direct line” between her public defender experience and her approach as a judge, including how she took “extra care” to make sure the defendants appearing before her understood what was happening, having seen firsthand how little her clients understood the legal system. “I think that’s really important for our entire justice system.” It is.

One new voice is unlikely to transform an increasingly radical conservative majority on the Supreme Court. But giving defenders a seat at the table — and a voice in dissent — still matters. It’s a step towards achieving courts that deliver on the promise of equal justice for all, and a landmark worth celebrating.