No one believes Ketanji Brown Jackson, now confirmed to the Supreme Court, would ever vote the same way on an abortion case as her new colleague, Justice Amy Coney Barrett. Their ideologies are too different. As Judge Richard Posner points out, regardless of what they say about their adherence to precedent and the like, judges are fundamentally ideological. They cannot be anything else without a methodological approach to decision-making, such as cost-benefit analysis, that could lead to alternative outcomes. … Evidence exists that judges’ decisions are not sensible resolutions but are influenced by their ideologies. For example, the legal scholars Alma Cohen and Crystal Yang found that Republican-appointed judges in federal district courts gave longer prison sentences to Black defendants than did Democratic-appointed judges.

An op-ed by Premal Dharia: Judge Ketanji Brown Jackson will officially take her place on the Supreme Court later this year, having publicly endured — and defeated — no small number of outlandish efforts to block her ascent. This is a historic moment for our country, and for so many people within it; indeed, much has been rightfully shared and celebrated now that a Black woman who is a former public defender has been confirmed to the high court.

Ketanji Brown Jackson has been confirmed as the first black woman to sit on the US Supreme Court in its 233-year history. The judge secured the life-time role following a 53-47 vote in the US Senate, following fierce questioning from critics. Judge Jackson, 51, will also be the first former public defender to sit on the Supreme Court and the third black judge to sit. … Guy-Uriel Charles, Harvard Law School professor and an expert in race and law, explained how Jackson may impact the court. He said: “I do think that as a black woman she will bring credibility on issues of race and issues of gender. On issues of race, she might serve as a counterweight to Justice Thomas. “In particular, I think young black girls will have an even stronger sense that all avenues, especially in law, are open to them.” … Former US Solicitor General Charles Fried told Sky News he backed her because she was the “absolutely ideal nominee.” “She’s had life experience, where she’s had to fight her way up and succeeded at every stage,” he said. Mr Fried, who has taught at Harvard Law School since 1961, added that his experience as a public defender “lends a very important dimension of perspective to the court”.

As Kamala Harris made history in her speech accepting the vice presidential nomination in 2020, she broke into a broad grin as she invoked the name of her hero: Constance Baker Motley, the first Black woman to serve as a federal judge. Eighteen months later, Motley’s memory was summoned again, this time by Judge Ketanji Brown Jackson upon her nomination to the Supreme Court. … “It tells me she knows her history — the history of the civil rights movement,” said Tomiko Brown-Nagin, a Harvard Law professor and author of “Civil Rights Queen,” a newly released biography of Motley.

During periods of autocratic, populist upheaval, judges tend to find themselves in the political crosshairs. Faced with leaders who are bent on hollowing out the rule of law, the judiciary often must choose between bending the knee and defiantly asserting the supremacy of fundamental legal norms, come what may. … Still, not everyone is quite so worried about the political nature of America’s judiciary, nor with the populist direction that many democracies are taking (or have taken). As Harvard Law’s Mark Tushnet and Bojan Bugarič of the University of Sheffield write in their new book, Power to the People, populism in and of itself is not the threat that many commentators and politicians have painted it to be. They prefer to view populism as a means of governing, which “must be considered together with its host ideology.”

Judge Ketanji Brown Jackson’s confirmation hearings may have been historic, in that she is the first Black woman nominated for the Supreme Court. But they have not been without precedent, at least with regard to questions on crime and race that she faced from some Republican senators, such as Tom Cotton of Arkansas, who have tried to portray her as “soft on crime.” … Guy-Uriel Charles, a professor at Harvard Law School, attributed that to what he described as a combination of “extreme partisanship” and racial and gender dynamics. “There’s no doubt that the Republicans are trying to score as many partisan points as they possibly can with their base, and that they believe that there is some retribution to be paid for past Republican nominees,” such as Amy Coney Barrett and Brett Kavanaugh, he said. “So part of their motivation is clearly partisan. One has to account for that.”

Judge Ketanji Brown Jackson is defending her record during the second day of hearings on her nomination to the Supreme Court. Alan Jenkins, professor of practice at Harvard Law School, joins CBS News’ Tanya Rivero and Nikki Battiste with more on how the judge is responding to certain lines of questioning.

After all of the entreaties from top Republicans to show respect at Judge Ketanji Brown Jackson’s confirmation hearings, Senator Ted Cruz on Tuesday afternoon chose to grill the first Black woman nominated for the Supreme Court on her views on critical race theory and insinuate that she was soft on child sexual abuse. The message from the Texas Republican seemed clear: A Black woman vying for a lifetime appointment on the highest court in the land would, Mr. Cruz suggested, coddle criminals, go easy on pedophiles and subject white people to the view that they were, by nature, oppressors. … But to Mark Victor Tushnet, a Harvard law professor who clerked for Justice Marshall, the attacks against Judge Jackson have been far less veiled than those against Justice Marshall. “Dog whistles are supposed to be things that you can’t hear but that you receive in the subconscious,” Mr. Tushnet said. “This is all quite open.”

NPR’s Steve Inskeep talks to Tomiko Brown-Nagin, dean of Harvard Radcliffe Institute, about Supreme Court nominee Ketanji Brown Jackson’s judicial philosophy.

An op-ed co-written by Nancy Gertner: It’s not that US senators are against all lawyers who defend clients, however savory or unsavory the clients may be. They had no problem confirming current US Supreme Court justices who defended large corporations for some of their careers (Chief Justice John Roberts and Justices Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). Nor was this an impediment to the confirmation of appellate judges. About 6 in 10 appellate judges are former corporate lawyers from large firms. Given this profile, it is no surprise, then, that the parties that appeared before the Supreme Court that were backed by the US Chamber of Commerce won 83 percent of the time in the most recent term.

The Presidential Commission on the Supreme Court of the United States had an image problem from the moment President Biden established it last April, fulfilling a campaign promise that he would examine what might be done with a Court that was “getting out of whack.” The Democratic left, hungry for payback for the two seats they regard Donald Trump and Mitch McConnell as having “stolen,” dismissed it as an effort to shield the president from having to confront their demand to add two or even four additional seats to the Court. Others simply shrugged after noting that Biden asked the thirty-four-member commission—mostly law professors, arrayed from the center-left to the center-right—not for concrete recommendations but simply analysis, for the president’s consideration, of “the principal arguments in the contemporary public debate for and against Supreme Court reform.” … “What did the Warren Court stand for?” the legal historian Morton J. Horwitz asked in The Warren Court and the Pursuit of Justice (1998), a paean to the period. Horwitz and Breyer were both born in 1938. Their contemporaries, titans of liberal constitutional scholarship like Owen Fiss of Yale and Laurence Tribe of Harvard, eventually came to staff and even dominate the nation’s law school faculties. Nearly any member of this cohort, many of them Warren Court clerks like Fiss and Tribe, might have given an answer similar to the one Horwitz offered: “Like no other court before or since, it stood for an expansive conception of the democratic way of life as the foundational ideal of constitutional interpretation.”

If Ketanji Brown Jackson is confirmed, she will be the first Black woman on the bench in the Supreme Court’s history. Demography is important, because the court’s perceived legitimacy will always to some degree depend on the extent to which it seems to reflect the country as a whole. Ronald Reagan recognized as much when, in 1980, he made a campaign promise to nominate the first woman to the court — a pledge motivated in part by concern that the GOP needed to recruit female voters. Biden’s promise to nominate a Black woman was meant in part to shore up the Black vote in the 2020 South Carolina primary. In both cases, the hard demands of electoral politics and more abstract notions of democratic legitimacy converged. … Why is educational pedigree so important on the court? Should it be? In Bloomberg, Noah Feldman wrote that Jackson’s “experiences as an African American woman and as someone who had an uncle imprisoned on a drug felony will matter — as will her elite educational background.” I spoke with Feldman, a professor of law at Harvard Law School, about legitimacy, meritocracy, the Federalist Society, the role of clerkships, and how Jackson’s education matters.

President Biden has nominated Ketanji Brown Jackson to replace retiring Supreme Court Justice Stephen Breyer. Harvard Law School professor Alan Jenkins joins CBS News’ Lana Zak to discuss.

Ketanji Brown Jackson closed her remarks at the White House ceremony for her Supreme Court nomination by paying tribute to Constance Baker Motley, the first Black woman federal judge in U.S. history. Jackson, 51, who would make history as the Supreme Court’s first Black woman justice, noted she and Motley share a coincidental connection: They were born the same day 49 years apart. … “One can see perhaps a parallel in the way that some are criticizing Judge Jackson’s career as a public defender–-or really her two-year stint as a public defender–-somehow implying that she is not suited to the judiciary because of that experience representing criminal defendants,” said [Tomiko] Brown-Nagin, who is dean of Harvard’s Radcliffe Institute for Advanced Study.

To the list of obvious firsts, a Justice Ketanji Brown Jackson would add another: the first former public defender to sit on the United States Supreme Court. It’s an entry on her résumé that a few years ago might have been politically unthinkable for a nominee to the highest court but is now, thanks to years of work by the progressive legal movement and criminal-justice reformers, a boon. … Indeed, she would join a Supreme Court that, on criminal cases, “consists largely of arguments by expert prosecutors, offered to former expert prosecutors, about cases potentially channeled to the Court by prosecutors,” as Harvard law professor Andrew Crespo put it in a 2016 Minnesota Law Review article. They may idealize the system and not understand how arbitrary or unfair it can be in practice. Thurgood Marshall, who retired over 30 years ago, was the last justice with “direct familiarity of modern-day policing and prosecution, as they are so often experienced by the stopped, the frisked, the arrested and the accused,” Crespo added.

President Biden announced Friday the nomination of federal Judge Ketanji Brown Jackson to replace retiring Justice Stephen G. Breyer, a historic choice that fulfills the president’s pledge to nominate the first Black woman to the Supreme Court and would make Jackson, 51, just the third African American in the high court’s 233-year history. … “If you have represented people who have gone through that system, you understand its injustices because you have seen them up close,” said [Andrew] Crespo, who was a law clerk to Breyer and Justice Elena Kagan. “Someone who comes to the bench with those perspectives will be not just a welcome addition to the bench, but someone who moves the court in a welcome direction.”

An op-ed by Noah Feldman: On a day when the world’s eyes are rightly focused on a brazen challenge to the post-Cold War international order, Americans can rightly celebrate a domestic change that should make us proud: the nomination of Judge Ketanji Brown Jackson as the first Black female justice of the Supreme Court.

Ketanji Brown Jackson’s nomination to the U.S. Supreme Court fulfills a promise President Biden made while running for office: to nominate the first Black woman for the highest court. Critics said he was prioritizing identity over qualifications, but many have praised Jackson for being well equipped for what could be a historic appointment. Tomiko Brown-Nagin, dean of the Harvard Radcliffe Institute, wrote a book about the first Black woman to ever become a federal judge, Constance Baker Motley. She explains how that, and much more, paved the way for this nomination.

As President Biden considered a handful of Black women for the Supreme Court, two things drew him to U.S. Circuit Court Judge Ketanji Brown Jackson, according to those familiar with his decision making process. Jackson was molded by her predecessor, the retiring Justice Stephen Breyer; and, like Biden, she came with a rounded resume bolstered by her work as a public defender. … “It spoke to him in an important way,” retired Harvard University law professor Laurence Tribe said of Jackson’s public defender years. “He understood in a way that a president who had not himself been a public defender might not have been able to understand just what that meant and why it gave her a distinctive perspective.”

President Biden on Friday nominated federal Judge Ketanji Brown Jackson to the U.S. Supreme Court to fill Justice Stephen Breyer’s pending vacancy. If confirmed, she would be the first Black woman to serve as a Supreme Court justice. We speak with Harvard constitutional law professor Tomiko Brown-Nagin about the nomination of the 51-year-old federal judge and the parallels between her and the first Black woman federal judge and civil rights legal icon Constance Baker Motley, who was at one point eyed for a Supreme Court nomination.

An op-ed co-written by Kenneth W. Mack: As President Biden prepares to nominate the first Black woman to the Supreme Court, it’s worth pausing to consider the story of Constance Baker Motley, the first African American woman appointed to the federal bench. In 1975, Motley presided over a case in which a White woman, Diane Blank, had filed a class-action suit against the law firm Sullivan & Cromwell for sex discrimination.

On Jan. 27, President Biden made history by announcing that he would nominate a Black woman to the Supreme Court by the end of February. “While I’ve been studying candidates’ backgrounds and writings, I’ve made no decision except one,” Biden said in remarks made at a White House event to formally announce the retirement of 83-year-old liberal Justice Stephen Breyer. “The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue.” … “African American women have historically operated under the disabilities of being women and Black, particularly during times when those groups had less power,” Annette Gordon-Reed, a Harvard law professor and Pulitzer Prize–winning historian, told Yahoo News. “To fight through, that has often required great resilience and creativity.”

President Joe Biden’s first U.S. Supreme Court appointment won’t alter the 6-3 conservative majority, but her presence could spawn subtle changes on both the left and right sides of the bench. Adding the court’s first Black woman to replace the retiring Stephen Breyer, as Biden has said he intends to do, could prompt conservative justices to adjust how they approach cases involving race and gender. … The potential impact of a new justice might depend a lot on “personality and background,” said Harvard Law professor Guy-Uriel Charles.

An op-ed by Adrian Vermeule: Justice Stephen Breyer last week announced that he will retire at the end of this Supreme Court term. If the recent past is any guide, whoever is nominated to replace him will face a barrage of attacks from political opponents. Every Supreme Court nomination is now a battleground, featuring slander and even angry demonstrations, as when protesters of Justice Brett Kavanaugh’s nomination invaded the Senate building and attacked the very doors of the court.

Justice Stephen G. Breyer has a mild temperament, and he writes cautious opinions. But his questions from the bench can be wild flights of fancy, enlivening the proceedings with musings about marshmallow guns, aspirin fingers, tomato children and the Pussycat Burglar. In an affectionate tribute issued soon after Justice Breyer announced last week that he planned to retire, Chief Justice John G. Roberts Jr. noted this striking aspect of his colleague’s work. … “Breyer’s unique signature at oral argument — which challenged and often befuddled lawyers appearing before the bench — was the sheer length of his questions,” Richard J. Lazarus, a law professor at Harvard, wrote in an essay published on Friday.

Justice Stephen Breyer had not even formally announced his retirement before Republicans and conservative legal operatives began their racist crusade against his as-yet-to-be-named successor. During the 2020 presidential campaign, then-candidate Joe Biden promised to nominate a Black woman to the first seat that came open. Biden has many extraordinary candidates on his short list. But for reasons that should surprise nobody who’s been paying attention to recent history, these early commenters do not appear to see these candidates’ impeccable credentials and extraordinary accomplishments. Instead, they have opted to prejudge any Black woman, and indeed all Black women nominees, as inherently inferior and underqualified. … Some background that is too often left out of these discussions: Women of color were locked out of the judiciary for most of American history. The first Black woman to serve on a federal court, Constance Baker Motley, was not appointed until 1966. Motley had a sterling track record of accomplishments: She argued before the Supreme Court on 10 occasions and won nine times, assisted Thurgood Marshall in litigating Brown v. Board of Education, and tried myriad cases in lower courts, including several in New York.* But as Harvard law professor and legal historian Tomiko Brown-Nagin has recently documented, the American Bar Association hesitated to approve Motley. Why? The white men who ran the ABA doubted whether she was sufficiently qualified. They ultimately gave her a lukewarm rating of “qualified” rather than “well qualified,” even though she was one of the most successful and experienced litigators of her era—an advocate so committed that she risked her life to defend her Black clients in the Jim Crow South.

Supreme Court Justice Stephen Breyer is retiring, and President Joe Biden has promised to nominate a Black woman in his place. Laurence Tribe, Harvard professor emeritus, speaks with Jim Braude about Breyer’s legacy, and what his absence will mean on the Supreme Court.

President Biden has vowed to nominate the first Black woman to the Supreme Court as Justice Stephen Breyer prepares to retire. Harvard Law professor Alan Jenkins joins CBS News to discuss who the potential nominees are and what the appointment will mean for the highest court in the country.

Justice Stephen Breyer’s decision to retire from the Supreme Court has led to the usual frenzy over who his replacement might be. But it’s also worth noting how he shaped important areas of the law – one of them, administrative law. Now, that might sound like a boring, dry topic, but it actually really matters. Administrative agencies like the Environmental Protection Agency or the Centers for Disease Control play an important role in determining policy in key areas of life, like how much of a certain chemical is safe enough to have in drinking water or implementing vaccine requirements. … For that, we’ve called Adrian Vermeule. He is a constitutional law professor at Harvard University School of Law, and he is one of the co-authors of the book “Administrative Law And Regulatory Policy,” along with Justice Breyer, and he is with us now. Professor Vermeule, welcome. Thank you so much for joining us.

Fox News host Sean Hannity misleadingly claimed that President Joe Biden was venturing into unprecedented territory with his pledge to nominate a Black woman as a replacement for U.S. Supreme Court Justice Stephen Breyer, who is retiring after 28 years. … Nikolas Bowie, assistant professor of law at Harvard Law School, said Hannity’s claim “ignores the reality that from 1789 through 1967, every president made race and gender a defining factor in their selection process by refusing to nominate anyone other than a white man.” … Tomiko Brown-Nagin, another professor of constitutional law and history at Harvard University, said the late Justice Antonin Scalia’s Italian background was a “defining, positive factor in Ronald Reagan’s selection of him,” citing a report in Slate, a progressive online magazine.

Latino advocacy groups, lawmakers and scholars had nothing but praise for Justice Stephen Breyer, the great-grandson of immigrants from Romania, after he announced his retirement from the Supreme Court on Thursday. “I think he was a moderate liberal who could be counted on to come out on the right way on a lot of cases that affected Latinos,” said Kevin R. Johnson, the dean of the University of California Davis School of Law, who is of Mexican American heritage. … Andrew Crespo, professor at Harvard Law School, clerked for Breyer during the 2009-10 term. He recalled going to lunch with the justice, which required finding a spacious restaurant, “so that, when we’re sitting down and he’s telling us all these stories about the court, that we weren’t accidentally sitting next to a reporter.” “He bounced back from defeats faster than, I think, his clerks did,” Crespo told Bloomberg Law’s Cases and Controversies podcast. “He always thought maybe, maybe the best will come.”

After Antonin Scalia’s unexpected death in 2016 left a seat vacant on the US Supreme Court, the 11-year-old daughter of federal judge Ketanji Brown Jackson drafted a letter to then-president Barack Obama recommending her mother as a replacement. That effort proved unsuccessful, but six years later, Jackson is among the frontrunners to become the newest justice on America’s highest court, after the retirement of Stephen Breyer later this year. … Laurence Tribe, professor emeritus at Harvard Law School, Jackson’s alma mater, said: “It will be challenging, to say the least, for the Republican senators who voted for her . . . to explain why suddenly they are not in favour of her elevation to the Supreme Court.”

As Justice Stephen Breyer prepares to step down from the Supreme Court later this year, legal experts are highlighting a lesser-known piece of his legacy — an impact on clean energy and electricity markets. Yesterday, President Biden formally announced Breyer’s plans to retire at the end of this court term during an event at the White House. The 83-year-old justice has served for 28 years on the high court, and four decades as a federal judge (Greenwire, Jan. 27). … “Breyer opened the door to a practical view of FERC’s jurisdiction that is adaptable to new technologies and is not fixed by the industry structure that existed when Congress passed the [Federal Power Act] in 1935,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, in an email.

CNN’s Nia-Malika Henderson reacts to some conservative commentators blasting President Biden’s plan to pick a Black woman for the Supreme Court [including commentary from Professor Andrew Crespo].

The White House is about to launch a lightning attempt to replace Supreme Court justice Stephen Breyer, who is expected to leave a vacant seat on the bench just months before midterm elections that could tilt the balance of power in the Senate. President Joe Biden’s administration is facing pressure to move quickly to ensure they do not lose progressive seats on America’s highest court, which is split 6-3 between conservative and liberal justices. … “It’s absolutely indispensable that someone be nominated as soon as the resignation makes possible,” said Laurence Tribe, professor emeritus at Harvard Law School.

An op-ed by Noah Feldman: The news on Wednesday of Justice Stephen Breyer’s retirement from the Supreme Court at the end of this blockbuster term marks an historical transition point. One of the great pragmatists in the court’s history, Breyer is the last of President Bill Clinton’s appointees to still be serving. Only Justice Clarence Thomas, appointed by President George H.W. Bush in 1991, now remains from the centrist court that sat together for longer than any other configuration of justices in history.

Justice Stephen Breyer is known for letting his flamboyant intellect shine on the bench. And, according to those who clerked for him, Breyer’s personality outside of the courtroom was no different. … Breyer was described as someone with an insatiable, extroverted mind, who thrived on conversation—sometimes to a fault. Andrew Crespo, a former clerk and current Harvard Law School professor, said going to lunch with the Justice required finding a restaurant with lots of space “so that, when we’re sitting down and he’s telling us all these stories about the Court, that we weren’t accidentally sitting next to a reporter.”