The Highest Ranking U.S. Supreme Court Justice to Judge the Way of the Court: Resolving the Alabama State Lawyer’s Case Against Race Neutral Redistricting
Supreme Court Justice Ketanji Brown Jackson has been basking in the celebration of her investiture and is now a dynamic presence at oral arguments.
She will be the last justice to have her say on the way cases are decided when she sits in an oak-paneled room off the chambers of John Roberts on Friday. And she will confront the reality that today’s court is dominated by a 6-3 conservative-liberal majority, and she is one of the three.
She countered, for example, arguments by an Alabama state lawyer on Tuesday who pressed a “race neutral” approach to redistricting that would gut a remaining part of The landmark of the 50’s Voting Rights Act.
Jackson’s intensity in the first four arguments recalled some junior members of the past, such as the late Justices Ginsburg and Scalia who refused to hold back among their more seasoned colleagues.
Adam Feldman, who compiles argument data for his Empirical SCOTUS blog, documented Jackson’s active role. In a Twitter post after the Tuesday voting-rights case, he observed that Jackson spoke more than anyone else, noting of her total 2,269 words, “very seldom do we see a justice eclipse 2,000 words.”
The justices of the U.S. Supreme Court are known for their discipline, even in modern times. They have been talking and talking a lot in recent months, sometimes doubling the amount of time allotted for oral arguments.
The conference, as consequential as it is, can be stilted. The justices proceed in rigid order of seniority, and no justice is allowed to speak twice until each justice – in order of rank – has offered his or her view.
The dynamic on the bench this week made it seem like some justices feel a sense of urgency about the direction of the court, either against or in favor of the rightward trend. The new jockeying adds a dimension to a reconstituted court, reconvening after the most tumultuous term in decades that included the reversal of a half-century of abortion rights.
Sotomayor sits with the four justices to Roberts’ right, between the more senior Thomas, who only intermittently asked questions this week, and Neil Gorsuch, who posed none during the Alabama case. Amy Coney Barrett was at the far end of the bench.
Alito, a 2006 appointee of Republican President George W. Bush, and Kagan, a 2010 appointee of Democratic President Barack Obama, often enter through the crimson velvet drapes ready to make their (inevitably dueling) positions clear. Kagan, especially, seems to have a plan in mind to try to pick up any possible votes in the conference.
The Alabama Controversy: Where the First Justices (turned Chief Justices) Role in Voting Rules for Equality of Protection, and Where Does That Happen?
The Alabama controversy revolved around standards for vote-dilution claims to state redistricting plans under a section of the law that forbids any practice that denies a citizen the right to vote on account of race.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” she said, “because I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about.”
The justices like it that way because it makes it a lot more difficult for reporters to meet deadlines. Some of their questions are unanswered and they like that they don’t leave an argument. And therefore the chief justice doesn’t impose the discipline of the clock, even when the justices are more than an hour over the allotted time.
The court has a mechanism to keep the lawyers on the straight and narrow. When there is only five minutes left, there is a white light at the lectern and a red light when time is up.
It dates back to the outbreak of the swine flu. Remember that the justices continued to hear arguments, but by phone, because they thought Zoom wasn’t safe from crashers and crashing. When you have arguments over the phone you can’t see each other. So, to prevent the justices from constantly interrupting each other, the questioning went in order of seniority, with each justice allotted just a few minutes, instead of the usual free-for-all.
When they returned to the bench in 2021, they could now see each other again, but instead of returning to the old discipline, they started to speak longer and longer. And, the system that now exists at the court is that for however long a lawyer has — let’s say, a half hour — he or she faces the basic free-for-all that used to exist pre-pandemic. But instead of the oral argument ending there, the justices do a whole second round, with each justice going in order of seniority, followed by a final check from the chief justice to make sure his colleagues have no more question.
To get a picture of what it’s like, let’s take the last sitting in which there were nine cases argued over six days. One of the three big cases was the independent state legislature theory, another was public accommodations laws that require equal treatment for everyone, including same-sex couples and the third was an important immigration case.
I hear that there was a big mess this morning at Arlington National Cemetery. it was the late Chief Justice Rehnquist turning over in his grave.”