Ketanji Brown Jackon’s appointment to the United States Supreme Court is certainly historic, but what does it mean for workers’ rights? There is good reason for optimism. The National Employment Lawyers Association celebrated Jackson’s nomination and lauded her for her general friendliness to employees. And the great blog OnLabor discussed Jackson’s record on labor unions. Though not directly related, it is worth noting that when she joins the Supreme Court, Jackson will be the first public defender on the bench since Thurgood Marshall. Jackson has also not shied away from calling out the powerful for abusing human rights when that was an unpopular stance to take.
Her actual record on the bench, however, is a bit mixed. I examined over thirty employment discrimination decisions by then-Judge Jackson. I found her to be a clear thinker and writer with a profound respect for precedent. Out of sixteen Title VII cases, she ruled entirely for the employer nine times and the employee three times. Out of age discrimination cases, she ruled entirely for the employer five times and the employee once. For disability discrimination cases, the record is two to one. These do not appear to be great numbers. But what is most interesting about the outcomes of Jackson’s employment discrimination cases is how often she ruled for the employee on some issues and the employer on others. This is a more positive sign than it might appear at first - particularly at the district court level. The key thing to keep in mind is that Plaintiffs frequently bring multiple claims of varying strength in district court. A Judge granting what appears to be only a partial victory to the Plaintiff may actually be providing everything the Plaintiff needs to ultimately prevail. (At the appellate court level this is less true, and partial victories are more often pyrrhic ones. But most of Judge Jackson's record is at the district court.)
We should also keep in mind that Jackson’s new job is different from her recent ones. A district judge or appellate judge following existing precedent faces different constraints than a Supreme Court justice resolving a disagreement about the law among the lower courts or deciding a new issue in the law.
Drilling deeper, her writings show empathy to those who have faced discrimination. In one case, Jackson ruled against the plaintiffs on an important but very technical point (class certification), but her opinion showed that she was committed to the justice and fairness that those who have faced discrimination deserve. Similarly, just over a year ago, Jackson ruled for people with disabilities who were seeking to have their right to equality recognized by Uber. These threads make me optimistic that Justice Jackson may help make the law work better for working people.
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