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The Supreme Court in the Public Crosshairs
Posted On July 12, 2022
On Feb. 25, 2022, President Joe Biden nominated Judge Ketanji Brown Jackson to replace retiring Justice Stephen Breyer on the U.S. Supreme Court. While Justice Breyer had announced his plan to retire in January, his retirement didn’t take effect until the end of the term. Judge Jackson was confirmed by the Senate in April and was finally sworn in as the 116th justice to serve on the Supreme Court on June 30, 2022.

The intervening 4 months between Justice Jackson’s nomination and swearing in may well prove to be the most monumental and controversial period of time in the Supreme Court’s 230-plus year history. From the leaked draft of a proposed opinion on abortion to the actual decision that overruled Roe v. Wade to a series of other decisions cementing the 6-3 conservative majority and raising concerns about other precedents on contraception, privacy, and LGBTQ+ rights, the Supreme Court is in the public crosshairs like at no other time in recent history.

All-Time Low Approvals

Justice Jackson joins a court that has seen its approval ratings drop to all-time lows. In a Gallop poll conducted after the leak of the proposed abortion decision but before the decision’s release, only 25% of respondents indicated that they had a “great deal” or “quite a lot” of confidence in the court, a 50-year low. In polls conducted since the abortion decision was released, as collected and reported by FiveThirtyEight, the court’s overall approval level was reported as low as only 31%. Not that any of the three branches of government are doing all that well, with President Biden’s approval rating at 38.6% and Congress’ rating having dropped down to 16%.

As Justice Jackson joins the court, speculation is widespread about both what kind of justice she will be and what kind of influence she will bring to the court. She was nominated by a Democratic president—replacing Justice Breyer, who was also nominated by a Democratic president—and is expected to join with fellow Democratic nominees Elena Kagan and Sonia Sotomayor as the three-person “liberal” side of the court against the six Republican-appointed “conservative” members of the court.

6-3 Votes

In the 2021–2022 term, the court released 64 opinions, of which six were per curiam opinions. These come from the court as a whole and do not have a vote or name the opinion’s author. Of the remaining 58 opinions, nearly half of them were decided by a 9-0 or 8-1 vote, suggesting little to no voting along conservative versus liberal lines. However, 17 opinions were decided by a 6-3 vote, and of that number, 10 of them—17% of the total—broke down exactly along conservative versus liberal lines. This includes the court’s decisions on abortion, gun control, church and state, the environment, and civil rights.

The remaining decisions don’t fall directly on conservative versus liberal lines, but still reflect the direction of the court and its justices. Two political science professors have developed a metric for determining a justice’s place on the ideological continuum. For the 2020–2021 term, Justice Breyer was the second most liberal justice, and Justice Sotomayor was the most liberal. While the data confirmed that there were six justices on the conservative side of the continuum, Chief Justice John Roberts and Justice Brett Kavanaugh were notably less ideological than Justice Samuel Alito (who drafted the abortion decision) and Justice Clarence Thomas (the most conservative member of the court).

Historic Firsts

Justice Jackson brings a number of historic firsts to the court, as well as a significant personal history. She is the first Black woman to serve on the court, and for the first time in its history, the court will have four women justices. Jackson’s personal and legal background may also help to illustrate her approach to her new job. Her father was an attorney, and her mother was a school principal. Jackson worked for TIME magazine prior to attending Harvard Law School. She clerked for federal courts at both the trial and appellate levels, then clerked for Justice Breyer on the Supreme Court. She also worked as a special counsel to the U.S. Sentencing Commission and at a federal public defender’s office before being appointed by President Barack Obama to the U.S. District Court, then to the Court of Appeals by President Biden.

In an interview with The Washington Post after her confirmation but prior to her swearing in, Justice Jackson spoke of Justice Breyer as “the ultimate consensus builder.” She also talked about her parents growing up in Florida, where they had to deal with segregation, and said law is an “instrument of change.” Jackson will also be the only justice to have served as a public defender and one of only two justices on the current court to have served as a federal trial court judge, along with Justice Sotomayor.

Info Industry Cases in 2022–2023

Looking ahead, the court already has more than 20 cases on its docket for the 2022–2023 term, which begins on Oct. 3, with many more anticipated. Focusing on cases of direct interest to the information community, the court will be taking up Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a copyright fair use case involving a series of Andy Warhol silkscreens based on a photograph of Prince taken by celebrity photographer Lynn Goldsmith. The court will explore the complex “transformative” test in fair use, which allows a person to use a copyrighted work if they transform it into a new work with a different “meaning or message.”

The Supreme Court surprised many court watchers by declining to hear the patent eligibility case of American Axel & Manufacturing v. Neapco Holdings, LLC., which sought to clarify the test for determining an invention’s eligibility for patenting. However, other patent cases are currently pending for review, and it is expected that the court will accept at least one for a decision.

Generally speaking, intellectual property (IP) cases tend to be less ideological than most, and while there does not appear to be anything in Justice Jackson’s background suggesting a particular expertise or focus on IP matters, it’s fair to say that none of the other justices came to the court with a particular expertise on IP cases.

‘The Great Dissenter’

The last several weeks have brought forward a dissertation’s worth of commentary about the state of the Supreme Court, with terms like “conflict,” “discord,” “caustic,” “lash[ing] out,” “criticism,” and “lost control” becoming prominent. Will Justice Jackson be able to change things? The court will again be dealing with hot-button issues in her first term, including affirmative action, environmental regulation, free speech, and public corruption. While her confirmation did not change the liberal versus conservative status quo, her expressed hope to be a consensus builder holds promise. Although, as if knowing what may lie ahead for her, it was noted by various outlets that during her swearing in, Justice Jackson held two Bibles—a family Bible and a Bible given to the court in 1906 by Justice John Marshall Harlan. Harlan was known as “The Great Dissenter.”

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. Previously, Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Pike received his B.A. from the College of Idaho, his law degree from the University of Idaho, and his M.L.S. from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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