The United States will have a new justice on the Supreme Court, and it will be Judge Ketanji Brown Jackson.
Notwithstanding a grueling process marked by inflammatory accusations, innuendo, political grandstanding, unbecoming conduct, and sadly flat-out lies by some members of the Senate Judiciary Committee, Judge Jackson prevailed during her confirmation hearings and by a bipartisan vote of 53-47 will become the 116th justice on the court. This historic milestone opens another door heretofore closed to Black women, and barely cracked for women generally.
Since its founding in 1789, the court operated as an exclusive club, securing a male monopoly by upholding laws that barred even white women from becoming attorneys and delivering opinions that furthered the dehumanizing and unequal treatment of Black people. In the 1873 case Bradwell v. Illinois, the high court upheld legislation in Illinois barring women from practicing law. Justice Joseph Bradley wrote that it was “repugnant” for a woman to adopt “a distinct and independent” civic life from her husband, because under the law women lacked fundamental capacities.
The ripple effects of decisions such as Bradwell shaped future legislation at the state level, producing undeniable currents that closed doors for women in law. The subsequent ruling by the Wisconsin State Supreme Court in 1875 further illustrates the strategy used by elite, white men on the bench to deny women the opportunity to become lawyers, let alone judges. According to the Wisconsin Supreme Court, “We cannot but think the common law wise in excluding women from the profession of the law…. The law of nature destines and qualifies the female sex for the bearing and nurture of the children.” The court concluded its sophistry with: “The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.”
Ironically, the notion of promoting women’s safety, virtue, and protection was the legal lark that normalized misogyny and discrimination.
America’s endemic racism is reflected in the Supreme Court’s decisions in cases like Dred Scott v. Sandford (1857), where Chief Justice Roger Taney claimed that Black people like Mr. Scott, his wife, and two daughters were so “far inferior, that they had no rights which the white man was bound to respect.” Justice Taney further wrote that people like them “might justly and lawfully be reduced to slavery for [their] benefit.” Even after slavery’s abolition, the Supreme Court upheld racially discriminatory laws in cases like Plessy v. Ferguson (1896) and the Civil Rights Cases (1883), which solemnized “separate but equal” policies and the denial of civil rights.
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Given this history of sexism and racism baked into law and the Supreme Court’s complicity in upholding unjust laws and barring women from the practice of law, Judge Jackson’s path to the Supreme Court is all the more remarkable. She becomes the first Black woman to serve on the high court, which prior to now has had only five women in its 233-year history. Three of the five currently serve. Equally, in more than two centuries, there have only been two Black justices nominated and confirmed to the court.
In fact, the first 95 justices to serve on the court were all white men.
Thus, undeniably, Judge Jackson’s confirmation reflects progress and building toward a better and more credible court. For example, she will be the first justice to have served as a federal public defender, a job crucial to the healthy functioning of our criminal justice system. And one that is even more critically important considering that the United States incarcerates more men, women, and juveniles than any other nation in the world. Also important, Judge Jackson hails from the American South—a region of the nation that has been lacking in representation on the court for decades. Moreover, unlike many of the justices on the Supreme Court, Judge Jackson attended public schools—an experience that many Americans find valuable and important.
That said, Judge Jackson, the first Black woman nominated to serve on the Supreme Court, had to fend off doubts about and even attacks on her credentials, capacities, and character. Simply put, she had to jump through hoops to prove she was more than qualified for the role—something too familiar for many Black women. For the many of us who hoped for the type of rigorous, but respectful, confirmation hearings that Justice Ruth Bader Ginsburg experienced, which showcased the late justice’s intellect, illuminated her thinking as a judge, and highlighted how practice and personal experiences influence her approach to various cases, the Senate Judiciary Committee failed us.
Neither Democrats nor Republicans intervened when their colleagues’ conduct failed to meet the standards expected in that august body, with the exceptions of Senator Cory Booker of New Jersey, the only Black senator to have ever sat on the committee during the hearing of a Black nominee to the court, and Senator Alex Padilla of California, who intimately compared his family’s journey as immigrants from Mexico to the hardship Judge Jackson’s family endured. He noted, “People of color, particularly for those that have the audacity to try to be the first, often have to work twice as hard to get half the respect.”
Shamefully, the spectacle of the confirmation hearings played out for her parents, two daughters, and the world to see. Further normalizing the abuse, there was no use of the gavel to place in check the scurrilous attacks on Judge Jackson.
The confirmation hearings also revealed troubling, underlying fissures in American democracy and exposed alarming assaults on the rule of law about which all Americans should be worried. There were the attacks on the First Amendment and seeming support for censorship. Substantive due process was portrayed as an evil of the Constitution and judicial interpretation, when in fact it has been key to dismantling racial injustices and promoting sex equality, safeguarding LGBTQ communities, and advancing disability rights. The pursuit of criminal justice and the fundamental principle of innocence until the establishment of guilt withered under a barrage of spittle-filled vitriol.
In spite of the demeaning behavior on display, the lingering appetite for misogyny and spectacle, and the unbecoming conduct on the part of some senators at the time of casting votes, there are lessons to be learned from Judge Jackson’s wit, grit, and grace. Under intense scrutiny, she offered a master class in temperament, discernment, and patience. She modeled for the nation how to be a judge.
