This is not an article about Judge Ketanji Brown Jackson. It is, rather, a look back at the Supreme Court she once knew—knew intimately, in fact, during the 1999–2000 Court term, when she was a law clerk to Justice Stephen Breyer, the justice whom President Joe Biden recently nominated her to replace.
From a certain perspective, nothing is unique about Judge Jackson’s status as a former Supreme Court law clerk. A majority of the justices are former clerks, Breyer among them. But no two Supreme Court terms are alike. Each is shaped by the particular cases on the docket, by the tensions evoked as the justices work against the clock to resolve their disputes, by compromises reached or disagreements left to fester. Did her year at the Court shape the judge she later became? Inevitably it must have, in ways only she knows. And of course, she had an insider’s view of the events of her term that no outside observer shares. So the point of revisiting the 1999–2000 term is not to speculate or extrapolate but simply to describe the Court that she saw and experienced firsthand. Though today’s Court differs in obvious ways—the only justice besides Breyer still on the bench is Clarence Thomas—the backward look suggests that much about the current Court will be familiar to the former law clerk.
Given the polarized Supreme Court we have now, it’s tempting to construct a halcyon past when justices agreed on basic principles, even if not always on how to apply them. That certainly was not the case two decades ago. The term was contentious, and unusually so. The Court issued only 73 decisions, the lowest number in nearly 50 years. Twenty cases, including many of the most important, were decided by votes of 5–4, the highest proportion in a decade, and middle ground regularly seemed to disappear.
The Court’s work that term touched nearly every disputed subject in American life. There was religion (student-led prayer at high-school football games violated the First Amendment’s establishment clause). There was abortion (a state’s ban on a particular method of abortion was an unconstitutional “undue burden”). The topic of LGBTQ rights reached the Court as a question about whether the Boy Scouts were bound by a state’s antidiscrimination law to accept gay men as adult Scout leaders. The Court’s answer was no.
Under Chief Justice William Rehnquist, the Court took a more limited view of the federal government’s powers than at any time since the 1930s. A 5–4 decision struck down the Violence Against Women Act on the grounds that by permitting victims of gender-motivated violence to file civil-damages suits in federal court, Congress had exceeded its power under the Constitution’s commerce clause. “The Constitution requires a distinction between what is truly national and what is truly local,” the chief justice wrote in the majority opinion. Another 5–4 decision invalidated the application to state employees of the federal law against age discrimination in employment; the Court ruled that Congress lacked the power to breach states’ sovereign immunity in this fashion.
On the subject of race, the Court ruled that a provision of Hawaii’s Constitution, which stated that certain elections were open only to native Hawaiians, violated the Fifteenth Amendment, under which the right to vote may not be denied on account of race. On campaign finance, the Court upheld Missouri’s strict contribution limits, rejecting the argument that the low limits violated the First Amendment.
If the list of subjects the Court addressed sounds familiar, the reason is that these issues are still with us. They reflect cleavages in American society that transcend any one Supreme Court term. The justices can resolve disputes, but the Court is powerless to achieve real settlement. As water will find its way downstream, issues will reemerge, sometimes in a new form or sometimes exactly the same.
Justice Breyer’s most important majority opinion during the 1999–2000 term is a telling example. It was in an abortion case, Stenberg v. Carhart. By a vote of 5–4, the court struck down a Nebraska law that made it a felony to perform a so-called partial-birth abortion, a potent term invented by abortion-rights opponents to describe a technique sometimes used to terminate a second-trimester pregnancy. The statute contained no health exception, despite expert testimony at trial stating that for some women, the technique was safer than other more common ways of performing a late-term abortion. The majority concluded that the law imposed an undue burden on the right to abortion. A number of other Republican-dominated states had enacted similar laws. All were rendered unenforceable.
Justice Breyer would have been justified in concluding that the decision had settled the question of whether the government could ban a method of abortion without including a health exception. He would have been wrong. The Stenberg decision was effectively wiped away seven years later when another 5–4 decision upheld a nearly identical federal version of the Nebraska law. All that had occurred in the intervening years to change the outcome was that Justice Sandra Day O’Connor, a member of Justice Breyer’s majority, had retired and Justice Samuel Alito had taken her place. Justice Anthony Kennedy, who had filed a perfervid dissenting opinion in the Stenberg case, wrote the majority opinion in the new case, Gonzales v. Carhart.
The passage of time reveals how vulnerable other 1999–2000 decisions were as well. The three justices who dissented in the Missouri campaign-finance case—Kennedy, Antonin Scalia, and Clarence Thomas—expressed deep discontent with the Court’s jurisprudence in this area. Ten years later came the Citizens United decision, which blew the earlier jurisprudence apart.
In Santa Fe Independent School District v. Doe, Justice Breyer joined the 6–3 majority holding that the practice of organized student prayer before high-school football games violated the First Amendment’s prohibition on the “establishment” of religion. The majority opinion by Justice John Paul Stevens relied heavily on a 1992 decision, Lee v. Weisman, that had invalidated clergy-led prayer at public high schools’ graduation ceremonies. But today, Lee v. Weisman itself is likely not long for this world. The current majority has that precedent in its sights in a case to be decided this term, Kennedy v. Bremerton School District, in which a high-school-football coach asserts a right to pray publicly on the 50-yard line after games in defiance of the school district’s order to stop. A ruling in the coach’s favor, which is widely expected, could also take down the Santa Fe precedent in the process. Welcome back to prayer in school.
Of the term’s 20 5–4 decisions, Justice Breyer was in the majority in only four. The dominance of the conservative bloc, consisting of Chief Justice Rehnquist and Justices Kennedy, Thomas, Scalia, and O’Connor, was already on display. Justice Breyer’s most important writing came in dissent—nine dissenting opinions compared with seven opinions for the majority. If confirmed, Judge Jackson will almost certainly find herself in the same situation, or worse.
One of Justice Breyer’s most important dissenting opinions during the 1999–2000 term came not in a constitutional case but in a case about the authority of the Food and Drug Administration, which was seeking to regulate cigarettes as “drug delivery devices.” The question in Food and Drug Administration v. Brown & Williamson Tobacco Corp. was whether Congress had given the FDA the authority it claimed. The majority’s answer was no, explaining that before its recent change of mind, the FDA had for years disclaimed regulatory authority over tobacco and that Congress had legislated on the basis of that assumption numerous times.
Where the majority extracted clarity from the legislative history, Justice Breyer found Congress to have been not clear but rather “critically ambivalent” on the question of the FDA’s authority. Given the ambiguity, he wrote, it was appropriate for the Court to take into account both the text of the Food, Drug, and Cosmetic Act (the statute that created the FDA) and its purpose, the protection of public health. Text and purpose taken together, he concluded, supported the agency’s position.
This old case has come back to life too. After years of obscurity, it has been rediscovered by conservative judges and lawyers who claim that it stands for something they call the “major questions doctrine.” A new weapon to wield in the nationwide guerrilla war now being fought against the “administrative state,” the doctrine claims that an agency cannot exert regulatory authority over something important without explicit authorization by Congress. Justice Neil Gorsuch is the doctrine’s chief proponent, and it may soon gain the endorsement of a majority of the Court. That in turn would upend the Court’s modern approach to administrative law, which under the 1984 Chevron decision provides that judges confronted with an ambiguous statute are to defer to an administrative agency’s view of its own authority.
Any Supreme Court term has surprises, and the 1999–2000 term was no exception. One major surprise was Apprendi v. New Jersey, a 5–4 decision that invalidated New Jersey’s hate-crime statute on the grounds that the Sixth Amendment right to trial by jury requires that juries rather than judges make the hate-crime finding that leads to an enhanced sentence.
The dire implications for the constitutionality of the federal sentencing guidelines, although largely unacknowledged by the majority, were obvious; under the guidelines, which Justice Breyer had worked on as a Senate staffer and to which he remained deeply committed, judges—not juries—made the key calculations that determined a sentence. His dissenting opinion spelled out the implications and argued that “at the very least, the impractical nature of the requirement that the majority now recognizes supports the proposition that the Constitution was not intended to embody it.” Impractical or not, only five years later, the Court had to confront Apprendi’s implications, ruling that the federal sentencing guidelines were only advisory and no longer binding.
The biggest surprise of all came in a decision concerning not a new question but an old one: the validity of the Court’s 1966 landmark case, Miranda v. Arizona, requiring that criminal suspects receive the famous “Miranda warnings” about their rights against compelled self-incrimination. At issue was a law that Congress had passed in defiance of the decision shortly after the Court’s ruling. The law, known as Section 3501, provided that information obtained during a custodial interrogation of a criminal suspect was admissible, warnings or not, as long as the suspect answered questions voluntarily.
Chief Justice Rehnquist had been a harsh critic of Miranda and had done his best to undermine it throughout his tenure. So it was with amazement that the courtroom audience heard him announce the decision in Dickerson v. United States, invalidating Congress’s action. Speaking from the bench, the chief justice intoned the familiar warnings and then declared that they had become “part of our national culture.” Because Miranda was a constitutional decision, his written opinion explained, Congress lacked the power to overturn it legislatively.
The chief justice spoke for seven justices. Justice Scalia, joined by Justice Thomas, dissented. In their view, the 34-year-old decision was simply wrong, “a milestone of overreaching.” The rule of stare decisis, adherence to precedent, could not save it, Justice Scalia wrote: “Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision—especially a celebrated decision—that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States.”
Reading Justice Scalia’s dissenting opinion today, it’s hard to avoid substituting Roe v. Wade for Miranda; we can’t read his words without awareness of the repudiation of precedent that is likely to take place by the time the current term ends this summer. How did Justice Scalia’s opinion strike the law clerk Ketanji Brown Jackson? Overwrought, perhaps? Quirky to the point of irrelevance?
She and her fellow law clerks had a certain luxury. Law clerks are aides, observers, even messengers between one justice’s chambers and another’s. But ultimately, the battles are not theirs to fight. Soon, the battles will be hers.