David Remnick: Since the founding of this country, just 116 people have served as Supreme Court justices. The 116th is Justice Ketanji Brown Jackson, who was appointed by President Biden in 2022. Jackson's two years have been marked by major decisions that define a new conservative era for the Court. She took her seat just days after the Dobbs decision, which overturned Roe vs Wade. Jackson wrote a blistering dissent to the end of affirmative action, the so-called Harvard decision. She dissented as well on presidential immunity, which is surely going to be one of the most consequential cases of our time. She didn't pull her punches there. Jackson wrote that the majority opinion took risks with presidential power that are, and I'm quoting here, "intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms." Ketanji Brown Jackson has just published a memoir about her family, her early life, and how she got to the highest position in American law. The book is called Lovely One.

Tell me a little bit about receiving the news of your becoming a Supreme Court Justice. Paint a picture for us, if you will, about how that news was received and what was said and how it was celebrated.

Justice Ketanji Brown Jackson: Oh, well, goodness. Wow. It was incredible. One of the things your listeners should know is that there's a pretty long lead-up to getting appointed to be on the Supreme Court, or any other court, because you have to be vetted by the White House. You have to go through a long period of answering questions and filling out paperwork. I knew I was possibly in the running.

I actually talk in the book about sitting down with my family, my teenage daughters at the time, and really wanting to make sure that this would be a comfortable transition for them if I were to get the nomination because one of my daughters is neurodivergent, and I was concerned that the spotlight would not be something that she would want to have. We talked it through and everyone was supportive.

When I got the nomination, I was surprised because the president had announced that he was going to nominate or choose and publicly announce the person who was going to get the appointment by the end of the month. This was a few days before the end of the month, and I thought, "Surely I didn't get it because he waited until the last minute. Someone else is out celebrating. I'm not going to get it." When he called me, which is actually recorded, I was totally, totally floored.

Justice Ketanji Brown Jackson: Hello.

President Joe Biden: Judge Jackson?

Justice Ketanji Brown Jackson: Yes.

President Joe Biden: This is Joe Biden. How are you?

Justice Ketanji Brown Jackson: I am wonderful. How are you, Mr. President?

President Joe Biden: Well, you're going to be more wonderful. I'd like you to go to the Supreme Court. How about that?

Justice Ketanji Brown Jackson: Sir, I would be so honored.

President Joe Biden: Well, I'm honored to nominate you.

Justice Ketanji Brown Jackson: My family, of course, was overjoyed. Many of my family members, my husband especially, said that they just knew. They knew that this was my destiny and had known for a long time.

David Remnick: Really? Did you?

Justice Ketanji Brown Jackson: I don't think I knew. I certainly wanted it. Even when I was in high school, I apparently wrote in my yearbook that I wanted to be the first Black female Supreme Court justice to appear on a Broadway stage because I love theater too. I always had a dream of doing this work, but my brother, my husband and others had said that they'd seen this coming for a long.

David Remnick: Now, when President Biden appointed you, and you looked at all the eight other Justices, were you concerned that because of your philosophy of the law and your own views of the law, that you would be in a minority for a very long time to come?

Justice Ketanji Brown Jackson: I don't know that I was concerned. I did appreciate that having been mentored by Justice Breyer, who was my justice for whom I clerked years ago, I had a sense that he saw the law in a way that put him in a minority and that I, too, might be in that position as well, but I don't think it was a concern for me.

David Remnick: One of the first dissents of yours that I read in full, it was so impressive but alarming, was on the immunity decision, something you described as a five-alarm fire. Why?

Justice Ketanji Brown Jackson: Well, that opinion really, for me, highlighted a difference of opinion about the way in which the Constitution frames the separation of powers and the extent to which the executive branch leader should be treated differently than others in our system when it comes to alleged criminal activity. I had a pretty strong feeling and view about how criminal justice works.

I had been a public defender in my time as a lawyer and had served on the Sentencing Commission and really tried to lay out, in my opinion, the ways in which I thought the criminal justice system could accommodate allegations of wrongdoing by the executive without forming an immunity which takes the executive or the person who holds an immunity outside of the ordinary process.

In my opinion, I talked about the fact that it appears that the background norm was that the Justice Department had determined that it was possible for a president to be prosecuted, and perhaps that was doing some work in terms of preventing the kinds of abuses that one could imagine by an executive branch officer. The concern I think that I was trying to point to was, if an immunity was announced, would that incentivize an office holder to push the envelope with respect to the exercise of their authority?

David Remnick: You do think it's an incentive-- potential incentive?

Justice Ketanji Brown Jackson: I thought one could imagine that being the case, and it was certainly a concern and one that I did not perceive the Constitution to permit.

David Remnick: It would be valuable to get your thoughts on ethical issues around the court. Hugo Black was a former member of the Klan. William Douglas had, let's say, a complicated private life. Abe Fortas, ethics kept him from becoming Chief Justice. In recent years, ethics questions have been about receiving things, undisclosed gifts, and travel, and property deals. How much damage did those practices do to the Court's reputation? Do you agree that the Court's statement about ethics and its ethics code was too weak?

Justice Ketanji Brown Jackson: I would say that the Court has recently adopted an ethics code that is largely modeled on the lower court's ethics code, which is something that certainly has been around for a long time.

David Remnick: I guess what I'm asking is, does it have an enforcement mechanism? The New York Times called this development toothless. The Brennan Center for Justice, which is at NYU Law School, of course, wrote that it was too weak because, and I'm quoting here, "The Justices have proven themselves troublingly adept at sidestepping the current rules, whether for RVs, tuition, fishing trips, or real estate deals." In other words, who is in charge of enforcing this, and can it be enforced if it's just on the good intentions of the Justices?

Justice Ketanji Brown Jackson: There isn't an enforcement mechanism in the code as it currently exists. Different Justices have different views about the enforceability of the code. As a lower court judge, I was subject to an ethics code that was enforceable. My view is that I haven't seen a good reason why the ethics code that the Supreme Court adopted shouldn't be enforceable. Lower court judges have to abide by an enforceable ethics code. Other Justices have posited certain ways in which it could be made enforceable, but we have not yet determined or decided to do that.

David Remnick: The profession, or in my case, the trade that I'm in, public confidence is not exactly soaring for journalists. I readily admit that, but a long list of public surveys have confirmed a decline of public trust in the Supreme Court as well. Last month, the latest poll by the National Opinion Research Center at the University of Chicago found that 7 in 10 Americans believe the Justices are "putting ideology or personal politics above impartiality." If you take a step back, how do you explain this state of affair? How much does it concern you?

Justice Ketanji Brown Jackson: I think it's a very big concern. I think that my mentor, Justice Breyer, used to say all the time, and still does, that public trust is really all we have in the judiciary, that we don't have the power of the purse, we don't have the military or any force. The rule of law really is upheld because of the public's belief in the Court and its rulings. When there's a waning in that kind of trust, it certainly is a cause for concern. I think it's something that the Court really needs to take seriously.

I do want to be clear. I think that there is a distinction between public trust waning as a result of the outcome of any particular decision because the Court has to operate. It has a duty to interpret the Constitution and the law, and there are times when the Court will issue rulings that may not be popular. We're a counter-majoritarian at times because the Constitution is prescribing limits on government authority and upholding individual rights in ways that may not be popular. That's different, I think, than public trust waning because of concerns about partiality. I do think that these are very important issues.

David Remnick: You think the decline in public trust is not because of any one issue or decision like Roe being overturned? Do you think it's because of the behavior of the Justices in some way or the political climate out there? In other words, what do you think is responsible for the Court's decline in public confidence?

Justice Ketanji Brown Jackson: I don't know. I don't know what is responsible for the decline. I was just pointing out that I think [crosstalk] different--

David Remnick: Do you all get together and discuss it?

Justice Ketanji Brown Jackson: I'm not at liberty to talk about what we discuss, but I don't know. I'm not a journalist. I haven't surveyed the public. I'm just pointing out that there could be different reasons, and those might have different solutions, for example, or there might not be anything you can do about one or the other depending upon what the nature of the problem is.

[music]

David Remnick: That's Justice Ketanji Brown Jackson of the Supreme Court. We'll continue in a moment. This is The New Yorker Radio Hour.

[music]

David Remnick: This is The New Yorker Radio Hour, and I'm speaking today with Justice Ketanji Brown Jackson. We spoke about the code of ethics at the Supreme Court and a troubling decline in the public's trust of the Court. If people perceive the Court as politicized, Jackson stressed that the Justices still try very hard to get along. We'll continue our conversation now.

I want to ask a question about the culture of the Court. Stephen Breyer, for whom you clerked, published an essay in The New York Times earlier this year highlighting the personal bonds between members of the Supreme Court. He wrote, "In my 28 years on the court, I never heard a voice raised in anger in the private discussions with fellow Justices. There was bridge-playing. Famously, Ruth Bader Ginsburg went to the opera with Justice Scalia. There have been very longstanding relationships in the Court."

Some people read that and thought it was beside the point. The Times published an essay later by Linda Greenhouse entitled Who Cares If The Supreme Court Justices Get Along? What do you want people to know about the culture of the Court? What's it really like?

Justice Ketanji Brown Jackson: I certainly care if the Supreme Court Justices get along. We have lifetime appointments, so it's nice to get along with the people you work with. I think the culture is very collegial. We have a job to do, and we are a very, very small group of people who are entrusted with this responsibility. We take our jobs seriously. We do try to do social things together every now and again. We certainly have the opportunity to--

David Remnick: Throw me a bone. Give me an example of that.

Justice Ketanji Brown Jackson: Okay. All right, let me give you an example. When a new justice comes on, as I did, the justice who precedes them has to throw a party for them at the Court. That justice does some research and tries to figure out something interesting about the new justice, and then they make the party themed around that. Justice Barrett found out that I loved theater, and she threw a Hamilton-themed party where she invited a former Broadway actress to come and sing numbers from the show. She made a big sign that said the room where it happens. That's now up in my chambers. It was really lovely. Every justice has the same story about different things that-

David Remnick: Everybody came.

Justice Ketanji Brown Jackson: -their predecessor did. Everybody came, and their spouses, to welcome the new Justice.

David Remnick: Do you have any relationships on the Court like Ruth Bader Ginsburg did, going to the opera with Justice Scalia?

Justice Ketanji Brown Jackson: Justice Barrett and I are probably the most similar in terms of our families. We talk about our kids, and we compare notes about that. Justice Sotomayor has been a really wonderful mentor to me, helping me learn. Justice Ginsburg and Justice Scalia had served together on the lower courts, so they had known each other for many, many years before they came to the Supreme Court. I think that also helped to facilitate their relationship.

David Remnick: Sometimes the language in opinions and dissents are not soft. They can be pretty pointed. In your dissenting opinion of the affirmative action case, for example, you said that the majority showed a "let them eat cake obliviousness," which is pretty damning and says what it says. When you publish a dissent like that, it's very critical of someone else's view. How does lunch conversation go the next day? How do relations hold up?

Justice Ketanji Brown Jackson: [laughs] The Court, I think, is pretty good at compartmentalizing. One of the rules of lunch conversation is that you don't get to talk about the substance of any cases.

David Remnick: Whoa, wait, you can't talk about business at lunch? It's all polite?

Justice Ketanji Brown Jackson: No. It's all polite. It's all movies and sports and kids' performances and that kind of thing. [laughs]

David Remnick: Really?

Justice Ketanji Brown Jackson: Really.

David Remnick: People stick to that?

Justice Ketanji Brown Jackson: Yes, they do. It is a good--

David Remnick: It's both shocking and disappointing at the same time.

Justice Ketanji Brown Jackson: Really. Why?

David Remnick: Yes. Because I would think you'd have at it. I would think that lawyers and judges would live for this, for sharp argument and discussion.

Justice Ketanji Brown Jackson: Oh, well, you do have sharp argument and discussion at the appointed time, which is in the conference. I think it's actually fantastic that we demonstrate the ability to set aside our sharp arguments and disagreements, which we've had, and still come together and break bread together and get along outside of the office. I think that's really important.

David Remnick: During the 2020 election, while Donald Trump was still president, he wrote this. I'll spare you the capital letters. "A massive fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution." Is there really any situation in which part of the Constitution can be terminated?

Justice Ketanji Brown Jackson: No.

David Remnick: You want to say more?

[laughter]

Justice Ketanji Brown Jackson: I think it's really important to go back to basics, as I've tried to do since my time in office and certainly since I've been on the Supreme Court. The judges and justices of the Supreme Court take an oath called the Constitutional oath, and it requires that we support and defend the Constitution of the United States against all enemies, foreign and domestic. Our number one responsibility is to defend the Constitution. Therefore, as a general matter, I cannot think of a situation in which the provisions of the Constitution can lawfully be set aside.

David Remnick: This question may have seemed either wild or naive some years ago but maybe not so much now. What happens if a decision of the Court against a president is simply Ignored? I'm not sure I'm crazy to ask such a thing. Does the court have any mode of redress?

Justice Ketanji Brown Jackson: This relates back a little bit to the question that you asked about public opinion and the extent to which the Court has any means of enforcing its own opinions, its own rulings. The answer, as far as I know, is there is no recourse other than public response, the understanding that we would be in a situation in which there would be authorities that are not following the Court's rulings. This happened with fair frequency in the 1960s after the Court started handing down rulings that were enforcing provisions of law requiring desegregation. For example, in many places in the South, there was--

David Remnick: Little Rock and elsewhere. Sure.

Justice Ketanji Brown Jackson: Exactly. There were Court opinions that were handed down enforcing desegregation orders or handing down desegregation rulings, and there was no mechanism to enforce them other than the federal government, the president sending in troops. You mentioned Little Rock. Those kinds of things actually required the enforcement of the executive branch in order to have them happen.

David Remnick: In 2015, Barack Obama nominated Merrick Garland to the Court. Mitch McConnell refused to hold hearings. He stalled until Donald Trump was elected and nominated his own pick for the seat. What could a president legally-- just as a question, not of politics but of legality, what could a president do in that situation because inevitably it might happen again?

Justice Ketanji Brown Jackson: Oh, my goodness. I honestly don't know. I don't know that I could say even if I did know. [laughs] Yes, the president has the prerogative of nominating people, but the Senate is supposed to confirm them. Under the rules as they currently exist, senators exercise that prerogative or not.

David Remnick: I wrote a book about Barack Obama called The Bridge and spent a lot of time thinking about and reporting about his time at Harvard Law School. It was really an interesting chapter in his life. I wonder, what was, for you, most formative at Harvard Law School, either politically or in terms of your legal thinking?

Justice Ketanji Brown Jackson: In the book, I talk about my two years on the Law Review, which I think was the most formative. I was not a law student who was very assertive in class.

David Remnick: You were quiet?

Justice Ketanji Brown Jackson: I retreated-- I was pretty quiet, actually, which may seem a little strange now given my personality, but at the time I went to law school, I was excited to be there. I had known I wanted to be a lawyer ever since I was very young, when my father went back to law school when I was in elementary school. I was just very happy to be on site. It's a little intimidating, I think, to go to Harvard Law School and have all these folks who are coming in guns blazing in all of your classes. I was fortunate enough to get onto the Law Review, and I found that to be just an extraordinary time. It was a small community within a larger law school, and I just loved it.

David Remnick: Justice Jackson, thank you so much. I really appreciate your time.

Justice Ketanji Brown Jackson: Thank you so much.

[music]

David Remnick: Supreme Court Justice Ketanji Brown Jackson. Her new book is called Lovely One: A Memoir.

Copyright © 2024 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.