Perspectives: High court rookie’s rulings: rarity and reality

“Jackson is popular with liberal legal activists … [as] a Justice willing to engage in ideological combat with the court’s conservatives!”

Politico (Feb. 25, 2022)

If they had a Rookie of the Year for the Supreme Court, as they do in baseball, Justice Ketanji Brown Jackson would win it hands down. That would be an easy determination, though, since she is the only first-year member on that tribunal.

But even if there were more, she would still be a prime candidate for the honorific due to her performance in her first year on the high court during its recently concluded 2022-23 term. Court watchers, the growing number of Supreme Court podcasters, pundits and the like, praised her highly, and not only from liberal quarters, for her work on the bench during that span.

The midway point of the court’s summer recess — with the justices off on pursuits ranging from academic engagements to luxury trips paid by wealthy right-wing donors — provides an opportune occasion to examine some of the rookie’s rulings in the past year.

A quartet of them stand out, including one with a distinct Minnesota foundation, and warrant reflection on the dexterity, depth and diversity of her initial year of performance.

First forays

Justice Jackson’s first couple of forays into opinion writing consisted of her initial majority opinion, which came a couple of months after her initial dissent, a rare written objection to the declination of certiorari.

The latter was a capital punishment case from Ohio, Chin v. Shoop, No. 22-5058, cert. denied (Dec. 7, 2022), in which a convicted murderer raised an issue of whether the state improperly suppressed evidence that could have significantly impeached a key witness in violation of the prosecutorial disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963).

While the court declined to review the matter on grounds that the suppressed evidence of the intellectual disability of that witness was “not material,” and would not have “changed” the outcome, Justice Jackson, joined by Justice Sonia Sotomayor, objected, opining that the case should have been remanded to the lower court in order for the trial judge to “appropriately apply the proper standard.” She felt that another review of the case was necessary because “an inmate’s life is on the line,” a plea that fell on deaf ears of the seven other members of the tribunal.

Incidentally, the court during the past term did hear — and remand — another capital punishment case, a rarity for the tribunal. In Reed v. Goretz, 143 S.Ct. 955 (April 9, 2023), a condemned man who had been on death row in Texas for 27 years for rape and murder, sought DNA testimony that he claimed would exonerate him. The lower courts ruled that he waited too long to raise the matter under the two-year post-verdict limitations period for federal habeas corpus proceedings, but the high court, in a 6-3 opinion, reversed. It reasoned that the condemned inmate did not receive a “fundamentally fair process,” resulting in sending the case back for reconsideration of the introduction of DNA testimony.

Justice Jackson joined that majority, but the three arch conservatives did not, led by Justice Clarence Thomas, who argued that the court lacked jurisdiction over the Texas state court proceeding, joined by Justices Samuel Alito and Neal Gorsuch, who believed that the two-year habeas period is “not unfair.”

But in her maiden majority opinion, Justice Jackson dealt with a wholly different issue, a complex civil matter involving a $400 million dispute in yet another rarity: a case arising under the court’s Article III original jurisdiction in litigation between states.

In Delaware v. Pennsylvania, 598 U.S. 115 (Feb. 28, 2023), the issue concerned the proper disposition of some $400 million in unclaimed funds that had never been transacted from a money transfer company, MoneyGram, which sold two types of prepaid instruments at banks and credit unions from its headquarters in Delaware. The state of Delaware claimed the orphaned funds as abandoned property under state law, but six states sued under the Federal Disposition Act, 12 U.S. § 2501, et seq., which provides that unclaimed funds belong to the states where the transaction occurred.

Justice Jackson, in her opening majority opinion, wrote for a unanimous court that because the unclaimed funds are “like a money order,” they belong to the last known addresses of the creditors or purchasers in the states where they live, rather than Delaware, where the funding entity, MoneyGram, is incorporated.

Therefore, Justice Jackson sent the case back to a special master for equitable distribution to the claimant states, which do not include Minnesota.

Mall mauling

 But this state played a central role in another one of Justice Jackson’s unanimous majority opinions.

Incidentally, it was one of some 25 unanimous rulings of the tribunal during the term, about 43% of its 58 written decisions, which was down by nearly 25% from its recent average of 75 per term.

The Mall of America (MOA), which is about to commemorate its 31st year of existence on Saturday, Aug. 12, was the source of this other unanimous decision authored by rookie Justice Jackson.

MOA has seen its share of litigation. See Perspectives, “The Mall at 30: murder and more matters” in the Aug. 22, 2022, edition of Minnesota Lawyer. But it appeared before the Supreme Court for the first time in MOAC Mall Holding v. Transform Holdco, LLC, 143 S.Ct. 927 (April 19, 2023), and it prevailed. The case revolved around complex litigation arising out of the bankruptcy of Sears Roebuck, one of the mall’s original anchor tenants, and the closure of its stores around the country following its demise. To induce it to lay down its anchor in 1992 and help drive patrons to the place, the MOA gave it a “sweetheart” lease of $1 per year for a hundred-year term, essentially free rent.

After the bankruptcy, Sears assigned to other investors its assets, which consisted primarily of its “sweetheart” deal at the mall. In the bankruptcy court, the MOA challenged that arrangement, but a bankruptcy judge held that the assigned lease survives bankruptcy and can be maintained by the new assignee, reasoning that it lacked jurisdiction to hear the mall’s objection to the transfer to the new owner.

Supported by eight of her colleagues, Justice Jackson reversed and sent the case back to the bankruptcy court. She opined that the bankruptcy court, contrary to its ruling, does have jurisdiction to hear the MOA’s objection and “relief is available” in that tribunal to set aside or otherwise tinker with the “sweetheart” arrangement.

Affirmative action

But Justice Jackson’s shining moment in the eyes of many observers came in her dissent in the high court’s major decision invalidating affirmative action admissions programs at Harvard University and University of North Carolina in Students for Fair Admissions, Inc., v. Harvard, 143 S.Ct. 2141 (June 29, 2023).

In that marquee case of the past term, the court struck down the racial preference arrangements after four lower courts, a pair of state and federal trial courts and two federal and state appellate courts upheld them. Turning aside some 40 years of precedents allowing various forms of race conscious college admissions programs, the court, by a 6-3 margin, held that affirmative action and racial preference admissions programs are unconstitutional under the Equal Protection clause of the 14th amendment and barred making admissions decisions “based on color,” although holding open the prospect that schools may consider applicants “discussing” how their race has impacted their lives, a real conundrum since the decision also holds that courts must be “color blind” and may not consider race, even though it suggests that students may mention their race in their application essays, presumably as long as admissions decision-makers don’t look at that portion of the essays to maintain racial-neutral parity.

As one of the three dissenters, Justice Jackson laid into the court in a remarkable opinion that reviewed the troublesome history of race relations in this country in contrast to the benign view of Chief Justice John Roberts, the author of the majority opinion, and the indifference to it posed by the concurrence of Justice Clarence Thomas. Justice Jackson went on in her dissent to lament that the majority decision “raises echoes from the past that … (still) exist today.” This was reference to a morass of historical degradation and maltreatment of Black people economically, socially, legally and otherwise, she admonished the court for disregarding “real life circumstances” and real life problems.

In assaulting what she regarded as a retreat from reality, she most memorably chided the chief’s majority decision because “claiming race is irrelevant in law does not make it so in life.”

Her historical analysis cited numerous “example[s] of race-linked obstacles that the law (and private parties) laid down to hinder the progress and prosperity of Black people,” which she felt warranted the preferential admission programs in place at Harvard, University of North Carolina and many other academic institutions, including those at the flagship Twin Cities campus of the University Minnesota, which responded to the ruling by ceasing its racially imbued preferences, along with its racially disparate legacy admissions policy.

The next shoe that might drop concerns the application of the ruling to other race-based situations such as diversity, equity and inclusion (DEI) programs in workplaces, dealing with hiring, training, promotion, and the like with some race preference. It also could extend the ruling to restricting or nullifying gender-based preferences in certain circumstances, as well.

While bemoaning the ruling and its potential scope, Justice Jackson will certainly not be on the sidelines as these events may unfold.

Turning 53 on Sept. 14, Justice Jackson will likely, in good health, stay on the court for a long time. Depending upon developments at the political level, she may find herself at some point elevated out of the minority into a majority position on the tribunal and, therefore, wield even more influence in her work.

She certainly will be a focal point of the court’s upcoming 2023-24 term. To borrow the term used in baseball, hopefully she will not suffer from the sophomore jinx after her stellar rookie season.

Marshall H. Tanick is an attorney with the Twin Cities Law firm of Meyer Njus Tanick.

PERSPECTIVE POINTERS

Minnesota Twins Baseball Rookies of the Year

• Chuck Knoblauch (1991)
• John Castino (1982)
• Rod Carew (1967)
• Tony Oliva (1964)