2 years ago
Simply by taking the bench, Justice Ketanji Brown Jackson made history Monday, but as the Supreme Court kicked off its new term she also sent a message that she has no intent of being a shrinking violet despite her newcomer status.
Jackson waited less than eight minutes before jumping into the fray as her colleagues grappled with a dispute about the scope of federal agencies’ authority to regulate land use as a means of preventing water pollution.
In fact, the court’s newest justice politely dominated the questioning at the outset of Monday’s session.
“Why is it that your conception of this does not relate in any way to Congress's primary objective?” Jackson asked Damien Schiff, a lawyer defending landowners seeking a narrow interpretation of federal power. “Do you dispute that the primary objective as stated in the statute … is that Congress cared about making sure that the chemical, physical, and biological integrity of the nation's waters was protected?”
Jackson remained an active questioner throughout the argument, scoring assists from several colleagues, including Justices Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett, who pressed Schiff to respond to her queries.
Indeed, Jackson was so vocal that her questioning helped extend the planned one hour of arguments to two hours. Jackson seemed to realize she was testing Chief Justice John Roberts’ patience. After Roberts called on her well into the argument, she looked a bit sheepish and prefaced one of her questions with, “Sorry. …” Then she asked two follow-ups.
Later, during what was supposed to be a two-minute rebuttal argument, Jackson interrupted Schiff to ask another question — followed by at least three follow-ups. As the lawyer responded, Roberts could be seen writing a note, folding it and handing it to a page, who delivered it to Jackson. She opened and read the message. What it said is unclear, but the arguments in that case concluded moments later.
Despite the public tensions in recent months among some members of the court, as well as the stresses brought on by security scares and a leak investigation, the justices seemed fairly relaxed. The seating for most of the justices was reshuffled as a result of Justice Stephen Breyer’s retirement.
Justice Neil Gorsuch smiled broadly as the session got underway and casually chatted with one of his new neighbors, Sotomayor. He also deferred to Jackson once, who replied with some praise, sort of.
“I just wanted to follow up on Justice Gorsuch's very fair points, which were my points,” she said.
Kavanaugh also tried at least once to get Roberts’ attention for a question from Jackson, who sits to Kavanaugh’s left.
Kavanaugh and Justice Elena Kagan shared a private joke at one juncture, although her reaction was harder to assess since she joined Sotomayor as the only justices to wear face masks during the arguments.
There were fewer signs of chumminess between two other new neighbors, Kagan and Justice Samuel Alito. Alito looked pained at times during Monday’s arguments, and sometimes rested his forehead on his index fingers or his chin on his thumbs.
In a series of public appearances in recent weeks, Kagan has repeatedly raised doubts about the court’s methodology and said the court’s reputation is being undermined by perceptions that it isn’t being driven by legal principles.
Both Alito and Roberts have pushed back against such critiques, arguing that disappointment or disagreement with any decision shouldn’t affect the legitimacy of the court.
The overall tenor of Monday’s arguments was less confrontational and caustic than some of last year’s arguments, including in the pivotal abortion case where Sotomayor charged that the court might not “survive the stench” of overturning Roe v. Wade, which it did in June by a 5-4 vote.
The first arguments of the new term had a folksy tone at times, often feeling like Old Home Week as at least three justices invoked their roots while trying to make points or pose questions in the water regulation case, which turns on when certain wetland properties near rivers or lakes are subject to federal regulation.
“I grew up in an apartment building in New York City,” Kagan shared as she explained that she’d consider two buildings across the street from one another to be “adjacent” even if they didn’t touch.
“I grew up in low country Georgia and you had standing water. That was normal,” Justice Clarence Thomas declared as he pressed Deputy Solicitor General Brian Fletcher to explain whether frequently flooded land was or was not covered by the Clean Water Act.
Barrett, who now lives in Northern Virginia and came by way of Indiana, also got in on the action.
“I grew up in New Orleans,” said Barrett. “The whole thing is below sea level. So, you know, there are aquifers that run right underneath it. … We have no basements because, you dig far enough in anybody's yard, you hit water, and all of that runs into Lake Pontchartrain and the Mississippi River navigable waters.”
Although she may have been tempted, Jackson offered no similar anecdote about being raised in Miami, which only is about six feet above sea level on average and regularly gets flooded by storms.
However, some of Jackson’s questions both in the water case and a subsequent one about money order-like products seemed to pay homage to her predecessor and mentor on the court, Breyer, who often sought to interpret federal laws based on congressional intent or purpose.
Roberts may not be the only one who was eager to see the arguments wrap up Monday. Thomas, who at 74 is now the court’s oldest member, briefly stepped behind the curtain at one point as the session stretched on. And Gorsuch barely made it off the bench before he yanked off his black judge’s robe and handed it to an aide.
The justices are scheduled to return to the courtroom Tuesday for arguments on voting rights cases from Alabama, before holding a closed-door conference Friday to discuss this week’s cases as well as other matters.
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