Biden Nominates Ketanji Brown Jackson to Be First Black Woman on Supreme Court

Author: David B. Weisenfeld

February 25, 2022

President Biden has nominated Judge Ketanji Brown Jackson, of the District of Columbia Circuit Court of Appeals, to be the first Black woman to serve on the Supreme Court.

Last year, the Senate confirmed Judge Jackson to serve on the DC Circuit Court of Appeals by a 53-44 vote. Jackson previously served as a federal district court judge for eight years, and formerly clerked for Justice Stephen Breyer, whom she would be replacing.

As a practical matter for employers, Jackson's nomination is unlikely to significantly change the dynamic in workplace-related cases. Justice Breyer authored a host of opinions expanding employee protections during his 28 years on the Supreme Court, as well as some notable dissents in employment cases. His writings included authoring:

  • An opinion that verbal complaints fall within the scope of the Fair Labor Standards Act's anti-retaliation provision in Kasten v. Saint Gobain;
  • An opinion significantly expanding the scope of retaliation under Title VII of the Civil Rights Act in Burlington Northern v. White; and
  • A dissent in the recent challenge to President Biden's COVID-19 vaccine-or-test mandate for large employers.

Judge Jackson's record has drawn praise from labor groups, and the expectation is she will rule similarly to Justice Breyer. Her first opinion as a DC Circuit judge rejected an effort by the Federal Labor Relations Authority to toughen bargaining requirements for public-sector workers in AFL-CIO v. FLRA. The ruling forced the agency to reconsider a rule that would have allowed it to avoid bargaining over what it deemed to be small changes to conditions of employment.

As a district judge, Judge Jackson blocked executive orders issued by President Trump that she deemed severely harmful to federal workers' collective bargaining rights, though her ruling was reversed on appeal.

If the Senate confirms Judge Jackson latest nomination, it would mean four of the nine justices on the Supreme Court would be women (and two of the nine would be Black) for the first time in the nation's history. Justice Breyer will remain on the Court through the end of its term in June.