A Public Defender on the High Court

Emily Parkin

When Ketanji Brown Jack­son was apply­ing to college, her high school guid­ance coun­selor told her not to set her sights too high. Now an exper­i­enced judge, with stints as a public defender, a U.S. Senten­cing Commis­sioner, and a lawyer in private prac­tice, Jack­son is poised to make history as the first Black woman to ever serve on the Supreme Court, as well as the first former public defender. 

Jack­son’s nomin­a­tion is a mile­stone for bring­ing greater diversity of life exper­i­ence to the bench. Chief Justice John Roberts famously described the role of a judge as call­ing “balls and strikes.” Less remembered is Sen. Herb Kohl’s response that “no two umpires . . . have the same strike zone.” As Kohl explained, the exper­i­ences judges bring with them to the bench inev­it­ably shape how they under­stand the contours of the law and facts in front of them.  

That’s why having judges who have seen differ­ent aspects of the Amer­ican exper­i­ence is so import­ant. Federal district court Judge Carlton W. Reeves put it well: “Where people come from, what they have lived through, what they do with the time they have, and who they spent that time with — it all matters.”

One of the many ways that Jack­son would bring over­looked perspect­ives to the Supreme Court is through her exper­i­ence repres­ent­ing crim­inal defend­ants. The Supreme Court plays a major role in defin­ing the consti­tu­tional rights of defend­ants — from inter­ac­tions with the police, to the rights of the accused during trial, to the scope of permiss­ible punish­ments — as well as in inter­pret­ing federal crim­inal laws. Every year, the Court considers thou­sands of peti­tions in crim­inal cases. 

But while prosec­utors are well-repres­en­ted on the Supreme Court (on the current Court, Justices Samuel Alito, Sonia Soto­mayor, and Clar­ence Thomas all served as prosec­utors), the Supreme Court has never had a justice with exper­i­ence as a public defender. 

The last justice with substan­tial exper­i­ence navig­at­ing the crim­inal justice system on behalf of poor defend­ants was the civil rights icon Thur­good Marshall, who retired from the Court more than 30 years ago. It’s part of a broader pattern: across federal and state courts, judges with defender exper­i­ence are under­rep­res­en­ted in favor of those with prosec­utorial and corpor­ate back­grounds.

This is an exper­i­en­tial chasm. Justice Sandra Day O’Con­nor described how import­ant Marshall’s “ear of a coun­selor” was for the Court — someone “who under­stood the vulner­ab­il­it­ies of the accused and estab­lished safe­guards for their protec­tion.” It can be hard to see the unfair­ness baked into our crim­inal justice system from behind the bench. And not surpris­ingly, research suggests that judges with crim­inal defense exper­i­ence often approach crim­inal cases differ­ently.

Last year, after eight years as a federal trial court judge, Jack­son appeared before the Senate for a hear­ing to be confirmed to the DC Circuit Court of Appeals. She reflec­ted on the “direct line” between her public defender exper­i­ence and her approach as a judge, includ­ing how she took “extra care” to make sure the defend­ants appear­ing before her under­stood what was happen­ing, having seen firsthand how little her clients under­stood the legal system. “I think that’s really import­ant for our entire justice system.” It is.

One new voice is unlikely to trans­form an increas­ingly radical conser­vat­ive major­ity on the Supreme Court. But giving defend­ers a seat at the table — and a voice in dissent — still matters. It’s a step towards achiev­ing courts that deliver on the prom­ise of equal justice for all, and a land­mark worth celeb­rat­ing. 

https://www.brennancenter.org/our-work/analysis-opinion/public-defender-high-court

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