When President Joe Biden recently announced his nomination of Judge Kentaji Brown Jackson to the U.S. Supreme Court, he made history: Jackson, who currently serves on the D.C. Circuit Court of Appeals, would be the first Black, female Justice in the Supreme Court’s history. If confirmed, Jackson will replace the recently-retired Justice Stephen Breyer, whose record is that of a moderate liberal. It remains to be seen whether Jackson will fundamentally shift the Court’s ideological balance or, alternatively, end up a one-for-one replacement for Breyer. Looking back at Jackson’s prior decisions, it appears the latter is more likelye, at least with respect to employee rights. Indeed, her record on employment cases is decidedly moderate—if not more favorable to employers than employees.
For example, Jackson handled several cases involving workplace discrimination during her time on the D.C. District Court, and exhibited a willingness to dismiss claims at the pleadings stage and summary judgment. In Johnson v. Perez, Jackson granted summary judgment to the employer, finding insufficient evidence of pretext. Jackson did acknowledge issues of fact with respect to the employer’s proffered non-discriminatory reason for the firing, poor performance, which likely would have led at least some other judges to push the matter forward to trial. Nevertheless, Jackson dismissed the case. Similarly, in Raymond v. Architect of the Capitol, Jackson granted summary judgment, finding insufficient evidence to support an inference of discrimination related to a three-person panel’s failure to select the plaintiff for promotion. This is noticeable because the employee alleged that one panelist had previously made comments about the employee’s national origin. While Jackson has of course ruled in favor of employees, too, these decisions and others reflect especially close scrutiny of claims brought by plaintiffs alleging discrimination.
Jackson’s record on retaliation claims provides less clarity. While she has dismissed some notable cases on summary judgment—Manus v. Hayden and Salak v. Pruitt—both involved clear evidence that the employer’s termination decision had already been made before the employee engaged in protected activity. On the other hand, Jackson has not been shy about admonishing employers for frivolously seeking dismissal. In Alma v. Bowser, for example, Jackson opened her analysis with a crushing sentence for any scrupulous attorney to read about their brief: “The defendant’s paltry arguments make short work of the Court’s analysis of the present motion to dismiss.”
It bears emphasis that the above-referenced decisions were handed down during Jackson’s time on the D.C. District Court. Jackson’s nomination to the D.C. Circuit was confirmed less than a year ago in June 2021, and the few employment law decisions she has issued since then do not offer much insight into how she would rule from the Supreme Court. In other words, we have little data on Jackson’s decisions as an appellate court judge, which would be far more instructive. Moreover, even Jackson’s trial court decisions tell us nothing about her views on key issues that would likely be brought before the Supreme Court during her tenure, such as forced arbitration and the standard for determining joint employer status.
In short, Jackson is no radical. Should her nomination be confirmed, her record will likely be similar to Breyer’s in the end, if not slightly to the ideological left. As to the question posed, it is unclear whether Jackson will be a friend or foe to employees, and the answer is likely somewhere in between.
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About Alex Hartzband
Alex Hartzband's practice is focused on employment litigation. Alex is a senior associate in the firm's New York office.
Partner at Faruqi & Faruqi, LLP
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