‘An amazing legacy’: Justice Breyer’s replacement could be a former clerk he considers family

Jackson, 51, a highly respected D.C. Circuit Court judge who would become the first Black woman to serve on the Supreme Court if confirmed, spent a formative year clerking for retiring Justice Stephen G. Breyer more than two decades ago.

That connection, which she shares with several of Biden’s top aides, could boost Jackson over her competitors such as US District Court Judge J. Michelle Childs, whom some Biden allies and Republican Senator Lindsey Graham have been loudly lobbying for in recent days. The White House has remained tight-lipped about each candidate’s chances, but a source familiar with the nomination process who declined to be named when discussing internal deliberations said Jackson’s clerkships, her educational history that began in K-12 public schools, and bipartisan support within the legal community all make her an attractive candidate.

Jackson’s history with the retiring justice also provides a window into what she might be like as a Supreme Court justice.

It’s unclear how much, if at all, Breyer, 83, who assiduously steers clear of politics, is pushing to have a say in his own successor, or whom he would recommend. But those who have clerked for him say he treats his clerks like family, and has always shown an interest in helping their careers.

Breyer keeps in touch with his former clerks and can be a call away for advice. He sends holiday cards. He holds reunions every five years.

It is a relationship that many of them say has helped shape their approach to their careers and their lives, knitting them close to the jurist and each other, long after they have left his chambers. The elite group, which Breyer has cultivated over 28 years, includes more than 120 judges, lawyers, and executives across the country, and two members of the Biden administration: National Security adviser Jake Sullivan and White House antitrust expert Tim Wu.

Former Breyer clerks say it is no coincidence that Jackson is among the top contenders for his seat on the bench, which Biden has pledged to fill with a Black woman. Years ago, Breyer made a commitment to hire clerks with diverse life experiences and racial and ethnic backgrounds, with the hopes of building a pipeline of young talent to legal leadership.

And while Breyer’s clerks have risen to positions of power around the country, Jackson would be the first to ascend to the Supreme Court.

Her selection “would be an amazing legacy,” said Stacey Leyton, who clerked for Breyer a year after Jackson and is now a partner at the law firm Altshuler Berzon. “I think Justice Breyer is very proud of her and would be very proud to have her take his seat on the court.”

***

The daughter of public school teachers, Jackson was born in Washington, D.C. and raised in a Jewish suburb of South Miami. She graduated with honors from both Harvard College in 1992 and from Harvard Law School in 1996, and had clerked for two lower court judges — including US District Judge Patti Saris in Massachusetts — when she arrived in the nation’s capital to clerk for Breyer in 1999.

At the time, she was a young lawyer and pregnant with her first child. She was following in the steps of her father, who eventually went on to law school, and like Breyer’s father, later became a school board attorney. Jackson, in her time as a clerk, and Breyer, who had taught at Harvard Law, bonded over education and their appreciation for educators.

Working with colleagues on cases, she quickly gained a reputation as brilliant and meticulous. “She was exceptionally smart, exceptionally thoughtful,” recalled Bradley W. Joondeph, a Santa Clara University School of Law professor who was then clerking for Justice Sandra Day O’Connor and became friends with Jackson.

A Supreme Court clerkship is an intense and formative experience for many — and in some years, depending on the docket and national political climate, a high stakes sprint through the most important and contentious legal issues facing the country. Each of the nine justices only takes on about four law clerks per term, allowing the small classes of clerks to grow close to each other and their bosses as they put in long hours.

“I don’t think you can do that job for a year and not have it play a big role in the formation of your lawyering or, if you go that path, of your judging,” said Erin Glenn Busby, who clerked with Jackson and is now codirector of the Supreme Court Clinic at the University of Texas at Austin School of Law.

Breyer in particular was beloved. The justice, a lanky man with glasses and a balding head, had the sharp, if sometimes absent-minded, nature of the professor he once was. He liked to keep Jackson and his clerks in conversation, as they thought through all the various angles of a case, and encouraged them not to hold back when they disagreed with him.

He made it a point to make his clerks work with those from other chambers with different ideological leanings or beliefs. Breyer placed a major emphasis on openness to being persuaded even as one tries to persuade.

“We very much felt that, even though he was the justice and he had his own mind and was very clear about his own view, we were part of this intellectual project of understanding all the moving parts of an argument,” said Risa Goluboff, dean of the University of Virginia School of Law. “We were in this project of getting the law as right as we can.”

Breyer also had an eccentric streak. He liked to throw out wild hypotheticals on the bench and penned lengthy and sometimes ponderous opinions. He had a funny habit of beginning his questions in the hallway before he walked into their offices, appearing before his clerks mid-sentence and so deep in a line of argument that they would have to quickly catch up.

They noted his love of French literature and his sweet tooth. (One clerk once placed a large bowl of M&Ms on his desk and tallied the times Breyer strolled over to chat.)

Some of his clerks took a lesson from his quirks: You could become someone important and not lose your sense of humor. “You can be yourself,” Goluboff said.

Clerks recall that Jackson shared many qualities with Breyer even then, in her warmth and authenticity, in her open approach to the world, and a presumption of good will in others.

She and her colleagues that term had the benefit of building trust and getting to know each other in the early months before heading into a series of highly contentious cases later in the year. Justices weighed several major constitutional questions, issuing a ruling against a Boy Scouts of America ban on openly gay members, and Breyer delivered the majority opinion barring states from passing so-called partial-birth abortion laws that don’t take into account the mother’s health.

As the stakes rose, some clerks could lose their temper or become so invested in a case that they refused to cede ground. Not Jackson. “Ketanji was notably not like that at all,” said Kermit Roosevelt III, who clerked for Justice David Souter that year and now teaches constitutional law at the University of Pennsylvania Law School. “Ketanji was calm, level-headed, not ideologically driven. She was one of the sensible ones who was willing to compromise.”

***

Breyer, though a reliable vote for the court’s liberal wing on cases spanning environmental protection, abortion, and the death penalty, has frequently stressed that he believes in a nonpartisan, impartial court, and has a reputation for working toward consensus with his more conservative colleagues. His brother, US District Judge Charles Breyer, has said in the past that Breyer would ideally want his seat filled with someone “like-minded” in that way.

Some conservatives, however, have sought to paint Jackson as partisan for a 2019 opinion in which she found that Donald F. McGahn II, then Donald Trump’s White House counsel, had to comply with a House subpoena requesting his testimony as part of the first impeachment probe.

Her record paints a more nuanced picture. Over Jackson’s nine years as a federal judge, first on the US District Court for the District of Columbia, where she was sworn in 2013, and now on the US Court of Appeals for the D.C. Circuit, where she has sat since last summer, her rulings have tended to fall in the same vein as Breyer’s.

Her decisions are often long, thorough, and persuasive, with substantial helpings of history. She tries to write opinions that are accessible to the public, said Amanda L. Tyler, a law professor at the University of California, Berkeley School of Law.

Like Breyer, Jackson also likes to deal with facts and their application in the real world. Tyler and other law professors said that appellate judges often find themselves pulled to study the legal questions of a case at a more intellectual level, distilled away from its real human consequences.

“She looks at a case — not in a vacuum — but asks, ‘How do these legal questions function on the ground, how do they affect the lives of real people?’ ” said Tyler, who clerked for Justice Ruth Bader Ginsburg the same year Jackson was a clerk.

Jackson’s high-profile cases include decisions on environmental, labor, and disability issues, but none of her rulings have garnered as much attention as those involving the Trump administration.

She sided with federal employee unions challenging the former president’s executive orders limiting the rights of federal workers to negotiate their workplace conditions. But she also threw out a lawsuit against Trump administration officials who decided to waive more than two dozen laws as they sought to build a 20-mile portion of the US-Mexico border wall in New Mexico. Her ruling to enforce the McGahn subpoena was 120 pages long and took months for her to issue, a delay that legal analysts say helped Trump’s efforts to stonewall the congressional oversight investigation.

“Presidents are not kings,” Jackson wrote in the opinion’s most memorable line — a zinger that is inarguable but was also criticized for its edge by some Republicans. She added that, “in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.”

Breyer has maintained close ties with Jackson and his other clerks over the years. His brother said Breyer enjoys “seeing how they progress over time,” probably because he was a law professor, like two of their uncles, but also because law clerks can become like confidantes — “the window to the world” to judges who otherwise live deeply private and insular lives.

As she made her way through her legal career, Jackson has at times followed in Breyer’s footsteps. She graduated from Harvard Law, Breyer’s alma mater, and went on to work at major law firms and for the US Sentencing Commission, where she helped interpret the sentencing guidelines that Breyer was key in crafting as Senate Judiciary chief counsel and member of the commission from 1985 to 1989. She later served on the commission as a member, as well.

It was Breyer who swore her in when she first became a federal judge 17 years after her clerkship. In a ceremony where judges and lawyers praised her unflappability as much as her friendship and enthusiastic analysis of reality TV shows like “Survivor,” Breyer praised President Barack Obama for his “wise decision” to nominate Jackson to the D.C. district court and the Senate for confirming her.

“Moreover, this is a family affair,” Breyer told the audience. “This is a judicial family affair.”

Jackson then was promoted to the appellate bench, taking a similar path to the justice, who served on the US Court of Appeals for the First Circuit, which reviews cases from several New England states and Puerto Rico. When President Biden nominated her to the D.C. Circuit last year, the Senate Judiciary Committee received letters of support from her own clerks, as well as 23 of the law clerks who had worked alongside her at the Supreme Court — including those who had clerked for conservative justices.

When the panel asked her about the letters, her response seemed to echo her longtime mentor, who speaks often of the need to disagree without being disagreeable on the Supreme Court.

“The ability to listen with an open mind to other points of view, and to be respectful even if a judge ultimately disagrees with another judge’s analysis or conclusions, is crucial to the effective operation of the court, and, ultimately, maintains public trust in the court as an institution,” Jackson said. She was confirmed last June by a vote of 53 to 44, with three Republican senators joining all 50 Democrats.

On the Supreme Court, her colleagues said they would expect her to stay in tune with many of Breyer’s sensibilities, including his emphasis on serving the public, not individual egos. But Jackson would bring a fresh perspective to the court as a former public defender and district judge. She also brings an important set of lived experiences very different from Breyer’s — as a Black person, as a woman, and as a mother of two daughters, Talia and Leila Jackson.

To laughs from an audience at the University of Georgia, Jackson gave a glimpse into that perspective as she reflected on the time Leila, her youngest, boldly wrote a letter to the president asking him choose Jackson to fill the Supreme Court seat left behind by the late Justice Antonin Scalia in 2016.

“It is has been a lot of hard work trying to balance work and motherhood and like so many other people I often feel as if I am failing,” she said in 2017. But to hear her daughter’s endorsement in that “one brief, shining moment,” she said, she felt that she and her husband, Dr. Patrick Jackson, were well on their way to success in both worlds.

***

Standing next to Biden at the White House in late January, Breyer announced his retirement with a speech on the importance of the court as the place where people from varied backgrounds and points of view have agreed to settle their differences.

He reminded people that American democracy was an experiment, with no guarantee of success. “My grandchildren and their children, they’ll determine whether the experiment still works,” he said. “And, of course, I’m an optimist and I am pretty sure it will.”

But carrying on his legacy could prove tough for anyone on a court — and in a country — that has become increasingly polarized, and particularly so for more liberal judges on a bench with a 6-3 conservative tilt.

Breyer used to stride down the marble hallways of the Supreme Court to track down his arch-conservative former colleague Scalia, and negotiate a compromise with him. Scalia and Breyer, while ideologically miles apart, shared a fundamental understanding of the branches of government and of federal institutions and their role in American life and politics, said Linda Coberly, a former Breyer clerk and managing partner at a national appellate practice.

“I don’t know about how the current justices regard these institutions, but I think there has been a change, and I think it is possible that it will be more difficult today than it was 20 years ago to find common ground,” she said.

Breyer’s replacement, who would join the court’s shrinking liberal wing, would be going into many cases as a member of the losing side, Roosevelt said. In that minority, a justice could plant their flag with biting dissents, or seek compromise.

“I don’t know which is the better approach, but I would trust Ketanji to find it,” Roosevelt said.