The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

The Nomination of Judge Ketanji Brown
March 14, 2022
Jackson to the Supreme Court
David Gunter, Coordinator
On February 25, 2022, President Joe Biden announced his nomination of Judge Ketanji Brown
Section Research Manager
Jackson to serve as Associate Justice of the Supreme Court of the United States. If confirmed,

Judge Jackson would fill the vacancy expected with the retirement of Associate Justice Stephen
G. Breyer in summer 2022, at the end of the Supreme Court’s term. Judge Jackson would be the

first Black woman to serve on the Supreme Court.
Judge Jackson has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 2021, having also
been nominated to that court by President Biden and confirmed by the Senate. Before that, she was a judge on the U.S.
District Court for the District of Columbia, appointed by President Barack Obama in 2013. The nominee earned her law
degree from Harvard Law School, and clerked for three federal judges, including Justice Breyer. In addition to her judicial
experience, Judge Jackson has spent time in private practice at several law firms, served on the U.S. Sentencing Commission,
and worked as a federal public defender—an experience that no current or former Justice has had.
It is difficult to predict with certainty how a prospective Supreme Court Justice might vote in cases that come before the
Court, and history shows that the votes of a Justice do not always match public expectations for a nominee. Predictions may
be even more difficult when, as with Judge Jackson, a nominee’s experience as a judge has been gained mainly on a trial
court rather than an appellate court. The role of a trial court judge is substantially different from the role of an appellate judge
in ways that may make the judge’s underlying judicial philosophy less apparent.
Despite this difficulty, Judge Jackson has written many decisions during her tenure on the federal bench, and those decisions
may provide insight into her approach to resolving legal questions. After providing some context for Judge Jackson’s
nomination, this report offers an overview of her jurisprudence. It reviews broad areas of judicial philosophy that may apply
in many cases, such as constitutional interpretation, statutory interpretation, and stare decisis. It then discusses the nominee’s
decisions in particular areas of law that appear most often in her decisions as a judge, or that are of particular interest to
Congress.
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Contents
Introduction ..................................................................................................................................... 1
Biographical Information ................................................................................................................ 2
Making Predictions About Nominees .............................................................................................. 4
Evaluating the Work of a U.S. District Judge .................................................................................. 7
The Role of a U.S. District Judge.............................................................................................. 7
The Unique Nature of the District of D.C. .............................................................................. 10
Judge Jackson’s Judicial Philosophy .............................................................................................. 11
Constitutional Interpretation .................................................................................................... 11
Statutory Interpretation ........................................................................................................... 12
Stare Decisis ............................................................................................................................ 15
Selected Topics .............................................................................................................................. 18
Administrative Law ................................................................................................................. 18
Justiciability and Agency Discretion ................................................................................ 19
Agency Statutory Interpretations and Chevron Deference ............................................... 21
Review of Agency Decisions as Arbitrary or Capricious.................................................. 23
Business and Employment Law .............................................................................................. 24
Civil Procedure and Jurisdiction ............................................................................................. 28
Standing ............................................................................................................................ 31
Sovereign Immunity and Suits Against Foreign Defendants ............................................ 33
Civil Rights and Qualified Immunity ...................................................................................... 35
Criminal Law and Procedure .................................................................................................. 38
Substantive Criminal Law ................................................................................................. 38
Pretrial, Post-Conviction, and Compassionate Release .................................................... 40
Asset Forfeiture ................................................................................................................. 42
Sentencing ......................................................................................................................... 43
Rights of the Accused ....................................................................................................... 45
Environmental Law ................................................................................................................. 48
Standing and Procedural Issues in Environmental Law Cases ......................................... 49
Scope of Agency Authority and Obligations..................................................................... 50
First Amendment ..................................................................................................................... 51
Immigration ............................................................................................................................. 53
Labor Law ............................................................................................................................... 56
Second Amendment ................................................................................................................ 57
Separation of Powers ............................................................................................................... 58
Tables of Selected Cases ............................................................................................................... 63

Contacts
Author Information ........................................................................................................................ 74

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Introduction
On February 25, 2022, President Joe Biden announced his nomination of Judge Ketanji Brown
Jackson to serve as Associate Justice of the Supreme Court of the United States.1 Since June
2021, Judge Jackson has served as a judge on the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit);2 prior to that, she was a trial judge on the U.S. District Court for
the District of Columbia (District of D.C.) for more than eight years.3 If confirmed, Judge
Jackson would be the first Black woman, the third Black person overall, and the sixth woman
overall, to serve on the Supreme Court.4
Judge Jackson would succeed Associate Justice Stephen G. Breyer, for whom she previously
served as a law clerk.5 In remarks upon her nomination, Judge Jackson praised Justice Breyer as
exemplary for his “civility, grace, pragmatism, and generosity of spirit,” and President Biden
suggested that his nominee for Justice Breyer’s seat would share those qualities.6 Some
commentators have speculated that Judge Jackson would vote similarly to Justice Breyer in
deciding cases, and would often find herself in the minority on a court with six Justices appointed
by Republican Presidents.7
As some past Justices have demonstrated, however, it can be difficult to predict how an individual
Justice will decide particular cases after joining the Court. Differences in legal philosophy can
lead judges to different conclusions, even when those judges have been appointed by Presidents
of the same party (or even the same President). For example, the rise of textualism as a
predominant mode of legal reasoning in recent decades may point to a difference between Judge
Jackson’s jurisprudence and that of Justice Breyer, whose legal philosophy developed in a period
where other modes of legal thought held greater sway among judges and legal academics.8

1 See PN1783, Ketanji Brown Jackson – Supreme Court of the United States, 117th Cong. (received Feb. 28, 2022);
Press Release, Remarks by President Biden on His Nomination of Judge Ketanji Brown Jackson to Serve as Associate
Justice of the U.S. Supreme Court (Feb. 25, 2022), https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/
02/25/remarks-by-president-biden-on-his-nomination-of-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-
the-u-s-supreme-court/ [hereinafter White House Remarks]. See generally CRS Legal Sidebar LSB10701, The Supreme
Court Nomination of Judge Ketanji Brown Jackson: Initial Observations, coordinated by Valerie C. Brannon; CRS
Legal Sidebar LSB10702, Judge Ketanji Brown Jackson: Selected Primary Material, by Juria L. Jones and Laura Deal.
2 167 CONG. REC. S4511 (daily ed. June 14, 2021) (confirmation of Judge Jackson to the D.C. Circuit). References in
this report to a particular “Circuit” refer to the U.S. Court of Appeals for that particular circuit.
3 159 CONG. REC. S2436 (daily ed. Mar. 22, 2013) (confirmation of Judge Jackson to the U.S. District Court).
4 Nora McGreevy, What to Know About Judge Ketanji Brown Jackson’s Historic Nomination to the Supreme Court,
SMITHSONIAN (Mar. 1, 2022), https://www.smithsonianmag.com/smart-news/judge-ketanji-brown-jackson-could-make-
history-as-the-first-black-woman-supreme-court-justice-180979644/.
5 White House Remarks, supra note 1. On January 27, 2022, Justice Breyer informed President Biden that he intended
to retire from active service when the Supreme Court rises for summer recess in 2022, “assuming that by then [his]
successor has been nominated and confirmed.” Press Release, Justice Breyer Retirement Announcement (Jan. 27,
2022). For information and analysis about Justice Breyer’s jurisprudence upon his announcement, see CRS Legal
Sidebar LSB10691, Justice Breyer Retires: Initial Considerations, by Valerie C. Brannon et al.
6 White House Remarks, supra note 1.
7 See, e.g., Robert Barnes, Jackson’s Nomination is Historic, but Her Impact On Supreme Court in Short Term Likely
Will Be Minimal, WASH. POST (Feb. 25, 2022), https://www.washingtonpost.com/politics/2022/02/25/ketanji-jackson-
impact-on-supreme-court/; Adam Liptak, A Groundbreaking Nomination Who’s Unlikely to Reshape the Supreme
Court, N.Y. TIMES (Feb. 25, 2022), https://www.nytimes.com/2022/02/25/us/politics/supreme-court-jackson-
future.html.
8 See Diarmuid F. O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 92 ST. JOHN’S L.
REV. 303, 304 (2017) (noting Associate Justice Elena Kagan’s comment that “we’re all textualists now”); see also CRS
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This report provides an overview of Judge Jackson’s legal philosophy, as gleaned from her
decisions on the district court and the court of appeals and her other writings and public
statements. After providing biographical information about Judge Jackson,9 the report offers
context for understanding how a judge’s background might inform analysis or predictions about
her potential contributions to the Supreme Court.10 In particular, it discusses how Judge Jackson’s
record as a district court judge might compare to the experience that prior nominees had on the
courts of appeals.11 The report then reviews decisions by Judge Jackson that may provide insight
into broad areas of judicial philosophy, such as constitutional interpretation, statutory
interpretation, and stare decisis.12 Finally, the report explores selected legal topics that appear in
Judge Jackson’s decisions and that may be of particular interest to Congress as it considers her
nomination.13
This report focuses primarily on the substance of Judge Jackson’s judicial decisions. Although the
report also refers to some materials that Judge Jackson wrote prior to joining the bench, it does
not provide a full review of those materials, particularly materials she prepared while representing
clients. That is because when an attorney acts as an advocate for a party in litigation, her
arguments on behalf of that party may provide limited insight into her own views and
preferences.14
Biographical Information
Judge Jackson’s academic credentials and professional experience are, in many ways, similar to
those of other Justices who have joined the Supreme Court in recent years.15 An academic

Legal Sidebar LSB10676, The Modes of Constitutional Analysis: Textualism (Part 2), by Brandon J. Murrill;CRS
Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon; see “Statutory
Interpretation” infra.
9 See “Biographical Information” infra.
10 See “Making Predictions About Nominees” infra.
11 See “Evaluating the Work of a U.S. District Judge” infra.
12 See “Judge Jackson’s Judicial Philosophy” infra.
13 See “Selected Topics” infra.
14 During his 2005 confirmation hearing, Chief Justice John Roberts testified that the principle “that you don’t identify
the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of the client, is
critical to the fair administration of justice.” Confirmation Hearing on the Nomination of John G. Roberts, Jr., to be
Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 254 (2005). Other Justices have
made similar statements. See Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate
Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 111th Cong. 143 (2009); The
Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States Before the S. Comm.
on the Judiciary, 111th Con. 170 (2010); Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch, to be an
Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 115th Cong. 179
(2017). For an alternate perspective, see William G. Ross, The Questioning of Lower Federal Court Nominees During
the Senate Confirmation Process, 10 WM. & MARY BILL RTS. J. 119, 161 (2001) (acknowledging that “most lawyers
advocate positions about which they hold indifferent or conflicting opinions,” but suggesting that a “nominee who
consistently has acted as an advocate for particular positions or causes is likely to have personal sympathy for such
positions or causes”).
15 See, e.g., CRS Report R46562, Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme
Court, coordinated by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis; CRS Report R45293,
Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court, coordinated by Andrew
Nolan; CRS Report R44778, Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court,
coordinated by Andrew Nolan.
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standout, she moved between public service and the private sector before gaining judicial
experience in the federal courts.
Judge Jackson was born in Washington, D.C., in 1970 and then lived in Miami, Florida.16 She
received her undergraduate degree magna cum laude from Harvard University in 1992. After a
year working as a journalist for Time, she entered Harvard Law School, where she served as a
supervising editor of the Harvard Law Review. She earned her law degree cum laude in 1996.
Judge Jackson clerked for three federal judges appointed by Presidents of both parties: Judge Patti
B. Saris of the U.S. District Court for the District of Massachusetts; Judge Bruce M. Selya of the
First Circuit; and Justice Breyer of the Supreme Court.17
Before and after her Supreme Court clerkship, Judge Jackson was an associate attorney at several
private law firms in Boston and Washington, D.C.18 From 2003 to 2005, she was an Assistant
Special Counsel for the U.S. Sentencing Commission, an independent agency in the judicial
branch that Congress created in 1984 to address federal sentencing disparities.19 In 2005, she
joined the Office of the Federal Public Defender in the District of Columbia, representing
indigent criminal defendants in appeals before the D.C. Circuit. Judge Jackson spent an additional
three years as counsel at the Washington, D.C. law firm of Morrison & Foerster LLP, with a
practice focusing on appellate litigation, and then returned to the Sentencing Commission as a
Commissioner and Vice Chair from 2010 to 2014.20
One aspect of Judge Jackson’s background that differs from most current Justices is her
experience in criminal defense.21 If confirmed to the Supreme Court, Judge Jackson would be the
first Justice to have served as a federal public defender.22 She would also be the second Justice
(after Justice Breyer) to have served on the Sentencing Commission.23
Judge Jackson was first nominated by President Barack Obama to the District of D.C. in 2012.
The Senate returned her nomination to the President because it failed to take action on the

16 In addition to sources cited in the footnotes, biographical information in this section is drawn from the following
sources: Ketanji Brown Jackson, U.S. COURT OF APPEALS FOR THE D.C. CIR., https://www.cadc.uscourts.gov/internet/
home.nsf/Content/VL+-+Judges+-+KBJ (last visited Mar. 3, 2022); S. COMM. JUDICIARY, 117th Cong., QUESTIONNAIRE
FOR NOMINEE TO THE SUPREME COURT, https://www.judiciary.senate.gov/jackson-sjq-scotus (last visited Mar. 3, 2022)
[hereinafter Senate Judiciary Questionnaire].
17 Judge Saris was appointed to the U.S. District Court by President Bill Clinton. See Judge Patti B. Saris, U.S. DIST.
CT. FOR THE DIST. OF MASS., https://www.mad.uscourts.gov/boston/saris.htm (last visited Mar. 3, 2022). Judge Selya
was appointed to both the U.S. District Court and the First Circuit by President Ronald Reagan. See Bruce M. Selya,
U.S. COURT OF APPEALS FOR THE FIRST CIR., https://www.ca1.uscourts.gov/bruce-m-selya (last visited Mar. 3, 2022).
Justice Breyer was appointed to the First Circuit by President Jimmy Carter, and then to the Supreme Court by
President Clinton. See Breyer, Stephen Gerald, FED. JUDICIAL CTR., https://www.fjc.gov/history/judges/breyer-stephen-
gerald (last visited Mar. 3, 2022).
18 See Senate Judiciary Questionnaire, supra note 16, at 2–3.
19 About, U.S. SENTENCING COMM’N, https://www.ussc.gov/about-page (last visited Mar. 3, 2022); see also CRS Report
R41696, How the Federal Sentencing Guidelines Work: An Overview, by Charles Doyle.
20 See Senate Judiciary Questionnaire, supra note 16, at 1–4.
21 Associate Justice Samuel Alito and Associate Justice Sonia Sotomayor served as federal or state prosecutors prior to
joining the bench; Justice Breyer was formerly a Watergate Assistant Special Prosecutor. See Current Members,
SUPREME COURT OF THE U.S., https://www.supremecourt.gov/about/biographies.aspx (last visited Mar. 3, 2022).
22 See Press Release, President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S.
Supreme Court (Feb. 25, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/25/president-
biden-nominates-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court/.
23 Former Commissioner Information, U.S. SENTENCING COMM’N, https://www.ussc.gov/about/who-we-are/
commisioners/former-commissioner-information (last visited Mar. 3, 2022).
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nomination before the 112th Congress adjourned.24 President Obama renominated her to the
bench in 2013, and the Senate confirmed her by voice vote.25
During her time on the bench, Judge Jackson has held teaching affiliations with Harvard Law
School and George Washington University Law School. She has served on the Executive
Committee and Board of Overseers of Harvard University, the Council of the American Law
Institute, and other professional organizations related to criminal justice, administrative law, and
the Supreme Court.26
After serving on the district court bench for more than eight years, Judge Jackson was nominated
to the D.C. Circuit by President Biden in 2021. The Senate confirmed her on June 14, 2021, by a
vote of 53-44.27
Making Predictions About Nominees
While observers often look to a Supreme Court nominee’s background, judicial decisions, non-
judicial writings, and public statements in an attempt to determine how the nominee might
approach future cases, there are several reasons why it is difficult to predict with certainty how a
nominee would affect the Court if confirmed.
First, a Supreme Court nominee’s background and past statements may not be a reliable guide to
how the nominee will approach future cases. The Supreme Court often confronts novel or unusual
legal questions that may differ substantially from those a nominee has previously considered,
meaning the nominee may have no prior statements on some subjects.28 In addition, history
provides multiple examples of Supreme Court Justices whose decisions on the Court surprised
observers familiar with their pre-confirmation reputations.29 For example, Associate Justice Felix
Frankfurter, who had a reputation as a “progressive” legal scholar prior to his appointment to the
Court in 1939,30 disappointed some early supporters by subsequently becoming a voice for
judicial restraint and caution when the Court reviewed laws that restricted civil liberties during
World War II and the early Cold War era.31 Associate Justice Harry Blackmun served on the

24 159 CONG. REG. S24 (Jan. 3, 2013).
25 159 CONG. REC. S2436 (daily ed. Mar. 22, 2013).
26 See Senate Judiciary Questionnaire, supra note 16, at 4–6.
27 167 CONG. REC. S4511 (daily ed. June 14, 2021).
28 See “Evaluating the Work of a U.S. District Judge” infra.
29 Christine Kexel Chabot & Benjamin Remy Chabot, Mavericks, Moderates, or Drifters? Supreme Court Voting
Alignments, 1838–2009, 76 MO. L. REV. 999, 1021 (listing Justices William J. Brennan Jr., Tom C. Clark, Felix
Frankfurter, Oliver Wendell Holmes Jr., John McLean, James Clark McReynolds, Stanley Forman Reed, David Souter,
John Paul Stevens, Earl Warren, and James Moore Wayne as examples of jurists who “disappointed” the expectations
of the President who appointed them to the Court); see also The Judicial Nomination and Confirmation Process:
Hearings Before the Subcomm. on Admin. Oversight & the Courts, S. Comm. on the Judiciary, 107th Cong. 195 (2001)
(statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, The Catholic University of America)
(similar).
30 See Joseph L. Rauh Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme Court, 69 N.C. L. REV. 213,
220 (1990) (“When Frankfurter took his seat on the Supreme Court in January 1939, almost everyone assumed that he
would become the dominant spirit and intellectual leader of the new liberal Court.”); JAMES F. SIMON, THE
ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 13–16, 46–47 (1989)
(noting fears in some political circles that Justice Frankfurter was a Communist or Communist sympathizer,
“inspir[ing] American conservatives to label Frankfurter a dangerous radical”).
31 See Rauh, supra note 30, at 220 (“But . . . a deep belief in judicial restraint in all matters overtook even [Justice
Frankfurter’s] lifelong dedication to civil liberties.”); see, e.g., Korematsu v. United States, 323 U.S. 214, 225 (1944)
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Eighth Circuit for a decade prior to his appointment to the Court in 1970 and was considered a
“strict constructionist” by President Richard Nixon.32 In 1973, however, he authored the majority
opinion in Roe v. Wade,33 and at the time of his retirement he was generally considered one of the
more liberal voices on the Court.34 Associate Justice Anthony Kennedy, appointed by President
Ronald Reagan, was often characterized as the Court’s “swing vote” in his later years on the
bench,35 frequently aligning with the more conservative wing of the Court, but sometimes joining
the more liberal wing in closely divided cases.36
Even a Justice with a significant judicial record and a well-defined judicial philosophy may
employ that philosophy to reach results that do not align with the Justice’s perceived political
alignment. One of President Donald Trump’s nominees to the Supreme Court, Associate Justice
Neil Gorsuch, served on the Tenth Circuit for just over a decade prior to his nomination.37 In
2020, commentators expressed surprise when Justice Gorsuch—“widely considered one of the
more conservative justices on the Supreme Court”—wrote the majority opinion in Bostock v.
Clayton County, which held that a federal law prohibiting employment discrimination on the
basis of sex also protected gay and transgender employees.38 Some scholars, however, saw Justice
Gorsuch’s opinion as driven by a textualist approach to statutory interpretation and were not
surprised by the outcome in the case.39
Second, even if it were possible to predict how an individual Supreme Court Justice would vote
in future matters, each Justice decides cases as part of a multi-member panel where her single
vote generally does not determine how any given matter will be decided. A single Justice’s impact
on the Court thus depends in part on the Court’s composition as a whole and her relationships
with the other Justices. As Associate Justice Byron White once noted, “every time a new justice
comes to the Supreme Court, it’s a different court.”40 If confirmed, Judge Jackson would join a
court that has already undergone significant recent changes: Justice Breyer’s retirement will

(Frankfurter, J., concurring) (contending that the validity of the Japanese-American civilian exclusion order was the
“business” of Congress and the Executive, not the Court); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646
(1943) (Frankfurter, J., dissenting) (arguing for the constitutionality of a World War II-era law requiring students to
salute the flag); Dennis v. United States, 341 U.S. 494, 556 (1951) (Frankfurter, J., concurring) (upholding the
conviction of three defendants under the Smith Act for conspiracy to organize the Communist Party as a group
advocating the overthrow of the U.S. government by force).
32 See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 97 (1979).
33 410 U.S. 113 (1973).
34 See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 235 (2005) (declaring that, by 1994, “Harry Blackmun was,
by wide consensus, the most liberal member of the Supreme Court”).
35 See generally CRS Report R45256, Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, by
Andrew Nolan, Kevin M. Lewis, and Valerie C. Brannon.
36 See, e.g., Roper v. Simmons, 543 U.S. 551 (2005); United States v. Windsor, 570 U.S. 744 (2013); Obergefell v.
Hodges, 576 U.S. 644 (2015).
37 See CRS Report R44778, Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court.
38 140 S. Ct. 1731, 1737 (2020); CRS Legal Sidebar LSB10496, Supreme Court Rules Title VII Bars Discrimination
Against Gay and Transgender Employees: Potential Implications, by Jared P. Cole; See Harper Neidig & John Kruzel,
Gorsuch Draws Surprise, Anger With LGBT Decision, THE HILL (June 15, 2020), https://thehill.com/regulation/court-
battles/502834-gorsuch-draws-surprise-anger-with-lgbt-decision; Robert Barnes, Neil Gorsuch? The Surprise Behind
the Supreme Court’s Surprising LGBTQ Decision, WASH. POST (June 16, 2020),
https://www.washingtonpost.com/politics/courts_law/neil-gorsuch-gay-transgender-rights-supreme-court/2020/06/16/
112f903c-afe3-11ea-8f56-63f38c990077_story.html.
39 Ezra Ishmael Young, Bostock is a Textualist Triumph, JURIST (June 25, 2020, 3:53 PM), https://www.jurist.org/
commentary/2020/06/ezra-young-bostock-textualist-triumph.
40 David B. Rivkin Jr. & Andrew M. Grossman, A Cautiously Conservative Supreme Court, WALL ST. J. (July 1, 2021).
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create the fourth vacancy on the High Court in the past five years.41 Thus, even before Justice
Breyer’s retirement, Court observers were engaged in analysis and debate over whether and how
the Court as a whole has changed its approach to certain legal issues in recent years.42
Some commentators have suggested that joining a Supreme Court where three of nine Justices
were appointed by Democratic presidents could limit Judge Jackson’s influence on the Court in
the short term.43 One such commentator speculated that if Judge Jackson is confirmed, “[t]here
will still be only three liberals on the court, specializing in writing dissents.”44 History paints a
more nuanced picture, however. The previous vacancy on the High Court, caused by the death of
Associate Justice Ruth Bader Ginsburg in September 2020, resulted in the confirmation of
Associate Justice Amy Coney Barrett to fill the seat.45 At the time, some predicted that if Justice
Barrett was confirmed, the Court would routinely decide cases by 6-3 votes, with the three
Justices nominated by Democratic presidents in dissent.46 Although the Court did reach some 6-3
decisions along perceived partisan lines during Justice Barrett’s first term,47 the most common
outcome was for the Justices to reach a decision unanimously; less than a quarter of cases were
divided 6-3 or 5-3.48 This is largely consistent with past trends. One Court observer reports that
since 2010, 46% of the Court’s decisions have been unanimous,49 and since Chief Justice John
Roberts joined the Court in 2005, the Court has decided 20% of its cases 5-4.50 Even when the
Court issues closely divided opinions, the divides may not track the Justices’ perceived partisan
alignment.51
Moreover, a Justice who frequently finds herself in the minority may nonetheless influence the
Court in various ways.52 In the short term, she may work with colleagues to reach compromise

41 See Justices 1789 to Present, SUPREME CT. OF THE U.S., https://www.supremecourt.gov/about/members_text.aspx
(last visited Mar. 8, 2022).
42 See, e.g., Aziz Huq, The Roberts Court is Dying. Here’s What Comes Next., POLITICO (Sept. 15, 2021); Moira
Donegan, The US Supreme Court is Deciding More and More Cases in a Secretive ‘Shadow Docket’, THE GUARDIAN
(Aug. 31, 2021); Erwin Chemerinsky, Precedent Seems to Matter Little in the Roberts Court, ABA J. (June 3, 2021);
Jonathan Skrmetti, The Triumph of Textualism: “Only the Written Word Is the Law”, SCOTUSBLOG (June 15, 2020),
https://www.scotusblog.com/2020/06/symposium-the-triumph-of-textualism-only-the-written-word-is-the-law.
43 See, e.g., Biden Is Expected to Nominate Ketanji Brown Jackson to the Supreme Court, NPR (Feb. 25, 2022)
(describing Judge Jackson’s effect on the Court’s composition as “[n]ot much in terms of the overall ideological
balance [because t]here will still be a 6-3 super majority for conservatives because she’s replacing Justice Breyer, a
fellow liberal who’s retiring”).
44 Barnes, supra note 7.
45 See Barrett, Amy Coney, FED. JUD. CTR., https://www.fjc.gov/history/judges/barrett-amy-coney (last visited Mar. 8,
2022).
46 E.g., Linda Greenhouse, The Supreme Court Is Now 6-3. What Does That Mean?, N.Y. TIMES (Nov. 5, 2020).
47 See, e.g., Brnovich v. Democratic Nat’ Comm., 141 S. Ct. 2321 (2021); Jones v. Mississippi, 141 S. Ct. 1307 (2021).
See generally, Stat Pack for the Supreme Court’s 2020–21 Term, SCOTUSblog (July 2, 2021),
https://www.scotusblog.com/wp-content/uploads/2021/07/Final-Stat-Pack-7.6.21.pdf [hereinafter Stat Pack].
48 Kalvis Golde, In Barrett’s First Term, Conservative Majority is Dominant but Divided, SCOTUSBLOG (July 2,
2021), https://www.scotusblog.com/2021/07/in-barretts-first-term-conservative-majority-is-dominant-but-divided/.
49 Stat Pack, supra note 47.
50 Golde, supra note 48.
51 See, e.g., Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1747–51 (2019) (majority opinion of Thomas, J.,
joined by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.) (holding that a third-party counterclaim defendant may not
remove a case to federal court under either the general removal statute or the Class Action Fairness Act); Mont v.
United States, 139 S. Ct. 1826 (2019) (majority opinion of Thomas, J., joined by Roberts, C.J,. and Ginsburg, Alito,
and Kavanaugh, JJ.) (holding that a period of supervised release may be tolled if the defendant is charged with another
crime and placed in pretrial detention).
52 See, e.g., Ruth Marcus, I’ve Covered the Supreme Court for Years. Here’s What to Know about Jackson’s
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decisions that garner support from a broader group of Justices. Justice Breyer, Judge Jackson’s
mentor and possible predecessor on the Court, spent his entire career on the Court on panels
where Democratic appointees were in the minority, but he authored opinions or cast deciding
votes in a number of high-profile cases.53 In the long term, even if Justice is often in the minority,
that Justice may shape the development of the law by authoring separate opinions.54
Concurrences or dissents in cases involving statutory interpretation may encourage Congress to
enact legislative reforms.55 Separate opinions may also persuade courts to adopt the author’s
preferred approach in future cases.56
Evaluating the Work of a U.S. District Judge
Judge Jackson’s experience on the federal bench is somewhat different from that of most recent
Supreme Court nominees. Like eight Justices on the current Court, Judge Jackson has been
nominated to the Supreme Court while serving on one of the federal courts of appeals.57 Several
of the current Justices had long track records on a court of appeals that could be evaluated at the
time of their nomination to the Supreme Court, while others (similar to Judge Jackson) had a
relatively short appellate-court tenure before their nomination.58 Among the current Justices,
however, only Associate Justice Sonia Sotomayor shares Judge Jackson’s experience as a U.S.
District Judge.59 Understanding the work of a district court judge—particularly in the District of
D.C.—and how that work differs from the work of an appellate judge is important to evaluating
Judge Jackson’s judicial experience.
The Role of a U.S. District Judge
The district courts “have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States,” with limited exceptions.60 Accordingly, federal civil cases
typically begin with the filing of a complaint in the court of a relevant district.61 Federal criminal

Nomination, WASH. POST (Feb. 28, 2022), https://www.washingtonpost.com/opinions/2022/02/28/ruth-marcus-ketanji-
brown-jackson-supreme-court/; 13 Legal Experts on How Breyer’s Replacement Will Change the Court, POLITICO (Jan.
27, 2022) https://www.politico.com/news/magazine/2022/01/27/breyer-supreme-court-nominee-successor-00000019
(last accessed Mar. 8, 2022).
53 Brent Kendall, Jess Bravin, & Laura Kusisto, Justice Breyer’s Retirement Could Reshape Supreme Court’s Liberal
Wing, WALL ST. J. (Jan. 27, 2022), https://www.wsj.com/articles/justice-breyers-retirement-could-reshape-supreme-
courts-liberal-wing-11643298816.
54 See, e.g., Henry Gass & Noah Robertson, Minority Report: How Justices from Harlan to Breyer Shaped Legal
Opinion, CHRISTIAN SCI. MONITOR (Jan. 27, 2022).
55 See, e.g., Terry v. United States, 141 S. Ct. 1858, 1868 (Sotomayor, J., concurring in part and concurring in the
judgment) (identifying adverse consequences of the Court’s interpretation of the First Step Act of 2018, but asserting
that “Congress has numerous tools to right this injustice”).
56 Gass & Robertson, supra note 54.
57 See Current Members, SUPREME COURT OF THE U.S., https://www.supremecourt.gov/about/biographies.aspx (last
visited Mar. 3, 2022). Only Justice Kagan, who was the Solicitor General of the United States at the time of her
nomination, had no experience as an appellate judge.
58 Id. For example, Justice Alito served on the Third Circuit from 1990 to 2006 before his nomination to the Supreme
Court, while Associate Justice Clarence Thomas served on the D.C. Circuit from 1990 to 1991. Id.
59 Id.
60 28 U.S.C. § 1331; but see id. § 1251.
61 FED. R. CIV. P. 3.
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cases likewise generally begin in the district court with jurisdiction over the place of arrest.62
District courts, therefore, are the first to analyze most issues that may ultimately be reviewed by
courts of appeals or the Supreme Court.
The role of a district court judge differs substantially from the role of a judge on a federal court of
appeals. In contrast to appeals courts, which typically consider written arguments and may have
limited contact with the parties and their attorneys, district courts “manage the daily rough and
tumble of litigation.”63 The district courts act as finders of fact—that is, they take testimony,
establish a record of evidence, and resolve disputed factual issues when it is necessary to decide a
case—while the courts of appeals generally do not.64 In some cases, a district court judge will
take testimony in a bench trial and resolve disputed factual issues herself, while in other cases, the
judge will empanel and instruct a jury.65 The district court’s fact-finding role drives a significant
amount of litigation activity that is unique to trial practice, including document discovery and
deposition discovery, which the judge oversees.66 Many judges have standing orders, unique to
their courtrooms, to help them manage this process.67 Separate case management orders are often
used in complex cases with many parties and claims, and judges have wide discretion to tailor
such orders to the case before them.68
In some ways, this role vests the district court judge with more independence than an appellate
judge. The courts of appeals generally recognize that it is not their role to “second-guess[]
conscientious district court judges,” each of whom “must strive to manage his or her calendar
efficiently.”69 On a wide range of matters, including many procedural and case management
questions, and even findings of fact, the courts of appeals focus not on how they might have
resolved an issue in the first instance, but only on whether the district court abused its own
discretion.70 The district court judge also often sits alone; she has no need to tailor her opinions to
win the support of a colleague.
There are other ways, however, in which a trial court judge is more constrained than an appellate
judge. District court judges are solely responsible for a high volume of cases, many of which may
be legally straightforward or frivolous.71 A typical district court case also often results in more
rulings and orders than a typical appeal, including rulings on motions to dismiss, discovery

62 FED. R. CRIM. P. 5(c).
63 Simonoff v. Saghafi, 786 F. App’x 582, 584 (6th Cir. 2019).
64 Compare, e.g., FED. R. CIV. P. 39 (providing for jury trial or bench trial of issues of fact), with FED. R. APP. P. 10
(providing for court of appeals review based on the record).
65 See FED. R. CIV. P. 38, 39.
66 See, e.g., FED. R. CIV. P. 37 (authorizing the district court to sanction parties for violations of the discovery rules).
67 See Kimberly A. Jolson, The Power of Suggestion: Can a Judicial Standing Order Disrupt a Norm?, 89 U. CINN. L.
REV. 455, 459 (2021).
68 See, e.g., Hamer v. LivaNova Deutschland GmbH, 994 F.3d 173, 178 (3d Cir. 2021).
69 Mindek v. Rigatti, 964 F.2d 1369, 1374 (3d. Cir. 1992).
70 Id. (citing Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); see also, e.g., Peugh v.
United States, 569 U.S. 530, 537 (2013) (applying an abuse-of-discretion standard to the reasonableness of a criminal
sentencing decision); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–43 (1997) (applying an abuse-of-discretion standard
to the decision to exclude expert testimony); Pierce v. Underwood, 487 U.S. 552, 571 (1988) (applying an abuse-of-
discretion standard to the decision to deny attorneys’ fees).
71 In the federal district courts as a whole, 517 cases per active judge were terminated in 2021, and 1,115 cases per
active judge remained pending at the end of the year. In the District of D.C., 276 cases per active judge were terminated
in 2021, and 386 cases per active judge remained pending at the end of the year. Statistics & Reports: United States
District Courts—National Judicial Caseload Profile, U.S. CTS., https://www.uscourts.gov/sites/default/files/
data_tables/fcms_na_distprofile1231.2021.pdf.
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matters, summary judgment, and pretrial issues.72 Some issues—for example, the admission of a
piece of evidence or a particular jury instruction—may arise as one of many decisions to be made
quickly during a trial; the importance of any particular decision may not be immediately evident.
In some cases, district court judges consider purely legal questions on written submissions, take
time to consider their rulings, and issue detailed opinions deciding or dismissing cases on legal
grounds. Those decisions, however, are subject to the binding precedent of both the Supreme
Court and the relevant court of appeals, and therefore may not reflect the district court judge’s
own view of the law.73 Judge Jackson herself has noted that, unlike a Supreme Court Justice, a
district court judge is not called upon to articulate “broader legal principles to guide the lower
courts,” and therefore is less likely to “develop substantive judicial philosophies to guide [herself]
in this task.”74
District court decisions are also reviewed more frequently than appellate decisions,75 which may
encourage a district court judge facing a new legal issue to be more cautious or attempt to predict
how an appeals court would decide the question. Indeed, some observers have discussed the rate
at which Judge Jackson’s decisions have been reversed by the D.C. Circuit, although others,
including Judge Jackson herself,76 believe that reversal rates are not a very meaningful way to
analyze a judge’s record.77 This report does not attempt to identify a quantitative method of

72 See, e.g., FED. R. CIV. P. 12 (dismissal motions), 37 (discovery motions), 56 (summary judgment).
73 Although an appeals court is bound by prior published opinions of other panels of the same circuit and Supreme
Court decisions, there are also mechanisms for a court of appeals to reconsider and overrule its own past decisions or
the decisions of a panel. See FED. R. APP. P. 35 (en banc determinations). The Supreme Court is influenced by stare
decisis, the principle that applicable precedents should be respected, but is not bound to follow precedent. See “Stare
Decisis” infra.
74 S. COMM. JUDICIARY, 117th Cong., COMMITTEE QUESTIONNAIRE ATTACHMENTS at 499 (responses to questions by
Senator Ted Cruz), https://www.judiciary.senate.gov/imo/media/doc/Jackson%20SJQ%20Attachments%20Final.pdf
(last visited Mar. 9, 2022) [hereinafter Senate Judiciary Attachments]. The Senate Judiciary Attachments are a
collection of documents that Judge Jackson appended to her Committee questionnaire, including a wide variety of
materials, some of which were previously submitted to the Committee or are also available from other sources. Notably
for purposes of this report, it also includes Judge Jackson’s responses to written questions posed by Members of the
Senate Judiciary Committee during the confirmation process for Judge Jackson’s prior judicial nominations; citations
herein to the Senate Judiciary Attachments identify those responses.
75 A final district court decision, and some interlocutory decisions, may be appealed to the court of appeals, which must
consider the appeal if certain requirements are met. See FED. R. APP. P. 3 (appeals as of right). In contrast, review
beyond the initial appellate panel is discretionary and rare. A panel decision in the court of appeals may be reheard by
the full court sitting en banc. See FED. R. APP. P. 35 (en banc determinations); Statistics & Reports: Table B-10, U.S.
CTS., https://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables?tn=b-
10&pn=All&t=All&m%5Bvalue%5D%5Bmonth%5D=&y%5Bvalue%5D%5Byear%5D= (showing that 28,445
appeals were terminated by panel decision during the 12 months ending September 30, 2021, and only 40 cases were
terminated by en banc decision). Decisions of the courts of appeals may also be reviewed by the Supreme Court on a
discretionary basis. See SUP. CT. R. 10; Supreme Court 2020 Term—The Statistics, 135 HARV. L. REV. 491, 498 (2021)
(calculating that the Court granted 1.4% of petitions for review during the 2020 Term).
76 See Senate Judiciary Attachments, supra note 74, at 410–11 (response to questions from Senator Chuck Grassley)
(“Looking only at the number of reversals relative to the number of decisions that are ‘actually appealed’ merely
assesses a losing party’s odds of being successful if an appeal is sought; that computation does not account for the
overall number of opinions that the judge has issued and the fact that a losing party may choose to forego an appeal for
a number of reasons, including the recognition that the ruling is correct and would be sustained on appeal. . . Not all
reversals are equivalent.”).
77 See, e.g., Reversal Rates Imperfect Tool For Judging Supreme Court Nominees, BLOOMBERG L. (Feb. 10, 2022),
https://news.bloomberglaw.com/business-and-practice/reversal-rates-imperfect-tool-for-judging-supreme-court-
nominees.
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calculating the results of appeals from the nominee’s decisions. Instead, the report provides
qualitative discussions of cases in which Judge Jackson was reversed on appeal.
The Unique Nature of the District of D.C.
Another element to consider in evaluating Judge Jackson’s record as a judge is the unique nature
of the U.S. District Court for the District of Columbia.78 Observers have long recognized that the
D.C. Circuit has a different kind of docket, providing a different kind of judicial experience than
other federal courts of appeals.79 The same is true of the district court in Washington, D.C., due to
the high percentage of cases filed there that involve the federal government.
The District of D.C., like other federal courts, is a court of limited jurisdiction.80 The District of
D.C.’s location, however, has given rise to its special role (along with the D.C. Circuit) in
“overseeing the coordinate branches—the executive and legislative branches.”81 Historically, the
District of D.C. has decided many constitutional issues related to the separation of powers,
executive privilege and accountability, and Congress’s impeachment power.82 The D.C. federal
courts have also “reviewed countless actions of administrative agencies and have contributed
significantly to the development of what we have come to call ‘administrative law.’”83 Although
the D.C. Circuit is perhaps most notable in this respect due to its exclusive jurisdiction over many
types of agency cases,84 Congress also provided that the District of D.C. either has exclusive
jurisdiction or is an appropriate venue for a variety of civil actions involving government
agencies, Congress, foreign governments, and private parties.85
Court statistics reflect the District of D.C.’s focus on cases civil involving the United States. The
District of D.C. plays a disproportionately large role in deciding civil cases involving the
government compared to other federal district courts: Over the five calendar years between 2017
and 2021, about 1% of all civil cases in the federal district courts were filed in the District of
D.C., but about 4.5% of all civil cases involving the United States were filed in that district. 86 In

78 The District of D.C. is not a court of general jurisdiction for the District of Columbia, nor is it the primary court for
cases arising under the laws of the District of Columbia. The District of Columbia has a separate court system,
analogous to state courts elsewhere, that considers cases under local law. See generally D.C. CODE §§ 11-701–11-947;
District of Columbia Court Reorganization Act of 1970, Pub. L. No. 91-358, 84 Stat. 475 (1970); John G. Roberts, Jr.,
What Makes the D.C. Circuit Different? A Historical View, 92 VA. L. REV. 375, 387–89 (2006).
79 See, e.g., Roberts, supra note 78, at 388–89; Eric M. Fraser, et al., The Jurisdiction of the D.C. Circuit, 23 CORNELL
J. L. & PUB. POL’Y 131, 132 (2013).
80 See, e.g., Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).
81 Susan Low Bloch & Ruth Bader Ginsburg, Celebrating the 200th Anniversary of the Courts of the District of
Columbia, 90 GEO. L. J. 549, 565 (2002).
82 See id. at 564–74.
83 Id. at 575.
84 See Roberts, supra note 78, at 389.
85 See, e.g., 2 U.S.C. § 922(a)(1) (providing that any Member of Congress may bring an action in the District of D.C. to
challenge Presidential budget sequestration orders); 15 U.S.C. § 146a (providing that the District of D.C. has
concurrent jurisdiction over suits involving a China Trade Act corporation); 28 U.S.C. § 1365(a) (providing that the
District of D.C. has exclusive jurisdiction over actions brought by the Senate or its committees to enforce a subpoena);
id. § 1391(f)(4) (providing jurisdiction in the District of D.C. for civil actions against a foreign state); 30 U.S.C. §
1276(a)(1) (providing for exclusive review in the District of D.C. over national regulations promulgated by the
Department of the Interior related to surface coal mining); 52 U.S.C. § 10310(b) (providing that the District of D.C. has
exclusive jurisdiction to issue certain declaratory judgments related to voting rights).
86 See Statistics & Reports: Table C-3, U.S. CTS., https://www.uscourts.gov/statistics-reports/caseload-statistics-data-
tables. Table C-3 provides the number of filed civil cases for all district courts, and for each jurisdiction, in the
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turn, those cases make up a disproportionately large share of the docket in the District of D.C.,
compared to other kinds of cases: Civil cases involving the government constituted about 13% of
all civil cases filed in the federal district courts during that period, but more than 56% of civil
cases in the District of D.C.87 As a result, the issues of most interest to Congress may appear more
often in Judge Jackson’s record on the bench than in those of judges in different districts.
Judge Jackson’s Judicial Philosophy
Judge Jackson has said that she follows a specific methodology when deciding cases, “looking
only at the arguments that the parties have made, at the facts in the record of the case, and at the
law as [she] understand[s] it,” including governing statutes and binding precedent.88 By focusing
on these factors and “methodically and intentionally setting aside personal views,” the nominee
has attempted to achieve “fidelity to the rule of law” and “rule without fear or favor.”89 Citing the
necessity of adhering to the rule of law, she has stressed the importance of judicial independence
from the political branches.90 At the same time, Judge Jackson has stated that her prior
professional experiences have influenced her approach to judging.91 As an example, she said that
as a public defender, she discovered that many of her clients did not understand the criminal
proceedings they had personally experienced; accordingly, as a district court judge, she took
“extra care to communicate with the defendants” in her courtroom, ensuring that they understood
the process and the reasons for their prosecution.92
Constitutional Interpretation
One of the most critical jobs of a Supreme Court Justice is to assess the constitutionality of
government action.93 Where the constitutional text is ambiguous or silent, many Supreme Court
Justices have developed methods to determine the meaning of constitutional provisions.94 For
example, some constitutional scholars and Justices have espoused “originalism,” an approach that
focuses on the original public meaning of the constitutional text at the time of the Founding.95

categories of “Total Civil Cases,” “Total U.S. Civil Cases,” and “Total Private Civil Cases.” CRS aggregated the
subtotals in each of those three categories for each calendar year ending December 31, 2017 through December 31,
2021, to derive the percentages cited in the text.
87 See id.
88 Nominee to be U.S. Court of Appeals Judge of the District of Columbia Circuit: Hearing Before the Senate Judiciary
Committee, 117th Cong. (Apr. 28, 2021) (testimony of Judge Jackson) [hereinafter D.C. Circuit Confirmation
Hearing].
89 Id.; see also Senate Judiciary Attachments, supra note 74, at 451 (responses to questions from Senator Mike Lee)
(stating that “empathy should not play a role in a judge’s consideration of a case” because judges have “a duty to
decide cases based solely on the law, without fear or favor, prejudice or passion”); id. at 502 (responses to questions
from Senator Jeff Flake) (“A good judge has professional integrity, which includes reverence for the rule of law, total
impartiality, and the ability to apply the law to the fairly determined facts of the case without bias or any preconceived
notion of how the case will be resolved.”).
90 See D.C. Circuit Confirmation Hearing, supra note 88.
91 Id.
92 Id.
93 See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) (“The judicial power of the United States is
extended to all cases arising under the constitution.”).
94 See generally CRS Report R45129, Modes of Constitutional Interpretation, by Brandon J. Murrill.
95 See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 856–57 (1989); Lucia v. SEC, 138 S.
Ct. 2044, 2056 (2018) (Thomas, J., concurring); see generally CRS Legal Sidebar LSB10677, The Modes of
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Other jurists have argued for more pragmatic approaches, looking to the likely practical
consequences of a constitutional construction and what an interpretation would mean for the
functioning of the government.96 Justice Breyer, in particular, has described U.S. constitutional
history as “a quest for . . . workable democratic government protective of individual personal
liberty.”97 Reflecting his pragmatic attitude toward legal questions, Justice Breyer emphasizes
that “institutions and methods of interpretation must be designed in a way such that this form of
liberty is sustainable over time and capable of translating the people’s will into sound policies.”98
Judge Jackson has resolved relatively few cases involving open constitutional questions, offering
somewhat limited insight into what mode of constitutional interpretation she might follow in
future cases. During her D.C. Circuit confirmation hearing, the nominee suggested she would
approach constitutional interpretation by looking to the text and its original meaning, following
the Supreme Court’s lead.99 Likewise, during her earlier district court confirmation, she stated she
does not agree with a “living Constitution” approach, saying instead that, while “courts must
apply established constitutional principles to new circumstances, . . . the meaning of the
Constitution itself does not evolve.”100
The constitutional issues Judge Jackson confronted as a district court judge largely involved
relatively settled precedent from the Supreme Court or lower courts, and did not require her to
engage in novel constitutional analysis.101 Nonetheless, some of those cases, including the few
that required a more rigorous analysis, are discussed in more detail later in this report.102
Statutory Interpretation
A judge’s approach to statutory interpretation can provide significant insight into her
jurisprudence, and examples of cases requiring statutory interpretation are much more common in
the district court than constitutional cases. Many judges today lean towards one of two schools of
statutory interpretation.103 Textualism focuses more on a statute’s text, asking how a reasonable
person might understand the law’s words,104 while purposivism places more emphasis on a
statute’s purpose, asking what problem Congress was trying to solve and how the law achieves
that goal.105

Constitutional Analysis: Original Meaning (Part 3), by Brandon J. Murrill.
96 See, e.g., Richard A. Posner, What Has Pragmatism to Offer Law?, 63 S. CAL. L. REV. 1653, 1657 (1990); Free
Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 514 (Breyer, J., dissenting); see generally CRS Legal
Sidebar LSB10679, The Modes of Constitutional Analysis: Pragmatism (Part 5), by Brandon J. Murrill.
97 STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 34 (2008).
98 Id. at 16.
99 D.C. Circuit Confirmation Hearing, supra note 88.
100 Senate Judiciary Attachments, supra note 74 (responses to questions by Senator Tom Coburn).
101 See, e.g., Las Ams. Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 19 (D.D.C. 2020) (rejecting due process
challenge to agency policy under “binding” Supreme Court precedent); see generally CRS Legal Sidebar LSB10678,
The Modes of Constitutional Analysis: Judicial Precedent (Part 4), by Brandon J. Murrill.
102 See “Civil Rights and Qualified Immunity,” “Rights of the Accused,” “First Amendment,” and “Separation of
Powers” infra.
103 See generally, e.g., CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C.
Brannon, “Major Theories of Statutory Interpretation.”
104 See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in
Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 22 (Amy
Gutmann ed., 1997).
105 See, e.g., HENRY M. HART JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND
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Judge Jackson may differ from Judge Breyer, whom she has been nominated to replace, in her
approach to statutory interpretation. Justice Breyer employs a purposivist approach, following the
“Legal Process” school of thought that approached statutory interpretation with the assumption
that Congress is “made up of reasonable persons pursuing reasonable purposes reasonably.”106
Accordingly, Justice Breyer approaches difficult statutory questions by looking to Congress’s
purpose and “the practical consequences that are likely to follow from Congress’ chosen scheme,”
and seeking a construction that serves that purpose.107
Judge Jackson has written that “the North Star of any exercise of statutory interpretation is the
intent of Congress, as expressed in the words it uses.”108 Interpreting statutes as a district court
judge, Judge Jackson was often bound by prior Supreme Court and D.C. Circuit cases,109 but at
times also engaged in original statutory construction. Like most modern judges, Judge Jackson
has stressed the primacy of the law’s text and structure in statutory interpretation.110 A number of
her opinions rely on a statute’s “plain language”111 and engage in close readings that, for
example, stress Congress’s use of a specific verb tense112 or a singular pronoun.113 She has also
looked to established canons of construction,114 such as the principle that no statutory language
should be rendered superfluous.115

APPLICATION OF LAW 1148 (William N. Eskridge Jr. & Phillip P. Frickey eds., 1994).
106 John F. Manning, Chevron and the Reasonable Legislator, 128 HARV. L. REV. 457, 457 (2014) (quoting Hart &
Sacks, supra note 105, at 1378); see also Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes,
65 S. CAL. L. REV. 845, 853–54 (1992) (“Sometimes [a court] can simply look to the surrounding language in the
statute or to the entire statutory scheme and ask, ‘Given this statutory background, what would a reasonable human
being intend this specific language to accomplish?’”).
107 United States v. Arthrex, Inc., 141 S. Ct. 1970, 1988 (2021) (Breyer, J., concurring in the judgment in part and
dissenting in part).
108 Am. Meat Inst. v. U.S. Dep’t of Agric., 968 F. Supp. 2d 38, 56 (D.D.C. 2013), aff’d, 746 F.3d 1065 (D.C. Cir.
2014).
109 See, e.g., Campaign for Accountability v. U.S. Dep’t of Justice, 278 F. Supp. 3d 303, 321 (D.D.C. 2017) (applying
Supreme Court and D.C. Circuit precedent to resolve a dispute over the scope of FOIA), aff’d sub nom. Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep't of Just., 846 F.3d 1235 (D.C. Cir. 2017).
110 See, e.g., Am. Meat Inst., 968 F. Supp. 2d at 62 (stating that “even if Plaintiffs are correct that Congress secretly
wished to preserve commingling and infused [a specific provision] with that intention, the most plausible reading of
what Congress actually wrote is that the statute” does not expressly address commingling); id. at 63–64 (looking to
statutory context and rejecting a reading that contravened an earlier requirement, and adopting a reading that was
consistent with subsequent provisions). See also, e.g., AFL-CIO v. NLRB, 466 F. Supp. 3d 68, 84 (D.D.C. 2020)
(concluding it was unlikely “that Congress intended to place” a provision “in the heart of a section solely governing
unfair labor practices, and yet somehow meant for this particular provision alone to apply more broadly”).
111 E.g., Depomed, Inc. v. U.S. Dep’t of Health & Human Servs., 66 F. Supp. 3d 217, 233 (D.D.C. 2014) (concluding
“the plain language” of the relevant statute “means precisely what it says” and was unambiguous). See also, e.g., Equal
Rights Ctr. v. Uber Techs., Inc., 525 F. Supp. 3d 62, 83–84 (D.D.C. 2021) (looking to the dictionary definition of
“provide” to conclude that Uber plausibly “provided” a public transportation service within the Americans with
Disabilities Act’s meaning).
112 Kiakombua v. Wolf, 498 F. Supp. 3d 1, 41 (D.D.C. 2021) (holding that an agency’s “requirement of certainty, as
conveyed by the use of the present tense ‘is,’ is in tension with Congress’s deliberate employment of the verb phrase
‘could’—for the latter conveys . . . a possibility, rather than certainty”); see also AFL-CIO, 471 F. Supp. 3d at 244
(holding that use of “taken” in a statute “speaks solely to actions that have been ‘taken’” and not necessarily actions
that individuals “have not yet taken (but will take)”).
113 Am. Meat Inst., 968 F. Supp. 2d at 60–61 (noting that a statute “expressly refers to . . . ‘an’ animal or ‘the animal,’”
suggesting that Congress did not address the issue of commingling cuts derived from multiple animals).
114 See generally, e.g., CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C.
Brannon, “Canons of Construction.”
115 Watervale Marine Co. v. U.S. Dep’t of Homeland Sec., 55 F. Supp. 3d 124, 145 (D.D.C. 2014), aff’d on other
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When the statutory text does not provide a complete or definitive answer, however, the nominee
has also used the tools of purposive interpretation, asking what outcome a “rational legislature”
would have sought116 and whether a particular interpretation serves Congress’s purpose.117
Accordingly, in one case, she enjoined portions of executive orders she decided reflected “a
decidedly different policy choice” from the one Congress expressly adopted.118 Further, like
Justice Breyer,119 Judge Jackson has sometimes looked to legislative history to help determine the
meaning of statutory language.120
Two relatively narrow and complex statutory interpretation disputes demonstrate Judge Jackson’s
holistic approach to statutory interpretation. The first, R.J. Reynolds Tobacco Co. v. United States
Department of Agriculture, involved a statutory provision requiring tobacco manufacturers and
importers to make subsidy payments to tobacco growers.121 The statute required the Commodity
Credit Corporation (CCC) to base those payments on all “relevant information,” and the legal
question was whether that phrase allowed the CCC to consider only information that was “precise
and verified by another federal agency.”122 Judge Jackson agreed that it did.123 She looked first to
the statute’s “plain text,” citing canons of construction and a legal dictionary to hold that the term
“other relevant information” should include only information that was similar to the categories of
agency-substantiated information specifically enumerated earlier in the statute.124 The nominee
then concluded that the law’s purpose confirmed this textual interpretation, noting that Congress

grounds, 807 F.3d 325 (D.C. Cir. 2015) (rejecting a reading of a statute that would render one of its words superfluous
to another provision). See also, e.g., Osvatics v. Lyft, Inc., 535 F. Supp. 3d 1, 13 (D.D.C. 2021) (applying the ejusdem
generis canon, which counsels that a general term following more specific terms should be construed to cover only
concepts similar to the more specific terms, to interpret a statute’s residual clause); Clarian Health W., LLC v. Burwell,
206 F. Supp. 3d 393, 414–15 (D.D.C. 2016) (applying the expressio unius canon, which suggests that Congress’s
expression of one thing implies the exclusion of other associated items, to hold that a law did not incorporate a certain
exemption, where it expressly included other related exemptions taken from another statute), rev’d, 878 F.3d 346 (D.C.
Cir. 2017).
116 Am. Meat Inst., 968 F. Supp. 2d at 55 n.18 (stating that “the fact that a rational legislature probably would not have
wanted” an outcome that the plaintiffs claimed would follow from a particular statutory construction “merely
underscore[d] the likelihood” that the particular provision was “not really addressing” the issue).
117 See, e.g., Kiakombua, 498 F. Supp. 3d at 45 (stating that deciding whether an agency’s interpretation of a law
governing credible fear interviews was reasonable “necessarily requires the Court to focus on the purpose of credible
fear interviews as Congress envisioned them”).
118 Am. Fed’n of Gov’t Emps. v. Trump, 318 F. Supp. 3d 370, 381 (D.D.C. 2018), rev’d and vacated, 929 F.3d 748
(D.C. Cir. 2019).
119 See, e.g., Breyer, supra note 106, at 847 (defending the “careful use” of legislative history).
120 See, e.g., Wye Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 702 (D.C. Cir. 2022) (“To the extent that one might
think that the second clause is ambiguous . . . , the legislative history . . . leaves no doubt.”); Kiakombua, 498 F. Supp.
3d at 46 (stating a law’s legislative history “provides one lens through which to view Congress’ intent”); A Love of
Food I, LLC v. Maoz Vegetarian USA, Inc., 70 F. Supp. 3d 376, 408 (D.D.C. 2014) (“Finding the case law less than
illuminating, this Court reviewed the [Act’s] legislative history and finds that it sheds some light on the meaning and
purpose of the statutory language . . . .”). Cf., e.g., Ctr. for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218,
238–39 (D.D.C. 2019) (“Given the abundantly clear and specific language that Congress used . . . , it is not necessary
for the Court to delve into the . . . legislative history to determine Congress’s intent.”), cert. denied, 141 S. Ct. 158
(2020); Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420, 436 (D.D.C. 2016) (similar), rev’d,
878 F.3d 346 (D.C. Cir. 2017); Note, Prevention Versus Punishment: Toward a Principled Distinction in the Restraint
of Released Sex Offenders, 109 HARV. L. REV. 1711, 1720 (1996) (expressing concern about the potential
manipulability or indeterminacy of legislative history).
121 130 F. Supp. 3d 356, 358 (D.D.C. 2015).
122 Id. at 370.
123 Id. at 371.
124 Id. at 373.
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had not given the CCC the authority to engage in independent substantiation, and it would
“make[] eminent sense” for Congress to intend the agency “to rely only on information that other
federal law enforcement agencies . . . have already verified.”125
The second example is the first of Judge Jackson’s several opinions in Alliance of Artists &
Recording Cos. v. General Motors.126 This case involved the Audio Home Recording Act, a
federal law requiring manufacturers and distributors of “digital audio recording devices” to
implement certain technologies and pay per-device royalties.127 At issue in the case was whether
in-vehicle systems produced “digital audio copied recordings,” a question that itself turned on
whether a digital audio copied recording also had to be a “digital music recording.”128 The
defendant car manufacturers argued that their in-vehicle systems were not covered because they
did not generate output that met the statutory definition of “digital music recording.”129
Judge Jackson agreed with the defendants, pointing to language in the statutory definition and
other sections of the law that seemed to assume that digital audio copied recordings were
themselves digital music recordings.130 For example, she noted that a remedial provision
authorized courts to order the destruction of any noncompliant digital audio recording device or
digital musical recordings, without specifically referencing digital audio copied recordings.131 In
her view, it made “little sense that Congress would only authorize a court to seize or destroy the
[device] and its input (the [digital music recordings]), while leaving the illegal copies . . .
unscathed.”132 Instead, the more natural reading was that a digital audio copied recording was a
type of digital music recording that could also be destroyed under the remedial provision.133 The
nominee also said this reading was consistent with the law’s purpose; the legislative history
confirmed that the text was “the carefully calibrated result of extensive legislative
negotiations.”134 After further proceedings in the case, Judge Jackson granted summary judgment
in favor of the auto manufacturers.135 On appeal, the D.C. Circuit affirmed the grant of summary
judgment, citing the nominee’s analysis favorably in several instances.136
Stare Decisis
In addition to general theories about constitutional and statutory interpretation, past Supreme
Court decisions play an important role in a judge’s legal reasoning. District courts and courts of
appeals are bound by the controlling decisions of the superior federal courts: the appeals courts
must follow Supreme Court precedent, and district courts must follow decisions of both the
Supreme Court and the U.S. Court of Appeals for the circuit in which they sit.137 The Supreme

125 Id. at 373–74.
126 All. of Artists & Recording Cos., Inc. v. Gen. Motors Co., 162 F. Supp. 3d 8 (D.D.C. 2016).
127 Id. at 8–9.
128 Id. at 17.
129 Id.
130 Id. at 18–19.
131 Id. at 19.
132 Id.
133 Id.
134 Id.
135 All. of Artists & Recording Cos., Inc. v. Gen. Motors Co., 306 F. Supp. 3d 422, 425 (D.D.C. 2018).
136 All. of Artists & Recording Cos., Inc. v. DENSO Int’l Am., Inc., 947 F.3d 849, 862, 865, 867 (D.C. Cir. 2020).
137 See, e.g., Patterson v. United States, 999 F. Supp. 2d 300, 310 (D.D.C. 2013) (quoting Owens-Ill., Inc. v. Aetna Cas.
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Court, by contrast, is not so bound. Instead, the Justices generally follow prior decisions of the
Supreme Court under the non-binding doctrine of stare decisis. The Court has explained that stare
decisis is, “in English, the idea that today’s Court should stand by yesterday’s decisions.”138 The
Court generally adheres to its prior decisions absent “a ‘special justification’—over and above the
belief ‘that the precedent was wrongly decided.’”139 But the Court has also emphasized that stare
decisis is not “an inexorable command.”140 The principle is at its weakest in constitutional cases,
because Congress cannot “abrogate” an erroneous constitutional interpretation as it could a
decision involving a statute.141
The doctrine of stare decisis, and a judicial nominee’s views on the doctrine, are potentially
relevant across all areas of the Court’s jurisprudence. For example, a nominee’s prior statements
about stare decisis (if any) could illuminate how the nominee would approach prior decisions that
she considers to be wrongly decided and whether the nominee believes the strength of precedent
might be different for statutory and constitutional cases.142
Judge Jackson’s prior decisions and public statements offer limited guidance on these questions,
but generally reflect the thorough consideration of applicable precedent.143 One of her district
court decisions includes significant discussion of stare decisis. In Committee on the Judiciary v.
McGahn, Judge Jackson looked to a prior D.C. district court decision that she viewed as
“compelling (albeit, admittedly, not controlling),” and she applied that precedent in a manner she
deemed “consistent with stare decisis principles” to help resolve a high-stakes separation of
powers dispute.144 Quoting the Supreme Court, she recognized that stare decisis “promotes the

& Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C. 1984)).
138 Kimble v. Marvel Ent. LLC, 576 U.S. 446, 455 (2015).
139 Id. at 455–56 (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).
140 See Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2478 (2018) (quoting, inter alia, Pearson v. Callahan, 555 U.S.
223, 233 (2009); Lawrence v. Texas, 539 U.S. 558, 577 (2003); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).
141 See Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (plurality opinion) (reasoning that the precedent under
consideration “involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that
field, where our mistakes cannot be corrected by Congress”).
142 In past hearings, Senators have asked nominees, including Judge Jackson, whether there are particular cases that
they believe were wrongly decided. Judge Jackson has generally followed the practice established by other nominees of
declining to answer such questions, except with respect to the seminal cases of Marbury v. Madison, Brown v. Board of
Education, and Loving v. Virginia. See Senate Judiciary Attachments, supra note 74, at 460 (responses to questions
from Senator Ben Sasse). Judge Jackson’s decision in Maryland v. U.S. Department of Education, No. 17-cv-2139,
2020 WL 7773390 (D.D.C. Dec. 29, 2020) shows the nominee’s adherence to binding authority coupled with a
willingness to express her concerns with such precedent. In Maryland, the D.C. Circuit vacated a district court decision
by Judge Jackson and remanded the case with instructions to dismiss as moot. See id. at *1 (citing Maryland v. U.S.
Dep’t of Educ., No. 20-5268, 2020 WL 7773390 (D.C. Cir. Dec. 22, 2020)). Judge Jackson heeded the appellate court’s
directions on remand and dismissed the case as moot, but wrote an opinion objecting to the vacatur. See id. at *5–7; see
also “Civil Procedure and Jurisdiction” infra.
143 See, e.g., Senate Judiciary Attachments, supra note 74, at 454 (responses to questions from Senator Mike Lee) (“It is
the duty of a judge to apply Supreme Court and circuit precedent that governs the resolution of the issue at hand
faithfully, regardless of that judge’s personal opinion about either the matter at issue or the correctness of the holdings
in those cases. However, if a particular Supreme Court or D.C. Circuit precedent is not applicable to an issue before
me, I would look for analogous precedents to glean principles that could be applied to the circumstances of the case at
hand. It might also be necessary to distinguish the instant circumstances from other seemingly applicable precedents,
and to explain why the principles articulated in such other cases do not control the outcome of the case.”).
144 Comm. on Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 173 (D.D.C. 2019), rev’d,
973 F.3d 121 (D.C. Cir. 2020), rev’d en banc, 968 F.3d 755 (D.C. Cir. 2020). For additional discussion of the McGahn
decision, including its subsequent history in the district court and court of appeals, see “Standing” and “Separation of
Powers” infra.
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evenhanded, predictable, and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”145
She further opined that the doctrine “performs a limiting function” that supports the constitutional
separation of powers, because “deciding a legal issue anew each time that same question is
presented, without any reference to what has been done before, nudges a court outside of its
established domain of ‘say[ing] what the law is[,]’ and into the realm of legislating what the law
should be.”146
Two additional decisions by Judge Jackson contain more limited discussion of stare decisis. In
Patterson v. United States, the nominee held that the U.S. Park Police who arrested an individual
for using profanity in a public park violated clearly established law under the First and Fourth
Amendments.147 Rejecting the government’s argument that the plaintiff could not pursue a First
Amendment claim, Judge Jackson explained, “the D.C. Circuit has expressly recognized that
there is a First Amendment right not to be arrested in retaliation for one’s speech where there is
otherwise no probable cause for the arrest, . . . and this Court cannot ignore the D.C. Circuit’s
binding precedent.”148 In Morgan v. U.S. Parole Commission, Judge Jackson dismissed a
prisoner’s civil suit in part on the grounds of res judicata—the legal doctrine that “bars
relitigation of claims or issues that were or could have been litigated in a prior action.”149 Holding
that prior litigation in West Virginia federal court barred the plaintiff’s claim under the Ex Post
Facto Clause, Judge Jackson observed, “this Court sees nothing inherently unfair or untoward
about the application of past precedent to address a constitutional question; after all, adherence to
precedent is venerated practice of the state and federal courts.”150
Judge Jackson also made statements on the subject of precedent in response to questioning during
her confirmation hearings to the district court and the D.C. Circuit. For instance, when asked
about stare decisis during her district court confirmation, she responded that the doctrine “is a
bedrock legal principle that ensures consistency and impartiality of judgments. All judges are
obligated to follow stare decisis, and the doctrine is particularly strong as applied to federal
district court judges.”151 When asked during her confirmation to the D.C. Circuit how she would
define “judicial activism,” she responded in part:
While [a] judge may acknowledge the force of contrary positions regarding the legal issues
in dispute, the result that a judge reaches must be consistent with the requirements of the
law, as set forth in the binding precedents of the Circuit and the Supreme Court. Judicial
activism occurs when a judge who is unwilling or unable to rule as the law requires and
instead resolves cases consistent with his or her personal views.152

145 McGahn, 415 F. Supp. 3d at 173 (quoting Payne v. Tennessee, 501 U.S. 808, 827–28 (1991)).
146 Id. at 165–66 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
147 999 F. Supp. 2d 300, 315 (D.D.C. 2013). For additional discussion of Patterson, see “Civil Rights and Qualified
Immunity” and “First Amendment” infra.
148 Patterson,. 999 F. Supp. 2d at 310 (internal citation omitted). See also id. at 310–11 (quoting Owens-Ill., Inc. v.
Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C. 1984) (“The doctrine of stare decisis compels district courts
to adhere to a decision of the Court of Appeals of their Circuit until such time as the Court of Appeals or the Supreme
Court of the United States sees fit to overrule the decision.”)).
149 304 F. Supp. 3d 240, 246 (D.D.C. 2016).
150 Id. at 251.
151 Senate Judiciary Attachments, supra note 74, at 488 (responses to questions from Senator Amy Klobuchar).
152 Id. at 413 (responses to questions from Senator Chuck Grassley). See also id. at 13 (“A circuit judge might properly
encourage the Supreme Court to reconsider holdings that are confusing or otherwise problematic in application, by
pointing out a problem with the interpretation or application of a precedent, in either a concurrence or a dissent. But it
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Addressing the question of when it is appropriate for a federal circuit court to overrule its own
precedents, she explained: “D.C. Circuit precedents make clear that it is appropriate for that court,
sitting en banc, to overturn its own precedents only in a narrow set of circumstances,” including
when required by intervening developments in the law, when a prior holding on an important
question of law was fundamentally flawed, or “where the precedent may be a positive detriment
to coherence and consistency in the law, either because of inherent confusion created by an
unworkable decision, or because the decision poses a direct obstacle to the realization of
important objectives embodied in other laws.”153
Selected Topics
The remaining sections of this report each focus on an issue that appears in Judge Jackson’s
record as a judge or public official. That focus necessarily omits some topics that may be of
interest to Congress if Judge Jackson’s professional background and judicial experience do not
provide an adequate basis for analysis. For example, CRS has identified no decisions by Judge
Jackson that address the issue of reproductive rights. This report also does not focus on certain
topics, such as local D.C. law or private disputes under contract and tort doctrines, which may be
less relevant to Congress as it considers a Supreme Court nominee.
Administrative Law
The D.C. federal courts have an “outsized role” in administrative law,154 with cases involving
executive branch authority comprising a significant portion of their dockets.155 Judge Jackson’s
district court opinions reflect that focus. A number of her opinions have considered the
application of the Administrative Procedure Act (APA), which generally governs judicial review
of agency action,156 and various judicially created doctrines that apply to review of agency
actions.157 This report’s discussion focuses primarily on issues relating to justiciability and
substantive review of agency decisions, but Judge Jackson has faced a wide variety of
administrative law issues, including cases challenging agency procedures.158 She has also

would not be proper for a circuit court judge to depart from Supreme Court precedent when ruling in a case.”).
153 Id. at 462 (responses to questions from Senator Ben Sasse) (quoting United States v. Burwell, 690 F.3d 500, 504
(D.C. Cir. 2012)) (internal quotations omitted).
154 Aaron L. Nielson, D.C. Circuit Review – Reviewed: The Second Most Important Court?, YALE J. REG.: NOTICE &
COMMENT (Sept. 4, 2015), https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-the-second-most-important-court-
by-aaron-nielson/; see “The Unique Nature of the District of D.C.” supra.
155 See Roberts, supra note 78, at 376–77; Brett M. Kavanaugh, The Courts and the Administrative State, 64 CASE W.
RES. L. REV. 711, 715 (2014) ("[T]he bread and butter of [the D.C. Circuit docket is its] . . . administrative law
docket.).
156 5 U.S.C. §§ 701–706; see generally CRS Report R44699, An Introduction to Judicial Review of Federal Agency
Action, by Jared P. Cole.
157 See generally CRS Report R44954, Chevron Deference: A Primer, by Valerie C. Brannon and Jared P. Cole.
158 See, e.g., AFL-CIO v. NLRB, 466 F. Supp. 3d 68, 92 (D.D.C. 2020) (holding that an agency rule should have gone
through notice-and-comment rulemaking because it was not merely a procedural rule); Clarian Health W., LLC v.
Burwell, 206 F. Supp. 3d 393, 397 (D.D.C. 2016) (holding that agency statements in an instruction manual were
substantive rules that should have gone through notice-and-comment rulemaking), rev’d, 878 F.3d 346 (D.C. Cir.
2017).
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resolved cases involving broader oversight issues159 and a large number of disputes involving the
interpretation and application of the Freedom of Information Act.160
Justice Breyer has been generally deferential to federal agencies’ exercises of their statutorily
delegated authority.161 Some legal commentators have suggested Judge Jackson’s record is less
deferential due to her willingness both to extend judicial review to agency actions and to enforce
procedural and substantive limitations on agency authority.162
Justiciability and Agency Discretion
A threshold question in many cases challenging agency action is whether Congress has chosen to
delegate authority to an agency in a way that is effectively unreviewable in court.163 The APA
does not apply to, and thus does not provide a cause of action for judicial review of, “agency
action” that “is committed to agency discretion by law.”164 However, as the Supreme Court has
stated, the APA “embodies the basic presumption of judicial review to one ‘suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the meaning
of a relevant statute.’”165 The Supreme Court has therefore explained in recent years that it reads
the APA’s statutory exception “quite narrowly,” so that agency actions are reviewable except in
the “rare” case of administrative decisions that are “traditionally left” to agency discretion.166 This
is true even when an agency acts pursuant to a “broad” grant of authority that entails significant
discretion.167

159 See “Separation of Powers” infra.
160 For example, Judge Jackson issued two opinions rejecting claims that the Department of Justice’s Office of Legal
Counsel’s written legal opinions were either all covered by or all exempt from the reading room provisions of the
Freedom of Information Act (FOIA). See Campaign for Accountability v. U.S. Dep’t of Just., 486 F. Supp. 3d 424, 426
(D.D.C. 2020); Campaign for Accountability v. U.S. Dep’t of Just., 278 F. Supp. 3d 303, 305–06 (D.D.C. 2017). See
also, e.g., Brick v. U.S. Dep’t of Just., 293 F. Supp. 3d 9, 10, 12 (D.D.C. 2017) (noting an agency’s repeated failures to
submit sufficient information to allow meaningful judicial review of its FOIA redactions, and stating that if the agency
failed again, the court would require production of the documents); Sheridan v. U.S. Off. of Pers. Mgmt., 278 F. Supp.
3d 11, 22–23 (D.D.C. 2017) (noting, but avoiding resolving, open legal question relating to the application of the FOIA
exemption for records compiled for law enforcement purposes).
161 CRS Legal Sidebar LSB10691, Justice Breyer Retires: Initial Considerations, by Valerie C. Brannon et al.
162 See Jimmy Hoover, Ketanji Brown Jackson No ‘Rubber Stamp’ For Gov’t Agencies, LAW360 (Mar. 3, 2022),
https://www.law360.com/publicpolicy/articles/1470007/ketanji-brown-jackson-no-rubber-stamp-for-gov-t-
agencies?nl_pk=77a8fbcd-0ce9-4d0f-a0ac-3a4c7fd100a8.
163 See generally CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
A somewhat related issue is administrative exhaustion: a judicially enforced doctrine requiring parties to exhaust any
available administrative procedures provided by statute or regulation before they may challenge an agency decision in
court. See, e.g., Mackinac Tribe v. Jewell, 87 F. Supp. 3d 127, 130–31 (D.D.C. 2015) (dismissing lawsuit seeking tribal
recognition because the Mackinac Tribe had not exhausted administrative remedies), aff’d, 829 F.3d 754 (D.C. Cir.
2016).
164 5 U.S.C. § 701(a)(2). The APA also does not apply “to the extent that statutes preclude judicial review.” Id.
§ 701(a)(1).
165 Abbott Lab’ys v. Gardner, 387 U.S. 136, 140 (1967) (quoting 5 U.S.C. § 702).
166 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (internal quotation marks
omitted) (concluding that the Deferred Action for Childhood Arrivals (DACA) program was more than a non-
enforcement policy of the type traditionally held to be committed to agency discretion by law and that rescission of
DACA was therefore subject to APA review); see also, e.g., Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S.
Ct. 361, 370–72 (2018) (explaining that the Court has found an issue to be committed to agency discretion in “few
cases”); CRS Legal Sidebar LSB10536, Judicial Review of Actions Legally Committed to an Agency’s Discretion, by
Daniel J. Sheffner.
167 Dep’t of Com. v. New York, 139 S. Ct. 2551, 2568 (2019) (stating that, though the Census Act “confers broad
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Judge Jackson’s opinions considering whether an action is committed to agency discretion by
law, and therefore unreviewable in court, reflect a case-by-case assessment of the APA’s
applicability. When Department of Health and Human Services (HHS) grantees challenged
HHS’s termination of their grants, Judge Jackson recognized that an agency’s decision of how
best to use appropriated funds can be an example of an action that is committed to agency
discretion by law.168 However, HHS had promulgated regulations limiting its discretion to
terminate grants, providing “meaningful standards” on which to base judicial review under the
APA.169 She went on to hold that HHS had not provided the “reasoned analysis” of its decision
that the APA requires.170
In another case, the nominee held that though a statute gave the Secretary of the Department of
Homeland Security (DHS) the “sole and unreviewable discretion” to designate categories of
aliens as subject to expedited removal,171 this provision did not grant “sole discretion to determine
the manner in which that decision will be made.”172 According to Judge Jackson, this meant that
although they could not challenge which categories of persons DHS had chosen to designate as
subject to expedited removal, plaintiffs could maintain claims that DHS’s designation violated the
APA’s procedural requirements.173 On appeal, the D.C. Circuit rejected that conclusion, holding
instead that Congress’s broad delegation “confine[d] the judgment to the Secretary’s hands and,
in so doing, inescapably [sought] to withdraw the decision from APA review”—not only barring
review of the decision’s substance, but also making APA procedural requirements inapplicable to
such cases.174
The nominee has also concluded that some cases presented the “rare” instance of an action that
was committed to an agency’s discretion by law. In a case challenging the Department of the
Interior’s refusal to exclude an area from a critical habitat designation under the Endangered
Species Act, Judge Jackson reasoned that the statute did not “‘provide a standard by which to
judge’” the exclusion decision.175 Examining a statute providing that the U.S. Coast Guard “may”
grant departure clearance to a vessel suspected of violating certain environmental laws “upon the
filing of a bond or other surety satisfactory to the Secretary,”176 Judge Jackson likewise found no
APA cause of action for plaintiffs challenging the decision to impose additional, nonfinancial

authority on the Secretary” for census matters, the Act did not provide unbounded discretion, and the taking of the
census was not an area “traditionally committed to agency discretion”); see also Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 410 (1971) (explaining that an action is committed to agency discretion where relevant statutes
are “drawn in such broad terms that in a given case there is no law to apply” (internal quotation marks omitted)).
168 Pol’y & Rsch., LLC v. U.S. Dep’t of Health & Hum. Servs., 313 F. Supp. 3d 62, 76 (D.D.C. 2018) (stating that such
funding decisions are “presumptively unreviewable”).
169 Id. at 83.
170 Id. at 84.
171 See “Immigration” infra.
172 Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1, 39 (D.D.C. 2019), rev’d and remanded sub nom. Make the
Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020).
173 Id. at 43.
174 See Make The Rd. N.Y., 962 F.3d at 632, 634.
175 Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp. 3d 35, 64 (D.D.C. 2015) (quoting Cape Hatteras
Access Pres. All. v. U.S. Dep’t of the Interior, 731 F. Supp. 2d 15, 29 (D.D.C. 2010)). At the time, Judge Jackson’s
conclusion was consistent with decisions reached in another judicial circuit. See Bear Valley Mut. Water Co. v. Jewell,
790 F.3d 977, 990 (9th Cir. 2015). In 2018, however, the Supreme Court reached the opposite conclusion. See
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370–72 (2018).
176 33 U.S.C. § 1908(e).
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conditions for departure clearance.177 The nominee concluded the statute’s text and structure gave
her no standards by which to assess the clearance decision, because even when the vessel owner
posted a satisfactory “bond or other surety,” the agency was not required to grant clearance.178 On
appeal, the D.C. Circuit disagreed with Judge Jackson, holding that the APA’s committed-to-
agency discretion exception did not foreclose a claim premised on the theory that nonfinancial
conditions exceeded the Coast Guard’s authority.179
Considering a distinct but related issue, Judge Jackson held in Center for Biological Diversity v.
Zinke that the APA did not authorize relief in a lawsuit seeking to compel the Department of the
Interior to complete an assessment of its environmental review policies.180 She noted that,
although the APA authorizes courts to “compel agency action unlawfully withheld or
unreasonably delayed,”181 Supreme Court precedent allowed judicial review only of “a discrete
agency action that it is required to take.”182 The nominee found that the claim before her did not
meet this standard, holding that while the governing statute required agencies to revise their
environmental review policies as necessary, it did not prescribe “any discrete agency action,” and
set “no fixed end point.”183 Discussing the respective roles of courts and administrative agencies,
Judge Jackson said in Center for Biological Diversity that “courts do not, and cannot, police
agency deliberations as a general matter.”184 In her view, “meddling in an agency’s tentative,
internal deliberations absent a clear-cut legal mandate to do so risks upsetting the balance
between the judicial and administrative functions that Congress struck in the APA.”185
Agency Statutory Interpretations and Chevron Deference
To carry out the tasks delegated to them by Congress, federal agencies must interpret the statutes
authorizing their actions. Courts reviewing agency actions sometimes give special deference to
agencies’ interpretations of the statutes they administer, rather than adopting a different judicial
interpretation. Specifically, under a framework outlined by the Supreme Court in Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, courts engage in a two-step analysis to determine
whether to defer to an agency interpretation in an area where Congress has delegated
administrative authority to the agency.186 First, courts ask whether the statute is clear, in which
case “the court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.”187 This first step requires the court to engage in an ordinary statutory-interpretation

177 Watervale Marine Co. v. U.S. Dep’t of Homeland Sec., 55 F. Supp. 3d 124, 133 (D.D.C. 2014), aff’d on other
grounds, 807 F.3d 325 (D.C. Cir. 2015).
178 Watervale Marine Co., 55 F. Supp. 3d at 142 (stating even if, as plaintiffs contended, the statute authorized the
imposition of financial conditions only, the “Achilles heel” of plaintiffs’ reviewability argument was that the “statute
nevertheless appears to permit the Coast Guard to deny departure clearance altogether, or to require some additional
conditions before making the clearance decision”).
179 Watervale Marine Co., 807 F.3d at 330.
180 260 F. Supp. 3d 11, 16 (D.D.C. 2017).
181 5 U.S.C. § 706(1).
182 Ctr. for Biological Diversity, 260 F. Supp. 3d at 20 (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 64
(2004)).
183 Id. at 27.
184 Id. at 29.
185 Id.
186 467 U.S. 837, 842–43 (1984).
187 Id. at 842.
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inquiry, using the “traditional tools of statutory construction.”188 If the statute is ambiguous,
however, courts proceed to step two, in which they will defer to the agency’s interpretation so
long as it is reasonable.189 If a court reaches the second step, Chevron instructs it to defer even if
the court does not believe the agency’s interpretation is the best construction of the statute190—it
merely needs to be “permissible.”191
Chevron deference is premised on the idea that when Congress delegates authority to agencies, it
intends for agencies to fill in any “gap[s]” in the statute through reasonable interpretation.192 The
Supreme Court instructed in Chevron that judges should leave these open policy choices to the
political branches, which are more politically accountable and have greater institutional
competence to weigh policy considerations.193
A number of jurists, including a few sitting Supreme Court Justices, have criticized Chevron
deference and the presumption that Congress intended agencies, rather than courts, to resolve
statutory ambiguity.194 Accordingly, some judges have arguably narrowed the application of
Chevron deference over the past decade or so, in part by finding more readily that a statute is
unambiguous at Chevron’s first step.195 In addition, the Court has recently considered cases
raising the “major questions doctrine,” which can also narrow the circumstances in which
Chevron applies by demanding a clear statement from Congress when it delegates to agencies the
authority to resolve questions of major economic and political significance.196
As a district court judge, Judge Jackson was bound by governing precedent to apply Chevron’s
two-step framework to evaluate agency interpretations of statutes they administer. Accordingly, in
a number of cases, the nominee concluded that a statute failed to address the precise question
before the court and deferred to the agency’s reasonable construction of that statute.197 For
example, in American Meat Institute v. U.S. Department of Agriculture (USDA), a case discussed
later in this report,198 the nominee rejected a challenge to an agency regulation requiring
“country-of-origin labeling” for certain commodities.199 The plaintiffs argued that the regulation
went beyond the governing statute by requiring additional information and by banning the
commingling of animal cuts from different countries of origin.200 On both issues, Judge Jackson

188 Id. at 843 n.9.
189 Id. at 843.
190 See, e.g., Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009).
191 Chevron U.S.A., Inc., 467 U.S. at 843.
192 Id. at 843–44.
193 Id. at 865–66.
194 See, e.g., CRS Legal Sidebar LSB10204, Deference and its Discontents: Will the Supreme Court Overrule
Chevron?, by Valerie C. Brannon and Jared P. Cole.
195 See id.
196 See id.; see also, e.g., Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 667–68 (2022) (Gorsuch, J., concurring).
197 See, e.g., Las Ams. Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 30 (D.D.C. 2020) (concluding agency
interpretation authorizing the placement of asylum seekers subject to expedited removal in Customs and Border
Protection facilities was reasonable in light of Congress’s clear intent as demonstrated in text and Supreme Court
precedent); Otsuka Pharm. Co. v. Burwell, 302 F. Supp. 3d 375, 394, 399 (D.D.C. 2016) (concluding statute governing
exclusivity periods for new drugs did not unambiguously bar agency’s reading, looking to law’s text, structure, and
legislative history, and upholding agency interpretation as reasonable), aff’d, 869 F.3d 987 (D.C. Cir. 2017).
198 See “First Amendment” infra.
199 968 F. Supp. 2d 38, 68 (D.D.C. 2013) (holding the plaintiffs were unlikely to succeed on their statutory challenges
and denying preliminary injunction), aff’d, 746 F.3d 1065 (D.C. Cir. 2014).
200 Id. at 52.
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concluded at Chevron’s first step that Congress had not expressly spoken to the precise question
and, at Chevron’s second step, held that the statutory text likely supported the agency’s
reading.201 In a couple of other cases, the nominee expressly concluded that deference was
appropriate because Congress delegated broad authority to the agency, and the agency previously
exercised that authority in such a way as to develop expertise on the debated issue—making
Chevron’s underlying presumption explicit.202
In a few cases, Judge Jackson held that agency interpretations were not entitled to deference
under the Chevron framework. In a 2014 case, for instance, she ruled that the U.S. Food and Drug
Administration acted improperly when it refused to recognize that a drug was entitled to a
marketing exclusivity period—a result that, in her view, the statute unambiguously required under
Chevron’s first step.203 More recently, in Kiakombua v. Wolf, Judge Jackson vacated a 2019 U.S.
Citizenship and Immigration Services manual governing “credible fear” determinations used by
immigration authorities to assess whether asylum claims of persons placed in expedited removal
would receive further review.204 She believed that portions of the manual were “manifestly
inconsistent with the two-stage asylum eligibility framework” established by the unambiguous
governing statute, seemingly failing Chevron’s first step, and other portions were “unreasonable
interpretations of the . . . statutory scheme,” failing Chevron’s second step.205
Review of Agency Decisions as Arbitrary or Capricious
In cases where an agency’s statutory interpretation is not subject to review under Chevron, the
APA provides standards for courts to review agency action. Notably, the APA instructs courts to
hold unlawful any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.”206 This “arbitrary and capricious” review can overlap with a
Chevron step-two analysis because both evaluate the substance of an agency’s reasoning and its
compliance with governing law.207 But it also encompasses inquiry into whether the agency’s
decision is supported by the administrative record and whether the agency has adequately
explained its reasoning.208
The scope of arbitrary-and-capricious review “is narrow,” and the court will not “substitute its
judgment for that of the agency.”209 Accordingly, for example, Judge Jackson rejected an
arbitrary-and-capricious challenge to an agency rule prescribing procedures for the election of

201 Id. at 53–68. In evaluating the second statutory issue, the nominee also noted that the law’s legislative history
“amply support[ed]” a reading concluding that Congress did not address commingling. Id. at 65.
202 See Las Ams. Immigrant Advoc. Ctr., 507 F. Supp. 3d at 31; Am. Fed’n of Gov’t Emps. v. Trump, 318 F. Supp. 3d
370, 386 (D.D.C. 2018), rev’d and vacated, 929 F.3d 748 (D.C. Cir. 2019).
203 Depomed, Inc. v. U.S. Dep’t of Health & Human Servs., 66 F. Supp. 3d 217, 233 (D.D.C. 2014).
204 498 F. Supp. 3d 1, 11 (D.D.C. 2021).
205 Id. at 38; see also id. at 43 (stating that the manifestly inconsistent portions contradicted the law’s “unambiguous
text”); id. at 44 (saying that “in Chevron . . . parlance,” the unreasonable provisions “exceeded the reasonable
boundaries of any ambiguity to be found in the statute and related regulations”).
206 5 U.S.C. § 706(2)(A).
207 See, e.g., Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011). See also, e.g., Otay Mesa Prop., L.P. v. U.S. Dep’t of the
Interior, 344 F. Supp. 3d 355, 366 (D.D.C. 2018) (“[T]his Court has determined that, even after granting the [Fish and
Wildlife Service] the deference that it is due under Chevron, the agency’s identification of the geographical area
occupied by the Riverside fairy shrimp was unreasonable and therefore arbitrary and capricious, which means that the
resulting occupied critical habitat determination violated the APA.”).
208 See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983).
209 Id. at 43.
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employee representatives for collective bargaining because she believed the agency had
sufficiently explained its reasoning and demonstrated its consideration of relevant factors.210
By contrast, Judge Jackson has concluded that an agency violates the APA’s arbitrary-and-
capricious standard when it “changes course abruptly without a well-reasoned explanation for its
decision” or acts “contrary to its own regulations.”211 In the nominee’s first opinion for the D.C.
Circuit, American Federation of Government Employees v. Federal Labor Relations Authority
(FLRA), she held that the FLRA violated the APA when it failed to sufficiently justify its decision
to raise the threshold for collective bargaining for certain federal employees.212 The nominee
described the FLRA’s statement announcing the new policy as “cursory,” finding it failed to
acknowledge or justify the agency’s departure from “thirty-five years of precedent” following a
different standard.213 Her opinion for the panel concluded that the agency did not sufficiently
explain “the purported flaws” of its prior standard.214 In her view, the FLRA’s attempted
explanations were inconsistent and lacked merit, seeming to “simply . . . demonstrate how” the
prior standard worked rather than demonstrating it was “unworkable.”215 Nor did the FLRA
sufficiently explain why the new standard was “better.”216
Business and Employment Law
While serving on the district court, Judge Jackson adjudicated numerous business-related claims,
including litigation between businesses and disputes between employers and employees. The
nominee’s written decisions in these cases largely involve motions to dismiss and motions for
summary judgment filed by employer defendants. Many of these cases were resolved in favor of
the employer, particularly those decided at summary judgment.217
Though both dismissal and summary judgment may conclude a case, their ramifications are often
different: a court may dismiss claims without prejudice and thereby allow a plaintiff to refile the
claims,218 whereas summary judgment fully and finally resolves claims.219 Judge Jackson on

210 AFL-CIO v. NLRB, 471 F. Supp. 3d 228, 234 (D.D.C. 2020).
211 Pol’y & Rsch., LLC v. U.S. Health & Hum. Servs., 313 F. Supp. 3d 62, 67 (D.D.C. 2018); see also id. at 74–75
(holding that shortening project periods for HHS grants “without explanation and in contravention of the regulations
was an arbitrary and capricious act in violation of the APA”). See also, e.g., XP Vehicles, Inc. v. Dep’t of Energy, 118
F. Supp. 3d 38, 79 (D.D.C. 2015) (allowing arbitrary-and-capricious challenge to proceed where the plaintiffs alleged
that, in evaluating a grant application, the agency “relied on impermissible considerations,” such as political
connections, “that ran counter to the evidence before it and the applicable regulations”).
212 25 F.4th 1, 2–3 (D.C. Cir. 2022).
213 Id. at 11–12.
214 Id. at 5.
215 Id. at 5–7.
216 Id. at 10.
217 See, e.g., Keister v. AARP Benefits Comm., 410 F. Supp. 3d 244 (D.D.C. 2019) (granting summary judgment for
defendant employer in disability benefits litigation based on language of release signed by employee), aff’d, 839 F.
App’x 559 (D.C. Cir. 2021); Crawford v. Johnson, 166 F. Supp. 3d 1, 9 (D.D.C. 2016), rev’d in part sub nom.
Crawford v. Duke, 867 F.3d 103 (D.C. Cir. 2017) (granting summary judgment for defendant employer in
discrimination litigation based on failure to exhaust administrative remedies); Manus v. Hayden, No. 18-1146, 2020
WL 2615539, at *1 (D.D.C. May 23, 2020) (granting summary judgment for defendant employer in discrimination
litigation because defendant did not take adverse employment action in response to employee protected activity).
218 See generally FED. R. CIV. P. 41 (describing certain dismissals as “adjudication[s] on the merits” while others act as
dismissals “without prejudice”).
219 See generally FED. R. CIV. P. 56 (describing circumstances in which summary judgment shall be granted), 54
(describing effects of judgment on a claim).
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several occasions has indicated a reluctance to dispose entirely of employee claims at the motion
to dismiss stage, preferring to allow discovery before reaching a final decision.220
The nominee’s analysis in Ross v. U.S. Capitol Police, an employment discrimination case,
provides an illustration.221 In Ross, Judge Jackson addressed a motion to dismiss that the U.S.
Capitol Police asked to be treated in the alternative as a motion for summary judgment.222 Judge
Jackson first observed that binding precedent counsels district court judges to adjudicate
summary judgment motions “after the plaintiff has been given adequate time for discovery.”223
The nominee considered that general principle to be especially important in employment
discrimination cases, where a plaintiff’s success often depends on the fact-intensive question of
whether a defendant’s proffered reasons for taking an employment action are pretextual.224 As
Judge Jackson observed, without the benefit of discovery:
it is hard to fathom that the plaintiff would be able to present any evidence related to the
employer’s reasons for the adverse employment action at all, much less evidence that
would be a sufficient basis upon which a rational jury could conclude that “the defendant
intentionally discriminated [or retaliated] against the plaintiff.”225
Based on this analysis, Judge Jackson concluded that a motion for summary judgment was
premature, ultimately denying the motion to dismiss with respect to the plaintiff’s discrimination
and retaliation claims.226
By contrast, Judge Jackson reached a different conclusion in Crawford v. Johnson.227 In that case,
DHS filed a motion to dismiss, or in the alternative for summary judgment, with respect to
employment discrimination claims brought under Title VII of the Civil Rights Act by the plaintiff,
James Crawford, based on three incidents.228 The motion turned on the legal question of whether
Crawford failed to exhaust his administrative remedies by including the three incidents in the
attachments to his formal Equal Employment Opportunity (EEO) complaint, rather than in the
complaint itself.229 Judge Jackson determined that information contained only in exhibits was not
incorporated into the complaint.230 To reach this conclusion, the nominee first looked to the
language of the statute’s exhaustion requirement, which requires that an EEO complaint “contain

220 See, e.g., Lawson v. Sessions, 271 F. Supp. 3d 119, 136 (D.D.C. 2017) (dismissing Title VII claims but denying
motion to dismiss claims under the Age Discrimination in Employment Act); Barber v. D.C. Gov’t, 394 F. Supp. 3d 49,
57 (D.D.C. 2019) (denying in part motion to dismiss employment discrimination claims); Alma v. Bowser, 159 F.
Supp. 3d 1, 3 (D.D.C. 2016) (denying motion to dismiss Title VII employment discrimination claims); Nagi v. Chao,
No. 16-2152, 2018 WL 4680272, at *4 (D.D.C. Sept. 28, 2018) (denying motion to dismiss for discrimination and
retaliation claims, and granting motion to dismiss for hostile work environment claims). But see Crawford v. Johnson,
166 F. Supp. 3d 1, 4 (D.D.C. 2016) (granting motion to dismiss converted into motion for summary judgment in Title
VII case), rev’d in part sub nom. Crawford v. Duke, 867 F.3d 103 (D.C. Cir. 2017).
221 195 F. Supp. 3d 180 (D.D.C. 2016).
222 Id. at 188.
223 Id. at 192 (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997)).
224 Id. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (setting forth the “burden-shifting”
framework applied in employment discrimination claims brought under Title VII).
225 Ross, 195 F. Supp. 3d at 194 (quoting Brady v. Office of Sgt. at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)
(alteration in original)).
226 Id. at 194, 201.
227 166 F. Supp. 3d 1 (D.D.C. 2016), rev’d in part sub nom. Crawford v. Duke, 867 F.3d 103 (D.C. Cir. 2017).
228 Id. at 4; see 42 U.S.C. § 2000e-16(c) (providing that an employee may only file a civil action once the employee has
undertaken necessary administrative steps).
229 Crawford, 166 F. Supp. 3d at 4.
230 Id. at 9.
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such information and be in such form as the [EEO Commission] requires.”231 Turning to EEO
Commission regulations, Judge Jackson observed that an EEO complaint must “describe
generally the action(s) or practice(s) that form the basis of the complaint.”232 After considering
relevant court decisions, Judge Jackson held that information about these incidents included only
in exhibits was insufficient for Crawford to have exhausted his administrative remedies.233
Accordingly, she granted DHS’s motion for summary judgment.234 On appeal, the D.C. Circuit
reversed Judge Jackson’s decision in part, holding that Crawford’s claims on two of the three
instances could proceed.235 Relying on D.C. Circuit case law and authority from other federal
courts of appeals, the D.C. Circuit concluded that exhibits are “part of the complaint itself” for
exhaustion purposes.236
At first blush, the outcomes in Ross and Crawford may appear to be in tension with each other.
Judge Jackson’s approach in both of these cases, however, may reflect a common approach that
focuses on the value of a consistent judicial and administrative process. In Ross, her decision to
deny summary judgment and allow discovery on some claims was based on what she
characterized as the court’s “ordinary practice” in adjudicating employment discrimination
claims.237 Judge Jackson dismissed other claims in Ross based on a failure to adhere to a
statutorily-prescribed process.238 In Crawford, Judge Jackson granted summary judgment before
discovery occurred, but that decision was based solely on Crawford’s alleged failure to comply
with the required process, rather than the substance of his claims.239
Judge Jackson’s decision in Njang v. Whitestone Group, Inc. also illustrates this approach.240
Njang involved employment discrimination claims brought under both Title VII of the Civil
Rights Act and 42 U.S.C. § 1981, a federal statute that prohibits racial discrimination. One issue
in Njang was whether six months was a “reasonable” period in which to bring an action under
either Title VII or Section 1981.241 On a motion for summary judgment, Judge Jackson held that
six months was a reasonable period in which to bring Section 1981 claims because the statute,
which was silent on the question, lacked “features that would make filing a claim within six
months impracticable, such as an administrative exhaustion requirement.”242 Conversely, “the
procedure for bringing a Title VII claim is far more involved and time-consuming than the
procedure for bringing a Section 1981 claim,” and requiring that process to be completed in six

231 Id. (quoting 42 U.S.C. § 2000e-5(b)).
232 Id. (quoting 29 C.F.R. § 1614.106(c)).
233 Id. at 9–10 (citing Dick v. Holder, 80 F. Supp. 3d 103, 112–13 (D.D.C. 2015)).
234 Id. at 4.
235 Crawford v. Duke, 867 F.3d 103, 116 (D.C. Cir. 2017).
236 Id.
237 Ross v. U.S. Capitol Police, 195 F. Supp. 3d 180, 194 (D.D.C. 2016).
238 Id. at 196 (holding plaintiff failed to satisfy procedural prerequisites for two of his three claims).
239 See Crawford, 166 F. Supp. at 9; see also, e.g., Lawson v. Sessions, 271 F. Supp. 3d 119, 130 (D.D.C. 2017)
(dismissing Title VII claims for failure to exhaust). Contra Nagi v. Chao, No. 16-2152, 2018 WL 4680272, at *3
(D.D.C. Sept. 28, 2018) (dismissing hostile work environment claims because “the complaint’s allegations . . . fail to
state a plausible claim for relief under a hostile work environment theory”).
240 187 F. Supp. 3d 172 (D.D.C. 2016).
241 See id. (citing Order of United Com. Travelers of Am. v. Wolfe, 331 U.S. 586, 608 (1947) (holding that a
contractual term shortening the time for bringing an action is only enforceable “if the shorter period itself [is] a
reasonable period”)).
242 Id. at 178 (citing Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1205 (7th Cir. 1992)).
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months would have “the practical effect of waiving employees’ substantive rights under Title
VII.”243
Another case, Ross v. Lockheed Martin, involved a proposed class action alleging employment
discrimination under Title VII.244 In Lockheed, two plaintiffs negotiated a $22.8 million
settlement on behalf of a proposed class of African-American employees who received negative
performance ratings while employed by the defendant.245 Judge Jackson declined to certify the
class preliminarily or approve this settlement, finding that the settlement agreement was unfair to
members of the proposed class.246 She focused on the settlement agreement’s requirement that
class members release the defendant from “all types of racial discrimination claims,” including
those unrelated to the class action claims.247 Judge Jackson was unequivocal in condemning the
scope of this release:
[I]t is shocking to this Court that counsel for the putative class members would contend
that a release this broad and consequential is a “fair” bargain as it relates to the absent
individuals whose potential legal claims are effectively extinguished by it.248
This problem was compounded by the “minuscule amount of information” that the settlement
would provide to class members, even though failing to respond to a notice of the class action
would preclude them from receiving compensation.249
Judge Jackson’s decision in Lockheed was adverse to the named plaintiffs, but her analysis in
refusing to approve the proposed settlement was rooted in concerns about the case’s impacts on
unnamed class members. This may fit within an overall pattern in Judge Jackson’s employment-
law decisions, which includes decisions favorable to employers and employees that frequently
turn on procedural grounds.250
Judge Jackson has written fewer decisions involving disputes between businesses, and thus
patterns are harder to divine. In a trademark infringement and unfair competition case, the
nominee issued a ruling in favor of the plaintiff following a full bench trial.251 In another case
involving a conflict between a restaurant and its franchisee, Judge Jackson ruled that the
restaurant had violated certain state laws regarding disclosure and registration of its franchise

243 Id. at 180.
244 267 F. Supp. 3d 174, 178 (D.D.C. 2017).
245 Id.
246 Id. at 201.
247 Id. at 202.
248 Id.
249 Id. at 202–03.
250 See, e.g., Keister v. AARP Benefits Comm., 410 F. Supp. 3d 244, 247 (D.D.C. 2019) (granting summary judgment
for defendant employer in disability benefits litigation based on language of release signed by employee); Crawford v.
Johnson, 166 F. Supp. 3d 1, 9 (D.D.C. 2016) (granting summary judgment for defendant employer in discrimination
litigation based on failure to exhaust administrative remedies), rev’d in part sub nom., Crawford v. Duke, 867 F.3d 103
(D.C. Cir. 2017); Sickle v. Torres Advanced Enter. Sols., 17 F. Supp. 3d 10, 26–27 (D.D.C. 2013) (dismissing
discrimination claims based on failure to exhaust administrative remedies), aff’d in part, 884 F. 3d 338 (D.C. Cir.
2018); see also Willis v. Gray, No. 14-1746, 2020 WL 805659, at *2 (D.D.C. Feb. 18, 2020) (dismissing certain
employment discrimination claims, but not others, based on whether the claims were resolved in prior litigation brought
by plaintiff’s union or whether the claims were barred by a statute of limitations).
251 Yah Kai World Enters., Inc. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016).
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agreement with state authorities, but determined that these violations had not harmed the
franchisee.252
Civil Procedure and Jurisdiction
The Supreme Court routinely hears cases involving questions of federal court jurisdiction (the
power of federal courts to decide cases) and civil procedure (the statutes and rules governing how
cases are litigated in federal court). In recent years, many decisions on those subjects have been
unanimous or near-unanimous.253 During this period, however, the Court has also closely divided
on certain procedural questions,254 including in ways that perhaps do not align with a
conventional view of the Court’s 5-4 decisions.255
Particularly in her role as a district court judge, Judge Jackson has resolved many cases on
procedural grounds. Some of those cases offer limited insight into how the nominee would
approach cases on the Supreme Court if confirmed: the lower federal courts consider a significant
volume of claims that are legally straightforward or even frivolous. Judge Jackson dismissed
dozens of cases for failure to state a valid claim for relief or satisfy minimum pleading
requirements.256 A number of Judge Jackson’s procedural rulings, however, implicate important
questions about the role and authority of the federal courts and may offer some guidance on how
she might rule on future procedural matters. This section examines a selection of the nominee’s
decisions on general procedural issues before looking at two specific areas of interest: standing
and sovereign immunity.
One procedural issue that has received significant attention from courts and commentators in
recent years is the appropriate scope of injunctive relief in challenges to government action.
Much of this discussion centers on nationwide injunctions, court orders that bar the government
from enforcing a challenged law or policy with respect to all persons, regardless of whether they
are parties to the litigation.257 The Supreme Court has considered multiple cases involving
nationwide injunctions in recent years, and several Justices have opined on the practice in

252 A Love of Food I, LLC v. Maoz Vegetarian USA, Inc.,70 F. Supp. 3d 376, 405 (D.D.C. 2014).
253 See, e.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1022 (2021) (unanimous; Barrett, J., not
participating) (addressing personal jurisdiction); Fort Bend Cnty., Tex. v. Davis, 139 S. Ct. 1843, 1846 (2019)
(unanimous) (addressing the forfeiture of arguments); Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam) (eight-
Justice majority remanding to court of appeals to address constitutional standing questions); Nutraceutical Corp. v.
Lambert, 139 S. Ct. 710, 715 (2019) (unanimous) (addressing whether a deadline is subject to equitable tolling); New
Prime Inc. v. Oliveira, 139 S. Ct. 532, 537, 539 (2019) (seven-Justice majority; Kavanaugh, J., not participating)
(addressing which issues are appropriate for courts and arbitrators to decide); Henry Schein, Inc. v. Archer & White
Sales, Inc., 139 S. Ct. 524, 529 (2019) (unanimous) (same).
254 See, e.g., Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1419 (2019) (majority opinion of Roberts, C.J., joined by
Thomas, Alito, Gorsuch, and Kavanaugh, JJ.) (“Courts may not infer from an ambiguous agreement that parties have
consented to arbitrate on a classwide basis.”).
255 See Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1747–51 (2019) (majority opinion of Thomas, J., joined
by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.) (holding that a third-party counterclaim defendant may not remove a
case to federal court under either the general removal statute or the Class Action Fairness Act).
256 E.g., Shaw v. Ocwen Loan Servicing, LLC, No. 14-cv-2203, 2015 WL 4932204, at *1 (D.D.C. Aug. 18, 2015)
(dismissing complaint sua sponte under Federal Rules of Civil Procedure 8(a) and 12(b)(6)); Pencheng Si v. Laogai
Rsch. Found., 71 F. Supp. 3d 73, 79 (D.D.C. 2014) (granting in part motion to dismiss False Claims Act claims for
failure to comply with the pleading requirements of Federal Rule of Civil Procedure 9(b)). See also “The Role of a U.S.
District Judge” supra.
257 See generally CRS Report R46902, Nationwide Injunctions: Law, History, and Proposals for Reform, by Joanna R.
Lampe.
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separate opinions, but a majority of the Supreme Court has yet to issue clear guidance on the
overall legal status of nationwide injunctions.258
Judge Jackson considered the proper scope of an injunction against the government in the 2019
case Make the Road New York v. McAleenan.259 In that case, the nominee held that a DHS policy
designating for expedited removal certain persons who entered the United States unlawfully was
likely issued in violation of the APA and must be enjoined.260 Having determined that an
injunction was warranted, Judge Jackson rejected the government’s argument that any injunction
should be limited to barring enforcement against the plaintiffs before the court.261 She noted:
“Ordinarily, in the wake of an unfavorable judgment from a federal court regarding procedural
claims brought under the APA, agency actors willingly refrain from imposing on anyone the rule
that a federal court has found to be unlawful.”262 The government’s request to continue to enforce
the policy against non-parties, she reasoned, was
a terrible proposal that is patently inconsistent with the dictates of the law. Additionally, it
reeks of bad faith, demonstrates contempt for the authority that the Constitution’s Framers
have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full
measure of the remedy to which they are entitled.263
On appeal, the D.C. Circuit reversed Judge Jackson’s decision, holding that the agency’s action
was not subject to judicial review. Having done so, the appeals court did not address the scope of
injunctive relief that would be available.264
Judge Jackson’s time on the district court appears to have given her a keen understanding of the
practical impact of appellate court procedural rulings. In both district court and D.C. Circuit
decisions, she has expressed strong views on appeals court rulings that vacate district court
decisions. As one example, in Maryland v. U.S. Department of Education, Judge Jackson
dismissed for lack of standing a challenge by state attorneys general to the Department’s failure
to implement certain regulations concerning deceptive marketing by for-profit colleges.265 While
an appeal of that district court ruling was pending, a new rule rescinding the regulations took
effect, and the states requested that the D.C. Circuit vacate the district court’s order because the
case was moot. In a summary order, the D.C. Circuit granted the motion for vacatur and
remanded the case to the district court with instructions to dismiss as moot.266 Vacatur meant that
the district court opinion on standing had no legal effect, including as precedent, even though the
court of appeals had not reviewed the substance of the opinion or determined whether it was
erroneous.
Judge Jackson heeded the appellate court’s directions on remand, but wrote an opinion, “from the
standpoint of the district court,” objecting to the vacatur.267 She asserted that the D.C. Circuit’s

258 See id. at 10.
259 405 F. Supp. 3d 1 (D.D.C. 2019), rev’d sub nom. Make The Road N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020); see
also “Immigration” section.
260 Id. at 44–66.
261 Id. at 66.
262 Id.
263 Id.
264 Make The Road N.Y., 962 F.3d at 618. But see id. at 647 & n.16 (Rao, J., dissenting) (finding “especially
problematic” the district court’s entry of a nationwide injunction).
265 474 F. Supp. 3d 13, 20 (D.D.C. 2020), vacated, No. 20-5268, 2020 WL 7868112 (D.C. Cir. Dec. 22, 2020).
266 Maryland v. U.S. Dep’t of Ed., No. 20-5268, 2020 WL 7868112 (D.C. Cir. Dec. 22, 2020).
267 Maryland v. U.S. Dep’t of Ed., No. 17-cv-2139, 2020 WL 7773390, at *1 (D.D.C. Dec. 29, 2020).
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willingness to grant vacatur in such cases “appears to have resulted in the seemingly unnecessary
nullification of a district court’s contribution to the body of common law reasoning concerning
Article III standing.”268 The nominee’s opinion, drafted more like a dissent than a typical trial
court opinion, warned that the practice of vacatur “rewards gamesmanship concerning complex
mootness questions, raises the specter of [an] end-run around established norms of appellate
procedure, . . . and has significant downstream consequences.”269
Judge Jackson remained interested in the issue of vacatur after her appointment to the D.C.
Circuit. In February 2022, Judge Jackson sat on a motions panel of the D.C. Circuit that issued an
order dismissing an appeal as moot, but denied a request to vacate the underlying district court
judgment.270 The nominee filed an opinion concurring in the panel’s disposition, emphasizing that
vacatur of a district court decision that has become moot is an extraordinary remedy that should
be granted only when required out of fairness to the parties.271 She asserted that “rote vacatur of
district court opinions, without merits review and simply because the dispute is subsequently
mooted, is inconsistent with well-established principles of appellate procedure and practice.”272
Judge Jackson wrote:
[T]he dispute-and-decision bell cannot be unrung—there was a dispute and someone was
declared the winner. Written opinions are the most accurate historical record of what the
supervising court thought of those events. And in a common law system of case-by-case
adjudication, that history need not, and should not, be cavalierly discarded.273
These opinions on the subject of vacatur provide insight into Judge Jackson’s views not only on a
narrow issue of appellate procedure, but also on the respective roles of district and appellate
courts and the value of precedents as part of an ever-growing body of case law.
More generally, Judge Jackson’s procedural decisions evince care and attention to detail, even in
cases that are legally straightforward. In one case, for instance, Judge Jackson considered claims
by unrepresented individuals challenging the foreclosure on their home.274 A magistrate judge
determined that the plaintiffs had failed to serve the defendants properly and recommended that
the case be dismissed. The nominee reviewed the magistrate judge’s findings and agreed that
service had been defective.275 However, she further concluded that the plaintiffs, who were not
represented by counsel, “were never given a clear explanation of why their prior attempts at
service were deemed deficient, and they were not provided the customary notice of the
consequences of their failure to effect proper service upon Defendants.”276 She thus declined to
dismiss the case and granted the plaintiffs “one more opportunity to effect proper service.”277
In another case, the nominee granted in part and denied in part a motion to dismiss employment
discrimination and retaliation claims by a former D.C. public school teacher.278 Although she

268 Id.
269 Id.
270 I.A. v. Garland, No. 20-5271, 2022 WL 696459, at *1 (D.C. Cir. Feb. 24, 2022).
271 Id. at *3 (statement of Jackson, J.).
272 Id.
273 Id. at 3–4.
274 Raja v. Fed. Deposit Ins. Corp., No. 16-cv-0511, 2018 WL 818393, at *1 (D.D.C. Feb 12, 2018).
275 Id.
276 Id.
277 Id.
278 Willis v. Gray, No. 14-cv-1746, 2020 WL 805659, at *1 (D.D.C. 2020).
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observed that the complaint was “not a model of clarity,” Judge Jackson parsed each claim to
determine which claims were precluded by past litigation, which were time-barred, and which
could proceed.279
In a 2017 environmental case, Judge Jackson granted a motion to transfer litigation involving elk
feeding sites in Wyoming to the Wyoming District Court, holding that such matters were “plainly
local in character and were best left to Wyoming’s courts.”280 The nominee declined to criticize
prior District of D.C. decisions that emphasized the “iconic” nature and national significance of
the Jackson elk, but wrote that the narrow question before her was only whether the litigation was
“necessarily national in scope.”281
In another case, Judge Jackson denied a motion to dismiss as duplicative in a case where similar
claims were pending in both the District of D.C. and the District of West Virginia.282 While she
critiqued the government’s motion to dismiss as “a calculated attempt to force [the plaintiff] to
pursue its APA claims in federal court in West Virginia, despite the fact that [the plaintiff] has
selected the instant forum and without due regard to the most pertinent equitable considerations,”
she ultimately declined to endorse either party’s position in full.283
In a 2017 tort case, Washington Metropolitan Area Transit Authority (WMATA) v. Ark Union
Station, Inc., Judge Jackson declined to dismiss a claim in which WMATA alleged that the
defendant’s negligence caused a water leak that damaged Metro facilities.284 The nominee held
that, under a provision of the D.C. Code based on the common law nullum tempus doctrine, the
statute of limitations did not run against WMATA because the agency’s negligence suit sought to
vindicate public rights.285 While Judge Jackson stated she was “extending the benefit of nullum
tempus to WMATA in this case,” she emphasized that her holding was rooted in authoritative
interpretations of D.C. law from the D.C. Court of Appeals and was limited to the tort claims
before her.286
Standing
One key procedural issue that has arisen in a number of Judge Jackson’s cases is standing—the
constitutional requirement that any plaintiff who sues in federal court must have a concrete,
personal interest in the litigation, rather than simply raising a generalized policy objection or
other grievance.287 To establish standing, a plaintiff must show that she has suffered (or will
imminently suffer) an injury in fact that is caused by the defendant and can be redressed by a
favorable court decision.288 If the plaintiff cannot demonstrate standing, the federal courts lack

279 Id. at *5.
280 W. Watersheds Project v. Tidwell, 306 F. Supp. 3d 350, 363 (D.D.C. 2017).
281 Id. at 363.
282 Coal River Mountain Watch v. U.S. Dep’t of the Interior, 146 F. Supp. 3d 17, 19–20 (D.D.C. 2015).
283 Id. at 20.
284 268 F. Supp. 3d 196, 200 (D.D.C. 2017).
285 Id. at 200; see also id. at 201 (explaining under the nullum tempus doctrine, a sovereign is immune from statutes of
limitations).
286 Id. at 211.
287 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also “Standing and Procedural Issues in
Environmental Law Cases” infra.
288 Lujan, 504 U.S. at 560–61.
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jurisdiction to consider the claim.289 The doctrine of standing, although procedural on its face,
implicates broader questions about the public’s access to the courts and the constitutional limits
of judicial review.
Recognizing those broader questions, Judge Jackson has at times authored decisions that discuss
the standing doctrine’s origin and purpose. In a 2015 decision, Judge Jackson cited constitutional
text, judicial precedents, and a law review article by the late Associate Justice Antonin Scalia and
explained that the “standing doctrine is primarily rooted in the concern for maintaining the
separation of powers.”290 The nominee further opined that constitutional standing “acts as a
gatekeeper, opening the courthouse doors to narrow disputes that can be resolved merely by
reference to facts and laws, but barring entry to the broad disquiets that can be resolved only by
an appeal to politics and policy.”291 In another case, she wrote: “Boiled to bare essence, then, ‘the
standing question is whether the plaintiff has alleged such a personal stake in the outcome of the
controversy as to warrant [her] invocation of federal-court jurisdiction and to justify exercise of
the court’s remedial powers on [her] behalf.’”292
Under this rationale, Judge Jackson has held that plaintiffs without a sufficiently personal stake in
a case did not have standing. For instance, in New England Anti-Vivisection Society v. U.S. Fish &
Wildlife Service, Judge Jackson ruled that an animal welfare organization lacked standing to
challenge the grant of a wildlife export permit to transfer chimpanzees to a zoo in the United
Kingdom.293 While she noted that the plaintiffs raised “persuasive” arguments on the merits,
Judge Jackson held those plaintiffs “themselves must have a concrete and particularized injury in
fact that is actual or imminent, that is fairly traceable to Defendants’ actions, and that a federal
court’s decision can redress.”294 Likewise, in Feldman v. Bowser, Judge Jackson rejected a D.C.
taxpayer’s challenge to the D.C. Local Budget Autonomy Amendment Act of 2012 and large
portions of the D.C. budget enacted pursuant to the Act.295 Finding that the plaintiff sought
broadly “to challenge the method by which the District enacts its budget,”296 she wrote that “this
Court is not persuaded that it should expand the reach of the narrow standing exception available
to municipal taxpayers” without more precedential support.297
The doctrine of standing also governs access to courts by establishing when an association may
sue to protect the rights of its members. In Equal Rights Center v. Uber Technologies, Inc., Judge
Jackson considered claims that Uber discriminated against wheelchair users in violation of the
Americans with Disabilities Act and the D.C. Human Rights Act.298 The nominee held that a non-
profit organization dedicated to combatting disability discrimination had associational standing to

289 Id. at 561.
290 Food & Water Watch, Inc. v. Vilsack, 79 F. Supp. 3d 174, 185 (D.D.C. 2015), aff’d, 808 F.3d 905 (D.C. Cir. 2015).
291 Id. at 186. Judge Jackson cited this language in a number of her subsequent decisions. See, e.g., Fed. Forest Res.
Coal. v. Vilsack, 100 F. Supp. 3d 21, 34 (D.D.C. 2015); Cal. Clinical Lab. Ass’n v. Sec. of Health & Human Servs.,
104 F. Supp. 3d 66, 74 (D.D.C. 2015).
292 California Clinical Laboratory Ass’n, 104 F. Supp. 3d at 74 (quoting Warth v. Seldin, 422 U.S. 490, 498–99 (1975))
(alteration in original).
293 208 F. Supp. 3d 142, 148 (D.D.C. 2016); see also “Standing and Procedural Issues in Environmental Law Cases”
infra.
294 New England Anti-Vivisection Soc’y, 208 F. Supp. 3d at 148.
295 315 F. Supp. 3d 299, 302 (D.D.C. 2018).
296 Id. at 309.
297 Id. at 312.
298 525 F. Supp. 3d 62, 66 (D.D.C. 2021). For additional discussion of the substantive claims in this case, see “Civil
Rights and Qualified Immunity” section.
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challenge Uber’s policies. This was in part because one of the non-profit’s members alleged she
was “plausibly deterred from attempting to use Uber’s service” because she believed the
company would not accommodate her disability, and thus had incurred “a sufficient injury in fact
to support a finding that she has standing to sue in her own right.”299
One high-profile case discussed in greater detail elsewhere in this report raised a substantial
standing question.300 In Committee on the Judiciary v. McGahn, Judge Jackson held that a
congressional committee had standing to sue in federal court to enforce a subpoena issued to an
executive branch official.301 In response to a claim that the Committee had not suffered an injury
giving rise to standing, the nominee wrote that “no federal judge has ever held that defiance of a
valid subpoena does not amount to a concrete and particularized injury in fact.”302 She further
opined that this was “perhaps for good reason: if defiance of duly issued subpoenas does not
create Article III standing and does not open the doors of the court for enforcement purposes, it is
hard to see how the wheels of our system of civil and criminal justice could keep turning.”303
Sovereign Immunity and Suits Against Foreign Defendants
Two distinct but related procedural issues that Judge Jackson has confronted in multiple cases
involve questions of when sovereign entities are immune from suit304 and when U.S. federal
courts can hear claims involving foreign parties. These questions overlap when a U.S. court
considers whether to exercise its authority over a foreign sovereign.305
One of Judge Jackson’s opinions for the D.C. Circuit raised procedural issues implicating the
relationship between different federal courts as well as questions related to foreign sovereign
immunity. In Wye Oak Technology, Inc. v. Republic of Iraq, a D.C. Circuit panel including Judge
Jackson considered the government of Iraq’s claim of sovereign immunity in a contract dispute
with an American defense contractor.306 The case initially proceeded in a Virginia federal court
and before the Fourth Circuit. The Fourth Circuit allowed the claim against Iraq to proceed,
applying an exception to the Foreign Sovereign Immunities Act (FSIA) for claims arising from a
foreign sovereign’s commercial activities.307 Following transfer to the District of D.C., the district
court held that the “law of the case” doctrine required the D.C. federal courts to follow the Fourth
Circuit’s ruling.308 The district court also agreed with the Fourth Circuit’s substantive holding that
the FSIA’s commercial activity exception applied.309
On appeal, the D.C. Circuit reversed. In an opinion authored by Judge Jackson, the court held that
the law of the case doctrine did not control the D.C. Circuit’s FSIA analysis, in part because the
Fourth Circuit and the D.C. federal courts confronted the sovereign immunity claim at different

299 Equal Rights Ctr., 525 F. Supp. 3d at 79.
300 See “Standing” supra; “Separation of Powers” infra.
301 415 F. Supp. 3d 148, 154 (D.D.C. 2019).
302 Id. at 189.
303 Id.
304 For discussion of the related doctrine of qualified immunity, see “Civil Rights and Qualified Immunity” infra.
305 In addition to the cases discussed below, see, e.g., Mohammad Hilmi Nassif & Partners v. Republic of Iraq, No. 17-
cv-2193, 2020 WL 1444918 (D.D.C. Mar. 25, 2020).
306 24 F.4th 686 (D.C. Cir. 2022).
307 Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 207 (4th Cir. 2011).
308 Wye Oak Tech., Inc. v. Republic of Iraq, No. 10-cv-1182, 2019 WL 4044046, at *23 (D.D.C. Aug. 27, 2019).
309 Id.
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stages in the litigation.310 Looking to the FSIA’s text, judicial precedent, and legislative history,
the D.C. Circuit further held that the Fourth Circuit improperly applied the FSIA exception.311
However, concluding that another clause of the commercial activity exception might apply, the
panel remanded the case to the district court for further consideration.312
In an earlier district court case, SACE S.p.A. v. Republic of Paraguay, Judge Jackson considered a
dispute over the interpretation of the FSIA that she described as an issue of first impression in the
D.C. federal courts.313 The case involved a purported waiver of sovereign immunity by a
government official who lacked authority to effect such a waiver. Looking to persuasive authority
from other circuits, the nominee held that the suit must be dismissed because “the waiver
provision of the FSIA requires actual authority to waive the foreign state’s sovereign
immunity.”314
In Youssef v. Embassy of United Arab Emirates, Judge Jackson considered an age discrimination
claim from a former employee of the United Arab Emirates’ (UAE) Embassy in Washington,
D.C.315 The UAE and the Embassy claimed sovereign immunity under the FSIA. They also
argued that the claim must be dismissed under the federal enclave doctrine, which provides that
when the federal government acquires land from a state, “any state law that is enacted after the
federal government acquires the property is generally inapplicable on that property.”316 Judge
Jackson rejected both claims, holding that the case fell within the FSIA’s commercial activity
exception, and that the federal enclave doctrine does not apply to the D.C. laws.317
In Azima v. RAK Investment Authority, Judge Jackson denied a motion to dismiss Computer Fraud
and Abuse Act claims on the grounds of sovereign immunity.318 In their dispute over whether the
FSIA exception for commercial activity applied, the parties disagreed as a factual matter about
where an alleged computer hacking took place. Judge Jackson declined to resolve the factual
dispute, holding that
the text, structure, and purpose of the FSIA’s commercial activity exception all point to the
conclusion that, rather than mandating identification of the location of the foreign
sovereign’s allegedly tortious act, Congress’s primary concern is ensuring that a lawsuit
can be maintained if the foreign sovereign acts in a commercial capacity and undertakes a
harmful act that occurs in, or impacts, the United States.319
In another case, Judge Jackson disposed of claims against foreign defendants without reaching the
question of sovereign immunity.320 In In re Air Crash Over Southern Indian Ocean, the nominee

310 Wye Oak, 24 F.4th at 697.
311 Id. at 700. Wye Oak provides one example of Judge Jackson’s willingness to use a variety of tools in statutory
interpretation. See also “Statutory Interpretation” supra.
312 Wye Oak, 24 F.4th at 703.
313 243 F. Supp. 3d 21, 35–36 (D.D.C. 2017).
314 Id. at 24.
315 No. 17-cv-2638, 2021 WL 3722742 (D.D.C. Aug. 23, 2021).
316 Id. at *10.
317 Id. at *1.
318 305 F. Supp. 3d 149, 154 (D.D.C. 2018), rev’d, 926 F.3d 870 (D.C. Cir. 2019).
319 Id. at 171. Azima also raised the question of whether the suit against the foreign sovereign should take place in the
United Kingdom pursuant to the forum-selection clause in an agreement between the parties. Judge Jackson held that
the forum-selection clause did not apply. Id. at 172–76. On that issue, however, the nominee was later reversed by the
D.C. Circuit. See Azima v. RAK Inv. Auth., 926 F.3d 870 (D.C. Cir. 2019).
320 In re Air Crash Over Southern Indian Ocean, 352 F. Supp. 3d 19, 52–53 (D.D.C. 2018) (holding that existence of
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considered numerous claims arising from the disappearance of Malaysia Airlines Flight MH370.
She granted the defendants’ motion to dismiss on the ground of forum non conveniens, holding
that Malaysia provided an available and adequate alternative forum for the litigation.321 After
analyzing at length multiple factors that weighed for and against dismissal, she concluded that
none of the claims at issue were “ultimately more conveniently litigated in the United States than
in Malaysia.”322
Other Judge Jackson opinions involved claims of sovereign immunity by domestic state actors.323
For instance, in Mackinac Tribe v. Jewell, the Secretary of the Interior raised a sovereign
immunity defense in a suit seeking federal recognition of an Indian tribe.324 Judge Jackson held
that the United States had waived sovereign immunity with respect to the suit, but ultimately
dismissed it on other grounds.325 In Doe v. WMATA, a passenger who was sexually assaulted on a
Metro train sued WMATA, alleging the agency was negligent in failing to prevent the assault.326
Judge Jackson granted WMATA’s motion to discuss, holding that “WMATA has sovereign
immunity . . . under well-established precedents that demarcate the boundaries of governmental
and proprietary agency functions.”327
Civil Rights and Qualified Immunity
Judge Jackson has considered a number of civil rights cases, including claims against both private
entities and state actors.328 The nominee’s decisions in this area demonstrate her review of the
facts in each case and analysis of the applicable legal precedents. However, because these cases
are often highly fact-dependent, it is difficult to discern broader trends.
As one example, in Pierce v. District of Columbia, Judge Jackson considered disability
discrimination and retaliation claims brought by a deaf man who was incarcerated in the D.C.
Correctional Treatment Facility without accommodations such as access to an American Sign
Language interpreter.329 Judge Jackson ruled in favor of the plaintiff on his discrimination claims,
finding dispositive the fact that prison staff “did nothing to evaluate [the plaintiff’s] need for
accommodation, despite their knowledge that he was disabled.”330 Rejecting as “preposterous”
the government’s claim that the plaintiff had not requested accommodations for his disability, she
held that “the failure of prison staff to conduct an informed assessment of the abilities and
accommodation needs of a new inmate who is obviously disabled is intentional discrimination in
the form of deliberate indifference . . . as a matter of law.”331

sovereign immunity questions was one factor that weighed against U.S. courts considering the case), aff’d, 946 F. 3d
607 (D.C. Cir. 2020).
321 Id. at 37.
322 Id.
323 Sovereign immunity is also the basis for qualified immunity for government officials, which is treated separately in
this report. See “Civil Rights and Qualified Immunity” infra.
324 87 F. Supp. 3d 127, 130 (D.D.C. 2015).
325 Id. at 130.
326 453 F. Supp. 3d 354, 359 (D.D.C. 2020).
327 Id. at 364.
328 In addition to the cases discussed in this section, see “Business and Employment Law” supra.
329 128 F. Supp. 3d 250, 253 (D.D.C. 2015).
330 Id. at 254.
331 Id. at 268.
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In civil rights litigation against the government, Judge Jackson was often required to determine
whether the defendants could benefit from qualified immunity—the legal doctrine holding that
government officials performing discretionary duties are immune from suit unless they violate
clearly established law.332 Judge Jackson rejected a qualified immunity defense in Patterson v.
United States, holding that U.S. Park Police who arrested an individual for using profanity in a
public park violated clearly established law under the First and Fourth Amendments.333 The
nominee explained that there was “no dispute about the ‘clearly established’ nature of the basic
rights at issue.” 334 She further held that “no reasonable officer could conclude that [the plaintiff’s]
conduct was likely to produce violence or otherwise cause a breach of the peace, as required to
justify either punishing his speech under the First Amendment or arresting him for disorderly
conduct” under D.C. law.335
In Robinson v. Farley, Judge Jackson denied a motion to dismiss an array of statutory,
constitutional, and common law claims arising from the arrest of an intellectually disabled
man.336 The nominee rejected the defendants’ argument that the complaint must specify which
law enforcement officers engaged in what alleged misconduct, stating that such a requirement
could not “possibly be the state of the law.”337 She explained that, on a motion to dismiss, before
the plaintiffs could develop their factual claims through discovery, “it is impossible to imagine
that a complaint involving the allegedly wrongful conduct of a number of police officers could
ever contain the specificity that Defendants here say is required. And, indeed, existing precedent
clearly indicates that no such pleading standard exists.”338 Judge Jackson also rejected the
defendants’ attempt to raise “a fleeting ‘qualified immunity’ reference that is entirely devoid of
any relevant substance,” which she characterized as duplicating their specificity argument rather
than properly addressing the requirements of qualified immunity.339
In other cases, Judge Jackson has accepted defendants’ claims of qualified immunity. For
instance, in Pollard v. District of Columbia, Judge Jackson dismissed on qualified immunity
grounds claims arising from the arrest of an intellectually disabled man on drug charges.340 Judge
Jackson held that the arresting officers were entitled to qualified immunity on several claims
because the plaintiffs identified no infringement of the arrestee’s rights, let alone one that violated
clearly established law.341 Similarly, in Kyle v. Bedlion, Judge Jackson granted summary judgment
in favor of the government on claims of false arrest and use of excessive force in violation of the
Fourth and Fifth Amendments.342 The nominee concluded that the Fifth Amendment did not apply
to the plaintiff’s claims and, even if the Fourth Amendment could apply to the claims, the

332 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity analysis requires more than simply determining
whether the defendant government official violated the Constitution, because “a government official who violates the
constitution will be protected if his or her actions were reasonable in light of clearly established law and the
information the official possessed when he or she acted.” Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir.
1988).
333 999 F. Supp. 2d 300, 303 (D.D.C. 2013).
334 Id. at 312.
335 Id. at 315.
336 264 F. Supp. 3d 154, 156 (D.D.C. 2017).
337 Id. at 160.
338 Id.
339 Id. at 162.
340 191 F. Supp. 3d 58, 63 (D.D.C. 2016), aff’d, 698 F. App’x 616 (D.C. Cir. 2017).
341 Id. at 68.
342 177 F. Supp. 3d 380, 384 (D.D.C. 2016).
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defendant officers were entitled to qualified immunity because they did not violate a Fourth
Amendment right that was “clearly established.”343
Outside the qualified immunity context, in Jackson v. Bowser, the nominee considered
constitutional and common law claims against public and private actors involved in
redevelopment projects in the District of Columbia that allegedly caused displacement of low-
income residents, minorities, and seniors.344 Judge Jackson dismissed the case, holding that the
private defendants were not state actors subject to suit for constitutional violations and, with
respect to the government defendants, the plaintiff “failed to plead sufficient facts to support a
plausible inference that a District policy or custom caused him to suffer a constitutional
injury.”345
In Rothe Development, Inc. v. Department of Defense, Judge Jackson considered an equal
protection challenge under the Fifth Amendment’s Due Process Clause to a provision of the Small
Business Act that established a business development program for socially and economically
disadvantaged small business concerns.346 The nominee rejected the challenge, holding that the
plaintiff’s facial challenge required showing that “no set of circumstances” existed under which
the challenged provision would be valid, or that the provision lacked “any plainly legitimate
sweep,” and plaintiff failed to meet that high bar.347 The D.C. Circuit affirmed Judge Jackson’s
judgment, albeit on different grounds, and the Supreme Court denied review.348
Finally, in a discrimination case against a private defendant, Judge Jackson considered claims that
Uber discriminated against wheelchair users in violation of the Americans with Disabilities Act
and the D.C. Human Rights Act.349 After holding that the plaintiff organization had standing to
sue,350 as discussed above, Judge Jackson rejected Uber’s arguments that the relevant anti-
discrimination statutes did not apply to the company, holding that the plaintiff made sufficiently
plausible claims of discrimination to survive a motion to dismiss.351

343 Id. at 389. Having dismissed the plaintiff’s federal claims, the nominee declined to exercise pendent jurisdiction
over the remaining D.C. law tort claims. Id. at 399–400.
344 No. 1:18-cv-1378, 2019 WL 1981041, at *1 (D.D.C. 2019).
345 Id. at *6. Having dismissed the plaintiff’s federal claims, the nominee declined to exercise pendent jurisdiction over
the remaining D.C. common law claims. Id. at *11.
346 107 F. Supp. 3d 183, 187 (D.D.C. 2015), aff’d, 836 F.3d 57 (D.C. Cir. 2016).
347 Id. at 207.
348 Rothe Dev., Inc. v. U.S. Dep’t of Defense, 836 F.3d 57, 63 (D.C. Cir. 2016), cert denied, 138 S. Ct. 354 (2017).
349 Equal Rights Ctr v. Uber Techs., Inc., 525 F. Supp. 3d 62, 66 (D.D.C. 2021).
350 Id. at 79. For additional discussion of the portion of the decision focused on standing, see supra “Standing.”
351 Equal Rights Ctr., 525 F. Supp. 3d at 81–89.
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Criminal Law and Procedure
Over the course of her academic352 and legal career,353 Judge Jackson worked on criminal law and
procedure issues from a number of different perspectives.354 For example, from 2005 to 2007,
Judge Jackson was an assistant federal public defender in the appellate division of the office of
the D.C. Federal Public Defender,355 where she represented indigent clients in appeals stemming
from, among other things, alleged firearms, tax evasion, and fraud offenses.356 As an assistant
federal public defender, Judge Jackson also “represented a detainee seeking habeas review of his
classification as an ‘enemy combatant’ and his resulting detention at the United States Naval
Station in Guantanamo Bay, Cuba.”357
In private practice, Judge Jackson worked on criminal appeals358 and authored amicus briefs for
Supreme Court cases on issues such as permissible exclusions under the Speedy Trial Act359 and
whether automatic vehicle searches subsequent to the arrest of the vehicle’s occupant are
compatible with the Fourth Amendment.360 This section of the report focuses primarily on Judge
Jackson’s work for the U.S. Sentencing Commission and as a district court judge.361
Substantive Criminal Law
Due to the nature of federal district court work, Judge Jackson has presided over a number of
criminal cases that did not result in substantial written opinions, including several cases she
identified as “significant” on the Senate Judiciary Committee’s questionnaires submitted in

352 Judge Jackson authored scholarly articles as a law student with a criminal law focus. See, e.g., Prevention Versus
Punishment, supra note 120 (exploring boundary between regulation and punishment in the context of sex offender
legislation and concluding that in determining how to classify a given statute, a court should look to the effect of a
sanction and whether it implicates constitutional provisions); Racketeer Influenced and Corrupt Organizations Act
(Rico)—Scope of Liability After Reves v. Ernst & Young—Second Circuit Holds Liable Only Those Who Operate or
Manage the Enterprise; First Circuit Extends Liability to All in Chain of Command, 108 HARV. L. REV. 1405 (1995)
(evaluating two federal circuit court opinions regarding the extent of RICO liability for low-level employees, and
critiquing a First Circuit opinion holding that RICO prosecution is permissible for “every enterprise employee who is
within the ‘chain of command’”). Judge Jackson’s interest in criminal law issues was evident even as an undergraduate.
See Senate Judiciary Attachments, supra note 74, at 104 (undergraduate senior thesis addressing the plea bargain
process).
353 Judge Jackson has been a panelist and presenter on a number of criminal law and procedure topics. See generally
Senate Judiciary Questionnaire, supra note 16, at 9–22.
354 See “Biographical Information” infra.
355 CRS Legal Sidebar LSB10702, Judge Ketanji Brown Jackson: Selected Primary Material, by Juria L. Jones and
Laura Deal.
356 Senate Judiciary Questionnaire, supra note 16, at 140–43.
357 Id. at 141.
358 Id. at 127.
359 Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, Bloate
v. United States, 559 U.S. 196 (2010).
360 Brief of the National Association of Federal Defenders as Amicus Curiae in Support of Respondent, Arizona v.
Gant, 556 U.S. 332 (2009).
361 Although Judge Jackson was confirmed to the D.C. Circuit on June 14, 2021, she has not authored a criminal law
opinion in that capacity.
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conjunction with her judicial nominations.362 For instance, in United States v. Welch,363 the so-
called “Pizzagate” case, the defendant, driven by rumors of a child sex-trafficking ring being
operated out of a Washington, D.C. restaurant, walked into the restaurant with a firearm, fired
several rounds, and pointed the weapon at an employee.364 The defendant ultimately pled guilty to
federal and D.C. criminal charges and was sentenced by Judge Jackson to concurrent sentences of
24 and 48 months in prison, both within applicable U.S. Sentencing Guidelines (Guidelines)
ranges.365
In United States v. Wolfe,366 the defendant, the former Director of Security for the U.S. Senate
Select Committee on Intelligence, ultimately pled guilty to making a false statement to the FBI, in
violation of 18 U.S.C. § 1001, in relation to an investigation into his contacts with reporters.367 In
the course of pretrial proceedings, Judge Jackson denied the defendant’s motion seeking an order
that the President and others refrain from commenting publicly on the case.368 Following the
defendant’s guilty plea, Judge Jackson sentenced the defendant to a within-Guidelines term of
two months of imprisonment, rejecting the government’s request for an upward departure.369
Judge Jackson’s written opinions in criminal law cases provide limited insight into how she might
treat particular substantive issues as a Supreme Court Justice. As previously explained, district
courts are constrained by Supreme Court and appellate precedent, and are often charged with the
resolution of factual disputes or the application of settled legal rules that may not suggest a
particular judicial philosophy or approach.370 These aspects of district court work are reflected in
the nominee’s decisions in many criminal cases.
In United States v. Johnson, for example, the defendant filed a motion for a new trial after being
convicted by a jury of various federal and D.C. weapons charges based on his possession of
improvised explosive devices (IEDs), among other things.371 The defendant argued that the
government failed to adduce evidence at trial that the IEDs at issue met the relevant legal
definitions of “weapon of mass destruction” and “destructive device.”372 Judge Jackson
proceeded through various portions of the trial transcript in order to show that “the government
did, in fact, introduce uncontradicted evidence during trial that both IEDs” had the requisite
characteristics for the jury to find that they met those definitions.373 The nominee thus concluded
that the defendant’s motion failed to meet the “heavy burden” of demonstrating the jury’s verdict

362 Senate Judiciary Questionnaire, supra note 16, at 92–102; S. COMM. JUDICIARY, 117th Cong., QUESTIONNAIRE FOR
JUDICIAL NOMINEES, at 70–79, https://www.judiciary.senate.gov/imo/media/doc/Jackson%20Senate%20Judiciary%20
Questionnaire1.pdf (last visited Mar. 9, 2022) [hereinafter D.C. Circuit Questionnaire].
363 No. 16-CR-232 (D.D.C. 2017).
364 Senate Judiciary Questionnaire, supra note 16, at 100–01.
365 Id. The U.S. Sentencing Guidelines, promulgated by the U.S. Sentencing Commission, establish sentencing policies
and practices for federal courts. See Guidelines, U.S. SENTENCING COMM’N, https://www.ussc.gov/guidelines.
366 No. 18-CR-170, 2018 WL 10705448 (D.D.C. Dec. 26, 2018).
367 D.C. Circuit Questionnaire, supra note 362, at 78.
368 Id.
369 Id.
370 See “The Role of a U.S. District Judge” supra.
371 No. 15-CR-125, 2019 WL 3842082, *1 (D.D.C. Aug. 15, 2019), aff’d in part and vacated in part, 4 F.4th 116 (D.C.
Cir. 2021).
372 Id.
373 Id. at *3.
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should be overturned, as doing so would “require the Court to ignore or discount the bulk of the
government’s evidence at trial.”374
One case in which Judge Jackson was called upon to address an unsettled legal question, United
States v. Hillie, concerned the scope of federal prohibitions on the production and possession of
child pornography.375 The defendant in the case moved to dismiss the charges against him on
several federal child-pornography counts; the motion turned on the meaning of the statutory
phrase “lascivious exhibition.”376 To interpret that phrase, Judge Jackson relied on a set of non-
dispositive, guiding factors referred to as the “Dost factors,” which include consideration of
“whether the visual depiction is intended or designed to elicit a sexual response in the viewer,”
among other things.377 The nominee acknowledged that the courts of appeals had different
opinions about the usefulness of the Dost factors, and she recognized that the D.C. Circuit had not
yet taken a position on the question.378 Judge Jackson decided to rely on the Dost factors because
those factors captured relevant contextual information that could be helpful in evaluating the
“elusive concept” of lasciviousness, at least in some cases.379 Accordingly, referencing the factors,
the nominee concluded that a reasonable jury could find the videos at issue to constitute
“lascivious exhibition,” emphasizing the need to account for the defendant’s intent to gain sexual
gratification from what was filmed, rather than the victim’s actions or state of mind.380 The
defendant was subsequently convicted of seven federal child-pornography counts, but a divided
panel of the D.C. Circuit vacated those convictions on appeal based on insufficient evidence.381
Although the panel majority disavowed reliance on the Dost factors and rejected the view that
“lascivious exhibition” could be based on the defendant’s intended sexual gratification,382 one
judge on the panel “vigorously” dissented, pointing out that “most circuits” view the Dost factors
as appropriate and several other circuits had read the relevant statute “not to require that
lasciviousness be exhibited by the minor.”383
Pretrial, Post-Conviction, and Compassionate Release
Judge Jackson has authored a number of detailed opinions addressing whether alleged or
convicted federal offenders should be released at various stages of the criminal justice process.
These opinions reflect careful attention to the particular factual and defendant-specific
circumstances weighing for and against release, as well as the differing burdens and presumptions
that apply depending on when release is sought, as required by the relevant federal statutes.
Many of Judge Jackson’s release decisions were rendered in the context of the COVID-19
pandemic; although she addressed the implications of the pandemic in the course of her opinions,
she did not rely on it to grant release automatically. For instance, in United States v. Lee, an
inmate in pretrial detention on federal weapons charges sought emergency release in March 2020
under legal provisions (1) permitting a detention determination to be reopened if new information

374 Id. at *4.
375 United States v. Hillie, 289 F. Supp. 3d 188, 190 (D.D.C. 2018), vacated in part, 14 F.4th 677 (D.C. Cir. 2021).
376 See 18 U.S.C. § 2256.
377 Hillie, 289 F. Supp. 3d at 195.
378 Id. at 195–96.
379 Id. at 197.
380 Id. at 200–01.
381 United States v. Hillie, 14 F.4th 677, 680 (D.C. Cir. 2021).
382 Id. at 687–93.
383 Id. at 696, 699, 702 (Henderson, J., dissenting).
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surfaces that has a “material bearing” on “whether there are conditions of release that will
reasonably assure the appearance of such person as required and the safety of any other person
and the community,” and (2) authorizing temporary release when “necessary for preparation of
[one’s] defense or for another compelling reason.”384 Judge Jackson wrote that there was no doubt
the spread of COVID-19 was new information and acknowledged that COVID-19 potentially
could be a “compelling reason” for release of “certain defendants” with, for instance, “underlying
medical conditions that make them especially vulnerable to the virus.”385 However, the opinion
concluded that the pandemic did not have a “material impact” on any of the factors that led the
inmate to be confined initially, and the danger posed by his release would still be “substantial.”386
Judge Jackson also held that the pandemic was an insufficiently compelling reason at the time to
release an “otherwise healthy and potentially violent” defendant “based solely on the generalized
risks that COVID-19 admittedly creates for all members of our society.”387
In contrast, two weeks after her opinion in Lee, Judge Jackson granted pretrial release to an
inmate detained on drug charges under the “material bearing” authority described above.388 Again
applying the factors bearing on the propriety of pretrial detention, Judge Jackson’s opinion
recognized, among other things, that several D.C. weapons charges against the inmate had
subsequently been dropped; there was little record evidence that the inmate would pose a threat to
the community; and the inmate had demonstrated an underlying medical condition (asthma) that
could heighten his risk of harm due to COVID-19 while in pretrial detention.389 As such, the
nominee ordered the inmate’s pretrial release on high-intensity supervision.390
Judge Jackson’s compassionate release decisions reflect similar attention to case-specific
circumstances. The federal compassionate release statute authorizes a federal court to reduce a
term of imprisonment if consistent with Sentencing Commission policy statements and statutory
sentencing factors when “extraordinary and compelling reasons warrant such a reduction,” among
other things.391 In at least two decisions in 2020, Judge Jackson granted compassionate release to
federal offenders based in part on the COVID-19 pandemic after examining factors specific to
each offender. She wrote in United States v. Johnson, for instance, that “the prevalence of a novel
and potentially deadly strain of coronavirus” in the inmate’s prison facility, coupled with a
preexisting medical condition that put him at higher risk of harm, qualified as an extraordinary
and compelling reason for sentence reduction; she also decided that “none of the considerations
concerning the purposes of punishment” in the statutory sentencing factors she was required to
consider called for maintenance of the original prison term.392 In so doing, Judge Jackson also

384 451 F. Supp. 3d 1, 5 (D.D.C. 2020) (quoting 18 U.S.C. § 3142(f), (i)).
385 Id. at 8–9.
386 Id. at 9.
387 Id. at 9; see also United States v. Wiggins, No. 19-CR-258, 2020 WL 1868891, at *6 (D.D.C. Apr. 10, 2020)
(recognizing grave risk of harm to inmates from COVID-19 and district court authority to grant release pending
sentencing for “exceptional reasons,” but concluding that individual assessment of danger from release and other
factors warranted continued confinement); United States v. Leake, No. 19-CR-194, 2020 WL 2331918, at *1 (D.D.C.
May 10, 2020) (reopening pretrial detention determination based on COVID-19 pandemic and substantiation of asthma
condition, but concluding that statutory factors still weighed in favor of detention and compelling reason for temporary
release had not been shown).
388 United States v. Dabney, No. 20-CR-027, 2020 WL 1867750, at *1 (D.D.C. Apr. 13, 2020).
389 Id. at *2–3.
390 Id. at *4.
391 18 U.S.C. § 3582(c).
392 464 F. Supp. 3d 22, 27 (D.D.C. 2020); see also United States v. Dunlap, 485 F. Supp. 3d 129 (D.D.C. 2020)
(reducing sentence after concluding that COVID-19 pandemic and underlying health conditions were extraordinary and
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agreed with other District of D.C. decisions (but in opposition to some decisions in other
jurisdictions) that a statutory exhaustion requirement for compassionate release motions could be
waived.393
In United States v. Sears, by contrast, Judge Jackson denied compassionate release of an inmate
with medical conditions, such as diabetes mellitus and asthma, that he claimed placed him at
greater risk of serious complications from COVID-19.394 The nominee’s opinion recognized that
the inmate’s “serious underlying medical conditions,” in “conjunction with the COVID-19
pandemic and the prevalence of that disease in the facility where he is housed,” qualified as
extraordinary and compelling reasons under the compassionate release statute justifying
release.395 However, the Judge’s opinion concluded that reduction of the inmate’s sentence would
not comport with statutory sentencing factors concerning the purposes of punishment, citing the
“extremely serious” nature of the inmate’s crime (distribution of child pornography), his high risk
of reoffending and lack of sex offender treatment while in federal custody, and the risk to the
community if he were released.396
In a compassionate release decision unrelated to the COVID-19 pandemic, Judge Jackson granted
release to a 72-year-old prisoner with serious medical conditions who fatally shot a U.S. Marshal
in 1971, but had since been deemed “completely reformed” by numerous federal corrections
officers.397 Because the offender in the case was serving time in federal prison for D.C. Code
offenses, Judge Jackson had to determine whether the federal or D.C. Code’s compassionate
release provision governed.398 Based on “foundational principles of federal-court jurisdiction,”399
the nominee’s opinion concluded that the federal provision applied and, in light of the offender’s
advanced age, long period of incarceration, and deterioration in health, he should be released.400
Asset Forfeiture
Judge Jackson’s judicial writing in asset forfeiture cases is limited, and thus it is difficult to draw
broad conclusions as to how she might evaluate legal issues in this area as a Supreme Court
Justice. That said, in one notable written opinion, Judge Jackson rejected what she deemed a
“novel” government effort to use the criminal forfeiture statutes to obtain a money judgment that,
in her view, would constitute “improper double counting.”401 In the case, United States v. Young,
the government seized over two kilograms of heroin from the defendant.402 After the defendant
was convicted of possession with intent to distribute that heroin, the government sought a
forfeiture order encompassing a money judgment in the amount of $180,000—“an amount equal
to the estimated value of the two kilograms of heroin that had been seized”—on the theory that

compelling reason, and that statutory factors did not call for continued incarceration).
393 Johnson, 464 F. Supp. 3d at 28.
394 No. 19-CR-021, 2020 WL 3250717, at *1 (D.D.C. June 16, 2020).
395 Id. at *2.
396 Id. at *2–3.
397 United States v. Greene, 516 F. Supp. 3d 1, 4 (D.D.C. 2021).
398 Id. at 5.
399 Id. at 15.
400 Id. at 28.
401 330 F. Supp. 3d 424, 426 (D.D.C. 2018).
402 Id.
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the defendant had used that amount of money “to facilitate the commission of his crime” within
the meaning of the relevant forfeiture statute.403
Judge Jackson issued an opinion in Young forcefully rejecting the government’s theory, writing
that there was “no statutory or common-sense justification for the government’s suggestion that it
is authorized both to seize contraband drugs and also to obtain a money judgment for the amount
that the defendant allegedly used to purchase those very same drugs.”404 The nominee wrote that
the request bore “no relationship to the usual purpose of money judgments in the criminal
forfeiture context, which is to prevent the dissipation of illegal proceeds by an offender who
might otherwise profit from his ill-gotten gains,” and had “absolutely no support in the text of the
applicable criminal forfeiture statute.”405 In reaching these conclusions, Judge Jackson examined
the underlying “concerns that Congress sought to address” through the relevant forfeiture
provisions, noting that the history of the provisions reflected congressional interest in preventing
criminal defendants from “evad[ing] the economic impact of criminal forfeiture by rendering . . .
forfeitable property unavailable.”406 But, according to the nominee, the amount of money the
government sought in the present case was not unavailable or “missing in any meaningful sense,”
as the government alleged that the defendant used it to purchase the heroin that had already been
seized.407 As such, in Judge Jackson’s view, the government’s effort ran into a “significant
double-counting problem” that is “considered especially taboo in the context of criminal
punishment,” and “[n]othing in the statute even remotely” suggested “that Congress intended this
result.”408
Sentencing
Before becoming a federal judge, Judge Jackson was involved in sentencing issues through her
work on the U.S. Sentencing Commission, a congressionally-created independent agency in the
judicial branch with the mission of providing certainty, consistency, and fairness in sentencing.409
From 2003 to 2005, Judge Jackson worked as assistant special counsel to the Commission, where
she drafted proposed amendments to the U.S. Sentencing Guidelines and analyzed federal
sentencing law and policy, among other things.410 Judge Jackson returned to the Commission in
2010 as a Vice Chair and Commissioner responsible for assessment, drafting, and enactment of
changes to the Guidelines.411 In that capacity, the nominee had a role in considering and
implementing federal sentencing policy on a number of notable issues.412

403 Id. at 427 (citing 21 U.S.C. § 853(a)(2)).
404 Id. at 430.
405 Id.
406 Id. at 431–32.
407 Id. at 433.
408 Id. at 435–36.
409 28 U.S.C. § 991. For an overview of the U.S. Sentencing Commission and its Sentencing Guidelines, see generally
CRS Report R41696, How the Federal Sentencing Guidelines Work: An Overview, by Charles Doyle.
410 Senate Judiciary Questionnaire, supra note 16, at 127.
411 Id. at 23; CRS Legal Sidebar LSB10702, Judge Ketanji Brown Jackson: Selected Primary Material, by Juria L.
Jones and Laura Deal.
412 See, e.g., U.S. SENTENCING COMM’N, PUBLIC MEETING MINUTES (Apr. 6, 2011) (supporting changing Guidelines
thresholds for crack cocaine and expressing view that issue of whether baseline should be higher than mandatory
minimums is a discussion that implicates offenses involving other controlled substances); Transcript of Record at 59–
60, U.S. Sentencing Commission (Apr. 10, 2014) (discussing proposed amendment to Drug Quantity Table in
Guidelines and explaining the nominee’s “strong belief that lowering the Base Offense Levels for drug penalties is
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For example, the Fair Sentencing Act of 2010 increased the quantities of crack cocaine required
to trigger mandatory minimum sentences and directed the Commission to promulgate consistent
Guidelines and conforming amendments.413 In implementing that directive, the Commission
evaluated whether to make retroactive the reductions to recommended crack cocaine sentences
under the relevant Guideline.414 Judge Jackson voted in favor of retroactivity.415 In a Commission
hearing on the issue, the nominee explained that her decision rested on several bases, including
hearing testimony; “thousands of letters and pieces of written public comment” received by the
Commission; an “analysis of the relevant data”; and “a thorough evaluation of the guideline
amendment in light of the established criteria by which the Commission makes retroactivity
determinations.”416 Judge Jackson also emphasized the Commission’s statutory duty under 28
U.S.C. § 994(u) to consider retroactivity when it reduces the term of recommended
imprisonment.417 The nominee also noted that “Congress’s clear purpose in enacting” the statute
was to require the Commission to make “immediate conforming reductions in the guidelines” to
address the fair sentencing issue of the disparity in sentences between crimes involving crack
versus powder cocaine.418 Judge Jackson explained her belief that federal judges were well
positioned to make case-specific judgments about a particular offender’s dangerousness, and to
reserve sentence adjustments for a particular defendant where it was “warranted and . . . the risk
to public safety is minimal.”419
In 2014, the Commission again faced a question involving retroactivity in the crack cocaine
context: whether to make retroactive a Guideline provision offering a sentence reduction for those
who offered substantial assistance to the government.420 Judge Jackson voted against the
amendment, noting her belief that it was inconsistent with statutes, the Guidelines, and
congressional intent, and would create unwarranted sentencing disparities between those already
sentenced and those sentenced in the future.421
Judge Jackson also had the opportunity to consider issues related to the Guidelines as a federal
judge. For instance, in United States v. Terry, Judge Jackson considered an inmate’s challenge to
a sentencing enhancement he received under the Guidelines’ career offender provision.422 The
inmate argued that the Supreme Court’s opinion in Johnson v. United States423—which
invalidated a provision of a federal statute on vagueness grounds—rendered his sentence pursuant

necessary in order for the guideline system to work properly”).
413 Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat 2372 (2010). For additional background, see generally
CRS Legal Sidebar LSB10611, Crack Cocaine Offenses and the First Step Act of 2018: Overview and Implications of
Terry v. United States, by Michael A. Foster and Joanna R. Lampe.
414 U.S. SENTENCING COMM’N, PUBLIC MEETING MINUTES (June 30 2011).
415 Id.
416 Transcript of Record at 12–13, U.S. Sentencing Commission (June 30, 2011).
417 Id. at 10–11.
418 Id. at 13.
419 Id. at 14–15.
420 Transcript of Record at 18–26, U.S. Sentencing Commission (Apr. 10, 2010).
421 Id.
422 No. 14-CR-00009, 2020 WL 7773389, at *1 (D.D.C. Dec. 29, 2020) (citing U.S. SENT’G GUIDELINES MANUAL
§ 4B1.1(a) (U.S. SENT’G COMM’N 2013)).
423 576 U.S. 591, 597 (2015).
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to a similar provision in the Guidelines unlawful.424 Judge Jackson disagreed based on subsequent
Supreme Court precedent clarifying that the Johnson holding does not apply to the Guidelines.425
In United States v. Crummy, Judge Jackson examined how certain Guidelines provisions should
apply to a defendant convicted of wire fraud conspiracy in connection with his role in wrongfully
procuring government contracts reserved for “small, disadvantaged businesses” through the Small
Business Administration’s Section 8(a) program.426 Crummy involved a question on which federal
circuits had split: whether Section 8(a) contracts count as government benefits when adjusting a
sentence to reflect the amount of loss to the government.427 The Guidelines specify that in the
context of government benefits the relevant loss is, at a minimum, the value of the benefits
obtained.428 Judge Jackson concluded that Section 8(a) contracts are not government benefits for
sentencing purposes, observing that Section 8(a) contracts are dissimilar to grants, loans, and
other items listed as benefits by the Guidelines.429 Instead, the nominee concluded that a separate
provision of the Guidelines applied to the calculation of loss for Section 8(a) contracts.430
In addition to Guidelines issues, Judge Jackson’s sentencing-related opinions have also included
matters such as restitution. In United States v. Fields, Judge Jackson rejected a defendant’s claim
for post-sentence relief from a judgment of restitution.431 The nominee concluded that the
defendant failed to meet her statutory burden of establishing a material change in economic
circumstance for an adjustment to restitution or inability to pay interest on the restitution, as
required for a waiver of interest.432
Judge Jackson’s varied experiences with sentencing issues arose during questioning in her
nomination hearing for the D.C. Circuit. The nominee’s statements reinforced the view she
expressed before the Sentencing Commission that federal judges are able to make appropriate
case-specific determinations in sentencing. In response to a question from one Senator, Judge
Jackson contrasted herself with another jurist who believes that judicial discretion should be
further constrained on sentencing issues.433 The nominee said it is her “hope and faith” that
“judges will constrain themselves to an extent when they get the information that they need.”434
Rights of the Accused
Judge Jackson authored several opinions in cases addressing the rights of suspected or accused
criminal offenders, including on charging issues and under the Constitution’s Fourth and Fifth
Amendments. In these cases, she has required the government to meet its threshold obligations,
but has also ruled in the government’s favor when, in her view, the circumstances warranted it.

424 Terry, 2020 WL 7773389, at *1.
425 Id. at *3.
426 249 F. Supp. 3d 475, 476–77 (D.D.C. 2017).
427 Id. at 487.
428 Id. at 481 (citing U.S. SENT’G GUIDELINES MANUAL § 2B1.1 cmt. n.3(F)(ii) (U.S. SENT’G COMM’N)).
429 Id. at 482.
430 Id. at 481 (citing U.S. SENT’G GUIDELINES MANUAL § 2B1.1 cmt. n.3(E) (U.S. SENT’G COMM’N)).
431 No. 99-CR-0286, 2020 WL 32990, at *3 (D.D.C. Jan. 2, 2020).
432 Id.
433 D.C. Circuit Confirmation Hearing, supra note 88.
434 Id.
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In United States v. Hillie, Judge Jackson dismissed several child-pornography counts of an
indictment that she concluded “fail[ed] to provide minimally required factual information.”435 The
nominee emphasized that a facially valid indictment is needed to guarantee “core constitutional
protections” of notice under the Sixth Amendment and to guard against “abusive criminal
charging practices” under the Fifth Amendment.436 She concluded that the indictment in the case
“clearly fail[ed] to satisfy these basic constitutionally mandated principles” by omitting factual
allegations that would apprise the defendant of the nature of the charges against him.437
According to Judge Jackson, the counts at issue simply repeated the “generic words” of the child
pornography statutes at issue, which she viewed as insufficient given the broad framing of those
statutes.438 This lack of specificity, she wrote, rendered the charging document “deficient with
respect to the Fifth Amendment’s right to be tried only upon charges found by a grand jury” and
also risked subjecting the defendant to multiple punishments for the same offense or “future
prosecution for conduct arising out of these same charges” in violation of the Fifth Amendment’s
Double Jeopardy Clause.439
In a case addressing different Fifth Amendment protections, United States v. Richardson, Judge
Jackson denied a motion to suppress statements that the defendant claimed were the product of
custodial interrogation by law enforcement without constitutionally-required Miranda
warnings.440 The defendant was detained in the living room of the apartment she occupied with
her boyfriend while law enforcement officers searched the apartment for drugs and guns.441 In the
course of the search, an officer discovered a handgun hidden in a laundry basket, and the
defendant made several statements that the handgun was hers.442 Judge Jackson determined that it
was “abundantly clear” that the defendant was in custody when she made the incriminating
statements.443 However, the nominee ultimately concluded that Miranda warnings were not
required because the defendant “was not being subjected to police interrogation at the time she
made the statements,”444 based on testimony indicating the defendant volunteered the statements
in an atmosphere that was neither “inherently coercive” nor designed “to elicit an incriminating
response” from her.445
Judge Jackson also issued a number of opinions on Fourth Amendment issues. For example, in
United States v. Fajardo Campos, the nominee denied a defendant’s motion to suppress electronic
communications that had been intercepted from the defendant’s mobile device pursuant to Title
III of the Omnibus Crime Control and Safe Streets Act of 1968.446 Fajardo Campos raised a
matter of first impression: whether a court with jurisdiction to approve the interception of wire

435 227 F. Supp. 3d 57, 62 (D.D.C. 2017).
436 Id. at 69–70.
437 Id. at 72.
438 Id. at 73, 76.
439 Id. at 78–79. Judge Jackson dismissed the relevant counts without prejudice. Id. at 82. The government obtained a
superseding indictment and the defendant was eventually convicted of violating the child-pornography statutes at issue,
among other things, although those convictions were recently vacated on appeal as described previously. See
“Substantive Criminal Law” supra.
440 36 F. Supp. 3d 120, 122 (D.D.C. 2014).
441 Id. at 123–26.
442 Id.
443 Id. at 129.
444 Id. at 131.
445 Id.
446 No. 1:16-CR-00154, 2018 WL 6448633, at *1 (D.D.C. Dec. 10, 2018).
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communications (like telephone calls) may also have jurisdiction to approve the interception of
electronic communications (like texts and emails).447 Judge Jackson concluded that such
“listening post” jurisdiction encompassed electronic communications, finding no “principled
basis for distinguishing electronic communications from wire communications in this respect.”448
The nominee also held that the government could establish the statutory requirement that
interception was necessary merely by showing that traditional investigative techniques had failed
and would fail “‘to disclose the full nature and extent of the conspiracy’ of which the target is
alleged to be a part.”449
Several of Judge Jackson’s other Fourth Amendment opinions have involved motions to suppress
physical evidence. In United States v. Miller, Judge Jackson denied a defendant’s motion to
suppress a firearm he claimed was the product of an unlawful seizure.450 The defendant argued he
had been unlawfully seized when police officers “approached him in an unmarked vehicle while
he was walking down the sidewalk and repeatedly asked him whether or not he was carrying a
gun.”451 Judge Jackson disagreed, concluding that under binding precedent, the “Fourth
Amendment seizure occurred only when [the officer] physically restrained and arrested [the
defendant] following [the defendant’s] admission that he had a gun, and at that point, [the officer]
plainly had probable cause to justify Miller’s arrest.”452
In United States v. Leake, Judge Jackson denied the suppression motion of a defendant who
claimed that officers violated his Fourth Amendment rights when they entered his apartment
building’s laundry room, arrested him without sufficient cause, and used excessive force.453 Judge
Jackson concluded that the defendant lacked standing to challenge the officers’ entry to the
apartment building’s laundry room because it was a space in which he lacked a common law
property-interest, the right to exclude individuals, or a reasonable expectation of privacy.454 The
nominee also determined that when one of the officers grabbed the defendant’s arm, it amounted
to an investigatory stop justified by reasonable suspicion of criminal activity given that the
defendant was standing in a suspicious position holding a “small clear plastic baggie in his
hand.”455 Judge Jackson also determined that the officers did not use excessive force by tackling
the defendant when he tried to flee (and then fight) the officers.456
In United States v. Turner, Judge Jackson denied a defendant’s motion to suppress evidence as the
fruit of a defective search warrant.457 Judge Jackson concluded that the information in the
warrant—a confidential informant’s reports of drug activity by the defendant in the place to be
searched—sufficiently supported probable cause.458

447 Id.
448 Id.
449 Id. (quoting United States v. Brown, 823 F.2d 591, 598 (D.C. Cir. 1987)).
450 No. 16-CR-0072, 2016 WL 8416761, at *1 (D.D.C. Nov. 11, 2016), aff’d, 739 F. App’x 6 (D.C. Cir. 2018).
451 Id.
452 Id.
453 No. 19-CR-194, 2020 WL 3489523, at *1 (D.D.C. June 26, 2020).
454 Id. at *7–8.
455 Id. at *10.
456 Id. at *12.
457 United States v. Turner, 73 F. Supp. 3d 122, 124 (D.D.C. 2014).
458 Id. at 126.
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Environmental Law
During her tenure on the District of D.C., Judge Jackson presided over numerous environmental
cases addressing a wide range of issues. Many of these cases addressed the scope of agency
authority under an environmental statute or the legality of a specific agency action, and have also
implicated broader questions of administrative law, such as standing to sue and standards for
judicial review.459
As with other areas of law discussed in this report, many of Judge Jackson’s rulings are focused
on the specific facts at issue in a given case, making it difficult to draw generalizations about her
approach to substantive environmental law or review of federal agency action more broadly. For
this reason, it is difficult to predict the impact her confirmation would have on the Supreme
Court’s environmental law jurisprudence. The nominee’s analysis tends to focus closely on
consideration of applicable statutory and regulatory text, as well as evaluation of whether the
litigants have satisfied relevant procedural requirements. Judge Jackson’s environmental law
opinions do not appear to show a clear orientation in favor of environmental groups, business
interests, or the government.
In one case that went to the Supreme Court, Judge Jackson addressed whether the Territory of
Guam could recoup costs from the United States for the cleanup of a contaminated landfill under
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).460
CERCLA provides two different avenues for parties to recover cleanup costs from other
potentially responsible parties: cost-recovery actions and contribution actions.461 These two
avenues are mutually exclusive; if a party has “resolved” its liability to the United States for some
or all of a response action, it must proceed with a contribution action and is barred from
proceeding with a cost-recovery action.462
In Guam v. United States, Judge Jackson ruled that Guam could pursue a cost-recovery claim
against the United States, despite an earlier consent decree addressing Clean Water Act violations
at the landfill.463 Analyzing the plain meaning of the relevant statutory terms and considering
relevant caselaw and factual history, the nominee held that the earlier consent decree did not
“resolve” Guam’s liability for purposes of triggering a contribution claim.464 On appeal, the D.C.
Circuit acknowledged that Judge Jackson’s opinion was “thorough,” but reversed and remanded
the case, holding that Guam could not seek cost recovery, and that its contribution claim was
time-barred.465 However, in a unanimous opinion, the Supreme Court reversed the D.C. Circuit’s
judgment, agreeing with Judge Jackson that Guam’s cost-recovery claim could proceed.466
In another case , Judge Jackson ruled in favor of the government in a challenge to the waiver of
environmental laws in connection with the construction of a stretch of border wall in New

459 See “Standing” and “Administrative Law” supra.
460 Guam v. United States, 341 F. Supp. 3d 74, 76–77 (D.D.C. 2020), rev'd, 950 F.3d 104 (D.C. Cir. 2020), rev'd, 141
S. Ct. 1608 (2021).
461 42 U.S.C. §§ 9607(a)(4)(B), 9613(f).
462 See Whittaker Corp. v. United States, 825 F.3d 1002, 1007 (9th Cir. 2016) (“[E]very federal court of appeals to
consider the question . . . has said that a party who may bring a contribution action for certain expenses must use the
contribution action, even if a cost recovery action would otherwise be available.”).
463 Guam, 341 F. Supp. 3d at 84.
464 Id. at 92–97.
465 Guam v. United States, 950 F.3d 104 (D.C. Cir. 2021).
466 Guam v. United States, 141 S. Ct. 1608, 1611 (2021).
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Mexico. In Center for Biological Diversity v. McAleenan, an environmental advocacy group
challenged DHS’s waiver of 25 statutes, including the National Environmental Policy Act
(NEPA) and the Endangered Species Act (ESA), pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).467 IIRIRA requires
DHS to construct hundreds of miles of new fencing and permits DHS to waive “all legal
requirements” necessary to ensure expeditious construction of the security barriers.468 Section
102(c) also limits federal court jurisdiction to claims alleging that DHS violated the Constitution
in acting pursuant to IIRIRA, and precludes all other claims.469
In granting the government’s motion for summary judgment, Judge Jackson held that the
plaintiffs failed to state plausible constitutional claims regarding the waiver’s permissibility,
particularly in light of a persuasive prior District of D.C. ruling.470 Additionally, and focusing on
the text of IIRIRA Section 102(c)(2), the nominee ruled that the court lacked jurisdiction to
review the plaintiffs’ claims that the DHS Secretary acted in excess of his delegated powers
because such ultra vires claims were barred under the statute.471
Standing and Procedural Issues in Environmental Law Cases
Environmental cases often turn on whether a plaintiff has the right to bring a lawsuit in the first
place. Judge Jackson has authored opinions in various district court cases that addressed whether
a plaintiff had standing to bring a lawsuit challenging an environmental regulation or federal
agency action. For example, in New England Anti-Vivisection Society v. U.S. Fish and Wildlife
Service (FWS), discussed above, Judge Jackson ruled that an animal welfare organization lacked
standing to challenge a wildlife export permit to transfer chimpanzees to a zoo in the United
Kingdom.472 Similarly, in 2015, Judge Jackson held that a coalition of associations and industry
groups did not have standing to challenge a U.S. Forest Service rule addressing management
planning for national forests.473 The nominee held that the plaintiffs failed to demonstrate the rule
would actually cause a harmful reduction in timber harvest and land use, and thus failed to
identify an injury in fact.474
By contrast, Judge Jackson found that plaintiffs in a Clean Air Act-related dispute did have
standing. The plaintiffs represented a steel manufacturing plant that had asked the U.S.
Environmental Protection Agency to object to a Clean Air Act permit for another nearby facility.
In plaintiffs’ view, granting the permit would have increased area-wide emissions in a way that
would require them to reduce their own emissions to comply with applicable statutory

467 404 F. Supp. 3d 218, 223–24 (D.D.C. 2019); Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. No. 104-208, div. C, § 102(b), as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, div. B,
§ 102; the Secure Fence Act of 2006, Pub. L. No. 109-367, § 3; and the Consolidated Appropriations Act, 2008 Pub. L.
No. 110-161, div. E, § 564(a) (codified at 8 U.S.C. § 1103 note).
468 IIRIRA § 102(c)(1).
469 Id.
470 Ctr. for Biological Diversity, 404 F. Supp. 3d at 244–50 (discussing Defenders of Wildlife v. Chertoff, 527 F. Supp.
2d 119, 120–21 (D.D.C. 2007)).
471 Id. at 237–42.
472 208 F. Supp. 3d 142, 148 (D.D.C. 2016); see “Standing” supra.
473 Fed. Forest Res. Coal. v. Vilsack, 100 F. Supp. 3d 21, 26 (D.D.C. 2015).
474 Id. at 38.
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requirements.475 Judge Jackson concluded that the plaintiffs alleged a concrete, particularized, and
imminent injury, and that the suit could proceed.476
Scope of Agency Authority and Obligations
Some of Judge Jackson’s rulings in environmental cases relate to the scope of an agency’s
obligations as prescribed by statutes and regulations. As one example, in Center for Biological
Diversity v. Zinke, Judge Jackson dismissed a lawsuit seeking to compel the Department of the
Interior to review its procedures for implementing NEPA.477 NEPA requires agencies to evaluate
the environmental impacts of certain “major federal actions.”478 After the Deepwater Horizon oil
spill, environmental groups sued to force the Department to review its procedures for
implementing the statute, and specifically its practice of issuing offshore oil and gas drilling
permits without first conducting a site-specific NEPA review. Judge Jackson held that while the
agency had an “ongoing obligation” to review its NEPA policies, the regulations governing that
review did not require the agency to complete its review, announce the results, or actually revise
its policies.479 The nominee also held that an agency’s obligation to review its NEPA policies did
not constitute a “discrete” agency action that a federal court could supervise in performing its
judicial-review function under the APA.480
In another example, the nominee denied a motion for a preliminary injunction in a case
challenging whether the government had adequately assessed the environmental impacts of a
domestic oil pipeline on mostly privately-owned land.481 While her decision examined all of the
factors used to assess whether a preliminary injunction is warranted, Judge Jackson focused in
particular on the likelihood of success on the merits, concluding that the plaintiffs failed to show
that either NEPA or the Clean Water Act required further environmental review of the project.482
Judge Jackson wrote: “While the Court is aware of the potential negative environmental
consequences that can accrue from the construction and operation of a large oil pipeline, it is also
hesitant to weigh these possibilities too heavily without more evidence linking them to this
particular pipeline project.”483
In a later decision in the same case, Judge Jackson ruled in favor of the government, holding there
was no obligation on federal agencies to review the pipeline project’s environmental impact, in
part because there had been no “major federal action” that would trigger NEPA review.484 The
nominee described NEPA as a “means of informing agency officials about the environmental
consequences of major actions that the federal government is poised to take,” rather than “a

475 Nucor Steel – Ark. v. Pruitt, 246 F. Supp. 3d 288 (D.D.C. 2017).
476 Id. at 303. See also Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp. 3d 35, 56–58 (D.D.C. 2015)
(holding that developer had standing to challenge rule including its property in the designation of critical habitat
pursuant to the Endangered Species Act).
477 260 F. Supp. 3d 11, 16 (D.D.C. 2017).
478 42 U.S.C. § 4332(2)(C).
479 Ctr. for Biological Diversity, 260 F. Supp. 3d at 22–27.
480 Id. at 16.
481 Sierra Club v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 9, 13 (D.D.C. 2013).
482 Id. at 25–38.
483 Id. at 43.
484 Sierra Club v. U.S. Army Corps of Eng’rs, 64 F. Supp. 3d 128, 144–50 (D.D.C. 2014), aff’d, 803 F.3d 31 (D.C. Cir.
2015).
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mechanism for instituting federal evaluation and oversight of a private construction project that
Congress has not seen fit to authorize the federal government to regulate.”485
Judge Jackson’s analysis in cases considering the validity of agency action has often involved a
close reading of statutory and regulatory text. In addition to Guam, discussed above, Judge
Jackson issued two decisions reviewing a FWS rule designating part of a developer’s property as
a critical habitat for an endangered shrimp species pursuant to the ESA. First, in 2015, she upheld
FWS’s economic analysis and its decision not to conduct an analysis of the challenged
designation under NEPA, but she also held that additional fact-finding was necessary to evaluate
whether all of the land that FWS identified as watershed was properly designated.486 In a
subsequent decision in 2018, Judge Jackson held that the FWS’s critical habitat designation,
which included both a pool occupied by the shrimp and upland watershed areas for the pool, was
improper.487 Concluding that FWS unreasonably determined that “occupied” critical habitat
included areas where the shrimp were not located, Judge Jackson noted that “[t]here is nothing
about the ESA’s use of ‘occupied,’ or the plain meaning of that term, or, quite frankly, common
sense, that permits this result.”488 Judge Jackson further held that FWS failed to make the
statutorily required findings necessary for designating the land as “unoccupied” critical habitat.489
First Amendment
As discussed above,490 Judge Jackson has not confronted many open constitutional questions
during her judicial tenure; however, she did resolve a few cases dealing with the First
Amendment’s Free Speech Clause. The nominee does not appear to have issued any opinions
interpreting other provisions of the First Amendment,491 although in her confirmation hearing to
the D.C. Circuit, she stated that “religious liberty . . . is a foundational tenet of our entire
government,” citing Supreme Court precedent interpreting the Constitution.492
Perhaps the nominee’s most notable First Amendment case is American Meat Institute v. USDA,
in which she rejected a free speech challenge to a USDA rule requiring “country-of-origin
labeling” for certain commodities.493 Generally, commercial disclosure requirements are subject
either to an intermediate level of constitutional review, or to a more lenient standard known as
Zauderer review.494 The more lenient standard applies only to a subset of commercial disclosure

485 Id. at 157.
486 Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp. 3d 35, 55–56 (D.D.C. 2015).
487 Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 344 F. Supp. 3d 355, 359 (D.D.C. 2018).
488 Id. at 370.
489 Id. at 374–78. As another example, Judge Jackson granted summary judgment in favor of the government in a
challenge to the National Oceanic and Atmospheric Administration’s assessment of a $127,000 civil penalty for
violating the Marine Mammal Protection Act (MMPA). Pac. Ranger, LLC v. Pritzker, 211 F. Supp. 3d 196, 201–02
(D.D.C. 2016). Judge Jackson concluded that the plain text of a safe-harbor provision in the MMPA applied only to
accidental or non-intentional takings (defined as harassing, hunting, capturing, or killing) of any marine mammal in the
course of commercial fishing operations, and did not apply when a commercial fisherman knowingly set purse seine
fishing gear on whales. Id. at 219.
490 See “Constitutional Interpretation” supra.
491 Cf. Tyson v. Brennan, 306 F. Supp. 3d 365, 366 (D.D.C. 2017) (denying motion to dismiss a religious
discrimination claim brought under Title VII of the Civil Rights Act of 1964).
492 D.C. Circuit Confirmation Hearing, supra note 88.
493 968 F. Supp. 2d 38, 42 (D.D.C. 2013), aff’d, 746 F.3d 1065 (D.C. Cir. 2014).
494 Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 651 (1985); see generally CRS Report R45700, Assessing
Commercial Disclosure Requirements under the First Amendment, by Valerie C. Brannon.
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requirements, and comes from a case in which the Supreme Court upheld an advertising
regulation that compelled only “factual and uncontroversial information about the terms under
which . . . services [were] available.”495 Judge Jackson had to determine which of these two
standards governed review of the USDA’s labeling requirement. The nominee also had to
interpret ambiguous D.C. Circuit precedents further limiting Zauderer review only to disclosure
requirements that targeted deceptive or possibly deceptive speech.496 Ultimately, she concluded
that the more lenient standard applied, following a broader application of Zauderer, and held that
the regulation was likely constitutional.497
Judge Jackson’s district court ruling in American Meat Institute was affirmed by a three-judge
panel of the D.C. Circuit.498 The First Amendment ruling was later confirmed by the D.C. Circuit
sitting en banc in an opinion holding that Zauderer “reache[s] beyond problems of deception.”499
The ruling also appears consistent with the views of the Justice that Judge Jackson is nominated
to replace: Justice Breyer has expressed concern about subjecting “ordinary” disclosure
requirements to heightened scrutiny, cautioning against an approach that would “create serious
problems” by “threaten[ing] considerable litigation over the constitutional validity of much,
perhaps most, government regulation.”500
A number of other First Amendment claims Judge Jackson resolved involved more
straightforward applications of existing precedent. For example, the nominee relied on Supreme
Court opinions and other federal court rulings to hold that a panhandling ordinance might be an
unconstitutional content-based regulation of speech.501 In another case, Judge Jackson held that a
person arrested for using profanity in a public park sufficiently pled a violation of his
constitutional rights because an arrest for speech that did not “implicate a substantial likelihood of
violence, provocation, or disruption” violated the First Amendment.502
Finally, one issue that has garnered increased attention in recent years is First Amendment
limitations on defamation liability.503 Broadly, while the First Amendment allows liability for
defamatory statements, the Constitution sets a higher standard for public officials attempting to
prove that a statement about their official conduct was defamatory.504 According to the Supreme
Court, this higher standard is necessary to safeguard “debate on public issues” and the right to
criticize government action.505 The Court subsequently extended this heightened standard from

495 Zauderer, 471 U.S. at 651.
496 Am. Meat Inst., 968 F. Supp. 2d at 49.
497 Id. at 50.
498 Am. Meat Inst. v. U.S. Dep’t of Agric., 746 F.3d 1065, 1068 (D.C. Cir. 2014).
499 Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 20 (D.C. Cir. 2014) (en banc).
500 Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2380 (2018) (Breyer, J., dissenting).
501 Brown v. Gov’t of D.C., 390 F. Supp. 3d 114, 117 (D.D.C. 2019) (denying motion to dismiss).
502 Patterson v. United States, 999 F. Supp. 2d 300, 313 (D.D.C. 2013) (denying motion to dismiss civil constitutional
claims on the basis of qualified immunity); see also “Civil Rights and Qualified Immunity” supra.
503 See, e.g., James Freeman, Sarah Palin, the New York Times and the Oops Defense, WALL ST. J. (Feb. 9, 2022),
https://www.wsj.com/articles/sarah-palin-the-new-york-times-and-the-oops-defense-11644457557; Genevieve Lakier,
Is the Legal Standard for Libel Outdated? Sarah Palin Could Help Answer, WASH. POST (Feb. 11, 2022),
https://www.washingtonpost.com/outlook/2022/02/03/sullivan-nyt-palin-free-press/.
504 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). Public officials must show that an allegedly defamatory
statement “was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.” Id.
505 Id. at 270, 279–80.
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government officials to all “public figures.”506 Two sitting Supreme Court Justices have criticized
this public-figure doctrine, suggesting it is inconsistent with original understandings of the First
Amendment.507
Judge Jackson applied this heightened standard in Zimmerman v. Al Jazeera America, a lawsuit in
which two Major League Baseball players claimed that a documentary purporting to investigate
“doping” in professional sports contained false and defamatory statements about the players’
alleged use of performance-enhancing drugs.508 There was no dispute that the players were public
figures who had to meet the heightened standard for defamation.509 The nominee allowed the
players’ defamation claim against the film’s producers to proceed, concluding the players met the
heightened pleading standard.510 She dismissed other claims, including a claim against the
producers for a news article and claims against the film’s narrator.511 These dismissals did not rely
on the heightened standards for public figures; instead, Judge Jackson held that the claims did not
satisfy the requirements for an ordinary defamation claim.512 The nominee’s opinion applied
binding precedent without raising questions about its validity, as is common for district court
judges, particularly if the parties do not challenge the governing standard.513
Immigration
Judge Jackson has also written few opinions addressing immigration law topics. This relative
dearth of opinions is perhaps not surprising, given how Congress has structured judicial review of
immigration matters. Federal district courts do not review orders of removal entered in particular
immigration proceedings; such review occurs, instead, in the court of appeals for the judicial
circuit in which the immigration judge completed proceedings.514 For nearly all of her judicial
tenure, Judge Jackson served as a federal district court judge,515 a capacity in which she was not
likely to consider individual immigration matters. Certain general, facial attacks to processes used
by agencies involved in the administration of immigration laws are not channeled to the courts of
appeals, however, and may be raised in district court.
Judge Jackson has written, among others, three opinions considering challenges to DHS’s
implementation of its expedited removal authority.516 In two of three cases, Judge Jackson ruled

506 See Gertz v. Robert Welch, 418 U.S. 323, 335 (1974).
507 See Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from denial of certiorari); id. at 2429–
30 (Gorsuch, J., dissenting from denial of certiorari). Cf. Elena Kagan, A Libel Story: Sullivan Then and Now, 18 L. &
SOC. INQUIRY 197, 205 (1993) (asking whether “the Court . . . has extended the Sullivan principle too far”).
508 246 F. Supp. 3d 257, 263 (D.D.C. 2017). The complaint also alleged false light invasion of privacy claims, which
were subject to similar First Amendment considerations. Id. at 274.
509 Id. at 263.
510 Id. at 283.
511 Id. at 264.
512 See id. at 275–76.
513 Quoting D.C. Circuit precedent, Judge Jackson did note that “the ‘standard of actual malice is a daunting one,’ as it
should be, because defamation claims necessarily implicate a defendant’s First Amendment rights.” Id. at 284
(emphasis added) (quoting Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 590 (D.C. Cir. 2016)).
514 8 U.S.C. § 1252(b)(2); see also id. § 1252(b)(9) (“Judicial review of all questions of law and fact . . . arising from
any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial
review of a final order under this section.”).
515 See “Biographical Information” and “Evaluating the Work of a U.S. District Judge” supra.
516 See 8 U.S.C. § 1252(e)(3) (permitting judicial review in the District of D.C. of determinations under expedited
removal authority “and its implementation,” but limited to whether, among other things, various agency actions to
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in favor of challenges to DHS’s implementation of the expedited removal authority brought by
non-U.S. nationals or associations suing on their behalf. This sample size is too small to support
firm predictions about how she might approach immigration law matters more generally, but the
cases nonetheless bear on an area of law that is of perennial interest to Congress.
A person who is subject to a removal proceeding receives notice of the proceedings517 and a
hearing before an immigration judge, during which the person may be represented by counsel and
is permitted to challenge the government’s basis for removal.518 A person designated by DHS as
subject to expedited proceedings, by contrast, may be ordered removed “without further hearing
or review” if an immigration officer determines the person “is inadmissible because she does not
have a valid entry document or other suitable travel document, or because she has obtained a visa
through misrepresentation.”519 Prior to 2019, DHS designated as subject to expedited removal
only a subset of the statutory category of persons potentially removable under expedited
procedures—generally those arriving at a port of entry or apprehended near the border shortly
after surreptitiously entering the United State.520 In 2019, DHS expanded its designations to
include all persons in the statutory category, to include generally all non-U.S. nationals who had
been present in the country for less than two years and either did not obtain valid entry documents
or procured their admission through fraud or misrepresentation.521
In Make the Road New York v. McAleenan, Judge Jackson preliminarily enjoined DHS’s 2019
expanded designation.522 She concluded that the plaintiff associations would likely prevail on,
among others, their claim that DHS’s designation was arbitrary and capricious, because in
arriving at its designation DHS considered “only the perceived shiny bright spots” of an expanded
designation.523 DHS made no attempt to “forecast the storm clouds” the new designation might
spawn.524 Judge Jackson wrote that “an agency cannot possibly conduct reasoned, non-arbitrary
decision making concerning policies that might impact real people and not take such real life
circumstances into account.”525 These unexamined circumstances included alleged flaws with the
existing expedited removal process,526 the “real-world consequences” of the designation for those
potentially subject to the proceedings,527 and the prospect that removal would “cause trauma” to
both persons removed—“who may have been living and working in the United States for a

implement the expedited removal authority are “in violation of law”).
517 Id. § 1229(a).
518 Id. § 1229a(a), (b)(4).
519 Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 619 (D.C. Cir. 2020) (internal quotation marks omitted).
520 See, e.g., Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,878 (Aug. 11, 2004) (designating, for
expedited removal purposes, an alien who is inadmissible and who, not being admitted or paroled, is encountered by an
immigration officer within 100 miles of the U.S. international land border who fails to satisfy an immigration officer
that he or she has been physically present in the United States continuously for 14 days prior to the encounter).
521 Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409, 35,409 (July 23, 2019).
522 405 F. Supp. 3d 1, 59 (D.D.C. 2019), rev’d and remanded sub nom. Make the Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C.
Cir. 2020). The D.C. Circuit reversed Judge Jackson’s entry of a preliminary injunction in favor of plaintiffs,
concluding, in part, that DHS’s 2019 designation was not subject to review under the APA. See Make the Rd. N.Y., 962
F.3d at 635. See also “Civil Procedure and Jurisdiction” supra.
523 Make the Rd. N.Y., 405 F. Supp. 3d at 56.
524 Id.
525 Id. at 55.
526 Id. at 53.
527 Id. at 56–57 (listing burdens DHS’s expanded designations would impose on noncitizens as including having to
“avoid immigration officials entirely” and “carry around documents establishing one’s continuous presence or lawful
status at all times in perpetuity”).
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significant period of time”—and to their “households, neighborhoods, communities, workplaces,
cities, counties, and States.”528
In a second case, Kiakombua v. Wolf, Judge Jackson considered DHS’s processing of asylum
claims from persons subjected to expedited removal.529 If a noncitizen facing expedited removal
expresses an intent to apply for asylum or a fear of persecution, the person is referred to an
asylum officer for a credible-fear interview intended to screen for potentially meritorious asylum
claims.530 In Kiakombua, plaintiffs challenged a U.S. Citizenship and Immigration Services
training manual that instructed screening officers on how to conduct those interviews. Agreeing
with the plaintiffs, Judge Jackson explained that the manual’s flaws included importing into the
credible-fear interview requirements that properly applied only in the second step of the asylum
process, a “full hearing before an immigration judge.”531
In a third case, however, Las Americas Immigrant Advocacy Center v. Wolf, Judge Jackson
dismissed a lawsuit challenging programs established in 2019 to speed up the processing of
asylum claims in expedited proceedings.532 Plaintiffs claimed that the new programs interfered
with asylum seekers’ statutory opportunity to consult with counsel prior to a credible-fear
interview. Under the challenged programs, detained asylum seekers received one full calendar
day to prepare for credible-fear interviews and were held in Customs and Border Protection
(CBP) facilities.533 CBP facilities offered fewer opportunities for asylum seekers to consult with a
persons of their choosing about the asylum process—including an attorney—than did the
Immigration and Customs Enforcement (ICE) facilities where they were held before DHS
instituted the new programs.534
Though Judge Jackson had “no doubt” that detainees facing these conditions “are severely limited
in their ability to locate and communicate with counsel,”535 she concluded the statute made the
consultation right “subordinate” to Congress’s goal of holding prompt removal proceedings and
that the scope of the consultation right was determined by the facility holding the noncitizen.536
Judge Jackson decided that Congress had not plainly spoken to the question of where
“noncitizens subject to expedited removal are to be detained,” whether in CBP or in ICE
facilities.537 Given this silence, DHS could reasonably conclude that CBP facilities provided
“legally sufficient” consultation opportunities prior to a credible fear interview, particularly
because Congress clearly intended that expedited removal processes would be “highly truncated
and subject to fewer procedural guarantees than formal removal proceedings.”538

528 Id. at 58–59.
529 498 F. Supp. 3d 1, 41–49 (D.D.C. 2020).
530 8 U.S.C. § 1225(b)(1)(A)(ii).
531 Kiakombua, 498 F. Supp. 3d at 40, 45 (stating that the manual’s directive requiring a noncitizen to establish “facts”
that “satisfy every element” of an asylum claim during the initial credible-fear interview was “tantamount to making
asylum applicants prove that they are a refugee during their credible fear interviews, even though Congress has made
abundantly clear that a noncitizen need only carry that burden after she has shown a credible fear of persecution and
has been placed in full removal proceedings” (internal quotation marks omitted)).
532 507 F. Supp. 3d 1, 40 (D.D.C. 2020).
533 Id. at 9.
534 Id. at 12–14.
535 Id. at 18.
536 Id. at 25.
537 Id. at 26.
538 Id. at 29–30.
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Labor Law
Judge Jackson has authored several decisions involving labor law, including her first decision as
an appeals court judge.539 As with her employment cases,540 her labor decisions frequently turn on
matters of procedure. In particular, several decisions address whether the parties have attempted
to resolve their dispute using agreed-upon mechanisms, such as arbitration, prior to filing suit.
Judge Jackson’s decisions in these cases demonstrate a respect for prior agreements to resolve
disputes outside of court. In a dispute between two unions affiliated with the AFL-CIO, the
nominee granted summary judgment for the union defendant after determining that both unions
were bound by an article in the AFL-CIO constitution requiring arbitration in conflicts between
affiliates.541 Similarly, in Unite Here Local 23 v. I.L. Creations of Maryland, Inc., Judge Jackson
rejected an employer’s motion to vacate an award granted at arbitration.542 She took the additional
step of awarding the union attorneys’ fees, determining that by requiring the union to obtain a
court order to enforce the arbitration award, the employer’s position “would completely
undermine the purposes of arbitration.”543
Judge Jackson’s decision in District No. 1, Pacific Coast District, Marine Engineers’ Beneficial
Ass’n, AFL-CIO v. Liberty Maritime Corp. provides additional insight.544 In Liberty Maritime,
both the plaintiff union and defendant employer filed cross-motions for summary judgment in
claims arising from the parties’ collective bargaining negotiations. The central question at issue
was whether the parties were required to arbitrate their claims under the parties’ collective
bargaining agreement (CBA).545 This question, in turn, depended on whether the CBA expired
during the pendency of the parties’ negotiations.546 Rather than resolve this question, Judge
Jackson determined that questions of interpretation, including whether the CBA had expired, were
themselves questions for arbitration, in accordance with the CBA’s “broad” arbitration clause.547
Accordingly, Judge Jackson’s decisions may indicate a reluctance to involve federal courts in
matters that the parties have previously committed to resolve in arbitration.
In American Federation of Government Employees, AFL-CIO v. Trump, a case involving a
challenge to certain executive orders relating to the federal civil service and collective bargaining
rights, Judge Jackson rendered a decision somewhat less approving of alternate dispute
procedures, albeit in the unique context of a substantial separation of powers issue.548 In resolving
the roles and powers of the three branches in this dispute, the nominee held that Congress had not
precluded federal court jurisdiction over the challenge to the executive orders.549 As one of
several factors leading to this conclusion, Judge Jackson observed that while the President

539 Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA, 25 F.4th 1 (D.C. Cir. 2022).
540 See “Business and Employment Law” supra.
541 Dist. No. 1, Pac. Coast Dist., Marine Eng’rs’ Beneficial Ass’n, AFL-CIO v. Am. Mar. Officers, 75 F. Supp. 3d 294,
308 (D.D.C. 2014).
542 148 F. Supp. 3d 12, 20–21 (D.D.C. 2015).
543 Id. at 24.
544 70 F. Supp. 3d 327 (D.D.C. 2014), aff’d, 815 F.3d 834 (D.C. Cir. 2016).
545 Id. at 338–39.
546 Id. at 345.
547 Id. Judge Jackson acknowledged that her conclusions were in tension with those of an earlier district court decision
in the same matter by a different judge, but she held this previous decision was not “law-of-the-case.” Id. at 349–50.
548 318 F. Supp. 3d 370 (D.D.C. 2018); see also “Separation of Powers” infra.
549 Am. Fed. of Gov’t Emps., 318 F.Supp.3d at 380–81.
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possesses some inherent authority to act in the field of federal labor-management relations,550 the
exercise of that authority may be constrained where Congress has legislated pursuant to its own
enumerated powers.551 The nominee held that portions of these particular executive orders were
invalid because they conflicted with congressional intent, “eviscerat[ing] the right to bargain
collectively” that Congress enshrined in statute.552
On review, the D.C. Circuit disagreed with Judge Jackson’s jurisdictional ruling, holding that the
plaintiffs’ claims instead had to follow a statutory administrative review process.553 Though this
decision may stand in contrast to Judge Jackson’s other decisions that look more favorably on
administrative review processes, this may be due to the unusual separation of powers concerns,
which are not typically present in labor cases.
Second Amendment
The Supreme Court’s recent decisions in Second Amendment cases have been closely divided,
with Justice Breyer authoring and joining dissents in 5-4 decisions in District of Columbia v.
Heller (which recognized that the Second Amendment protects an individual right to keep and
bear arms for certain purposes)554 and McDonald v. City of Chicago (which recognized that the
Second Amendment applies to state and local gun laws by way of the Fourteenth Amendment).555
It is unclear whether Judge Jackson’s views on the Second Amendment would align with those of
Justice Breyer. In written responses to questions from several Senators in relation to her
nomination to the D.C. Circuit, Judge Jackson stated that, as a federal judge, the Supreme Court’s
Second Amendment precedents were “binding” on her and she “would be required to apply them
in any case” implicating “a restriction or limitation on a person’s individual right to own a
firearm.”556 Judge Jackson’s nomination records do not appear to reveal her personal views on the
Second Amendment or the permissible scope of firearms regulation, however,557 and it does not
appear that she has authored judicial opinions addressing the Second Amendment’s substance.
In Baisden v. Barr, Judge Jackson presided over a lawsuit brought by a man convicted of federal
tax evasion who sought relief from the federal prohibition on firearm possession by convicted
felons.558 The plaintiff cited a statutory exemption for certain “offenses relating to the regulation
of business practices,” and alleged that the federal prohibition violated his “Second Amendment
right to keep and bear arms.”559 Judge Jackson granted the government defendants’ motion to
dismiss the case based on the threshold, jurisdictional determination that the plaintiff’s allegations

550 Id. at 412.
551 Id. at 417.
552 Id. at 381.
553 Am. Fed. of Gov’t Emps., AFL-CIO v. Trump, 929 F.3d 748, 752 (D.C. Cir. 2019).
554 554 U.S. 570, 626–27 (2008); id. at 636 (Stevens, J., dissenting); id. at 681 (Breyer, J., dissenting).
555 561 U.S. 742, 912 (2010) (Breyer, J., dissenting).
556 Senate Judiciary Attachments, supra note 74, at 434 (responses to questions from Senator Ted Cruz); see also id. at
475 (responses to questions from Senator Thom Tillis) (“As a sitting federal judge, I am bound to apply faithfully all
binding precedents of the D.C. Circuit and the Supreme Court, including all precedents that pertain to the Second
Amendment individual right to keep and bear arms.”).
557 See id. at 427 (responses to questions from Senator Tom Cotton) (“I have not expressed any personal views of the
scope and contours of the fundamental rights protected by the First and Second Amendments, and it would not be
appropriate for me to do so under Canon 3 of the Code of Conduct for Judges, given that the Supreme Court and other
courts are actively considering such issues as applied to various government regulations.”).
558 No. 19-CV-3105, 2020 WL 6118181, at *1 (D.D.C. Oct. 16, 2020) (referring to 18 U.S.C. § 921(a)(20)(A)).
559 Id. at *2 (quoting Compl. ¶ 1).
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were insufficient to establish standing to bring his claims.560 The nominee wrote, “in the abstract,
[the plaintiff’s] inability to possess a firearm lawfully might qualify as a cognizable injury in fact”
for standing purposes, but the plaintiff failed to allege “any specific facts concerning whether he
ever owned a firearm or possessed a permit, ever used a firearm or intended to use one, or ever
wished or desired to possess one in the future.”561
Separation of Powers
As part of her prior confirmation proceedings, Judge Jackson described the Constitution’s
separation and allocation of powers among the three branches of the federal government as
playing an “essential role in our constitutional scheme.”562 Referring to Supreme Court case law
and Founding-era writings, she characterized this division of power as having two purposes.563
The nominee explained that the Constitution’s separation of national powers establishes a system
of “checks and balances” to prevent the “autocracy” that would result from an overconcentration
of power in any one branch.564 She also noted that this separation of powers was intended to
promote “a workable government.”565 Since being confirmed to the federal bench, Judge Jackson
has considered separation of powers questions in a handful of cases, which offer examples of how
she might approach such issues, if confirmed.
Committee on the Judiciary v. McGahn566 is arguably the most significant of these cases—indeed,
it is perhaps the most significant case that Judge Jackson decided on the district court, given its
implications for Congress’s ability to obtain information concerning executive branch activities.
The case arose from a subpoena issued by the House Committee on the Judiciary to former White
House Counsel Donald F. McGahn, seeking McGahn’s production of documents and
testimony.567 President Trump instructed McGahn not to testify, because, as a former senior
advisor, McGahn allegedly had absolute testimonial immunity.568 The Judiciary Committee
eventually filed suit, asking Judge Jackson to declare that McGahn’s refusal to testify was
“without legal justification” and to order his testimony.569 After considering two substantial
separation of powers arguments, Judge Jackson held that McGahn did not have absolute

560 Id. at *1.
561 Id. at *4. Judge Jackson dismissed the plaintiff’s complaint without prejudice. The plaintiff subsequently filed an
amended complaint, which the defendants again moved to dismiss, but Judge Jackson was appointed to the D.C. Circuit
before she could rule on the sufficiency of the allegations in the amended complaint. See First Amended Complaint,
Baisden v. Barr, No. 19-CV-3105 (D.D.C. Nov. 6, 2020); Motion to Dismiss for Lack of Jurisdiction, Baisden v. Barr,
No. 19-CV-3105 (D.D.C. Dec. 2, 2020).
562 See Senate Judiciary Attachments, supra note 74, at 450 (responses to questions from Senator Mike Lee).
563 See id.
564 Id.; see also id. at 503 (responses to questions from Senator Jeff Flake) (characterizing the Constitution’s separation
of national powers as ensuring “that the functions of each branch are distinct and constrained and that no one branch
can consolidate all power in itself”).
565 Id. at 450 (responses to questions from Senator Mike Lee) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635 (1952) (Jackson, J., concurring)).
566 Comm. on Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148 (D.D.C. 2019). The case’s
subsequent procedural history is described later in this section. See also “Standing” supra.
567 McGahn, 415 F. Supp. 3d at 157.
568 Id. at 158 (asserting this alleged immunity as to McGahn’s “official duties” (internal quotation marks omitted)).
569 Id. at 162–63. The Judiciary Committee and the executive branch reached an agreement regarding McGahn’s
production of subpoenaed documents. See id. at 159–60.
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testimonial immunity and would have to appear before the Judiciary Committee and either
answer questions or invoke an applicable privilege.570
First, the executive branch contended that the district court lacked subject matter jurisdiction to
consider the Judiciary Committee’s subpoena enforcement action. In part, the executive branch
argued that interbranch information disputes were of a type not “traditionally thought capable of
resolution through the judicial process.”571 The Supreme Court has refused to “resolve disputes
that are not justiciable” so as to maintain the Judiciary’s proper place in the constitutional
system—ensuring “the independence of the Judicial Branch by precluding debilitating
entanglements between the Judiciary and the two political Branches” while also preventing “the
Judiciary from encroaching into areas reserved for the other Branches.”572 The executive branch
contended that this was such a dispute.
Judge Jackson rejected the executive branch’s justiciability argument. She reasoned that a
subpoena enforcement dispute was “not a political battle at all,” but instead raised “garden-
variety legal questions”—such as the validity and enforceability of a subpoena and its recipient’s
“legal duty to respond”—“that the federal courts address routinely and are well-equipped to
handle.”573 The nominee also concluded that under D.C. Circuit precedent, a dispute between the
executive branch and Congress over a subpoena’s enforceability was “a fully justiciable one.”574
Although, as a historical matter, courts rarely resolved interbranch information disputes, Judge
Jackson concluded this history did not demonstrate the federal courts’ inability to resolve such
disputes, but rather that the executive branch had “wisely picked its battles.”575 In other contexts,
the federal courts had “adjudicated disputes” that impacted “the divergent interests of the other
branches,” and the Supreme Court had “never suggested that the Judiciary has the power to
perform its constitutionally assigned function only when it speaks to private citizens.”576 Judge
Jackson also concluded that adjudicating the Judiciary Committee’s claim would be consistent
with the Constitution’s system of checks and balances.577 The political branches could function
better if the court resolved the particular legal dispute—McGahn’s obligation, if any, to appear
for testimony—that had them at loggerheads.578
Second, the executive branch argued that the Judiciary Committee lacked standing and a cause of
action to enforce the subpoena, because no statute expressly authorized the suit and no such

570 Id. at 154–55, 215 (“Notably, whether or not the law requires the recalcitrant official to release the testimonial
information that the congressional committee requests is a separate question, and one that will depend in large part on
whether the requested information is itself subject to withholding consistent with the law on the basis of a recognized
privilege.”); see also CRS Legal Sidebar LSB10373, Congressional Subpoenas of Presidential Advisers: The Impact of
Committee on the Judiciary v. McGahn, by Todd Garvey.
571 McGahn, 415 F. Supp. 3d at 176.
572 Mistretta v. United States, 488 U.S. 361, 385 (1989).
573 McGahn, 415 F. Supp. 3d at 177.
574 Id. at 178–79 (discussing United States v. Am. Tel. & Tel. Co., 551 F.2d 384, 391 (D.C. Cir. 1976) (action brought
by the executive branch to enjoin a telephone company’s compliance with a congressional subpoena issued by a House
subcommittee that intervened in the case to defend its subpoena)).
575 Id. at 181.
576 Id. at 184.
577 Id.
578 Id.; see also id. at 185 (“DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the
branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than
bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates
the Constitution unlawful.”).
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authorization could be implied in the Committee’s favor.579 Citing separation of powers concerns,
the executive branch argued that a court should be particularly reluctant to “imply a cause of
action” arising under the Constitution “for the benefit of one political Branch against the
other.”580
Judge Jackson disagreed, writing that defiance of a valid subpoena was an injury in fact581 and
that “Article I of the Constitution is all the cause that a committee of Congress needs to seek a
judicial declaration from the court regarding the validity and enforceability of a subpoena that it
has allegedly issued in furtherance of its constitutional power of inquiry.”582 The nominee found
no separation of powers impediment to this conclusion. The nominee wrote that there was no
reason why “the Constitution should be construed to command” that a committee of Congress
should have less of an opportunity to have its subpoenas enforced than a private litigant.583 The
possibility that Congress could exert other powers to win compliance with its subpoena (e.g.,
withholding appropriations) was likely impractical and, in any event, “irrelevant” to the cause-of-
action question.584 Reaching the merits, the nominee concluded that McGahn lacked absolute
testimonial immunity.585
McGahn went on to receive extensive consideration in the D.C. Circuit.586 A divided, three-judge
panel first disagreed with Judge Jackson’s conclusion that defiance of a subpoena constituted an
injury that confers standing,587 but the D.C. Circuit sitting en banc vacated the D.C. Circuit panel
opinion588 and affirmed Judge Jackson’s standing holding.589 Next, the D.C. Circuit panel took up
the question whether the Committee has a cause of action to enforce its subpoena, and it again
disagreed with Judge Jackson.590 The en banc court vacated that panel opinion as well and agreed
to reconsider the cause-of-action question,591 but it ultimately dismissed the appeal at the parties’
request.592

579 See id. at 193–94.
580 Comb. Memo. of Points & Authorities in Supp. of Defs.’ Mot. for Summ. J. & in Opp’n. to Pls.’ Mot. for Summ. J.,
Comm. on Judiciary, at 40, U.S. House of Representatives v. McGahn, No. 1:19-cv-02379-FYP (D.D.C. filed Oct. 1,
2019).
581 McGahn, 415 F. Supp. 3d at 188.
582 Id. at 193. Judge Jackson also concluded that if “Congress does somehow need a statute to authorize” its suit, the
Declaratory Judgment Act “serves that purpose.” Id. at 195 (citing Comm. on Judiciary, U.S. House of Representatives
v. Miers, 558 F. Supp. 2d 53, 78–88 (D.D.C. 2008); Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d
1, 22 (D.D.C. 2013)).
583 See id. at 196.
584 Id. at 196-97 (stating that an “appropriations sanction” could not be implemented “swiftly enough”).
585 Id. at 199–214.
586 See CRS Legal Sidebar LSB10432, Resolving Subpoena Disputes Between the Branches: Potential Impacts of
Restricting the Judicial Role, by Todd Garvey.
587 Comm. on Judiciary v. McGahn, 951 F.3d 510, 516 (D.C. Cir. 2020).
588 U.S. House of Representatives v. Mnuchin, No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020).
589 Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755, 760–61 (D.C. Cir. 2020) (en
banc).
590 Comm. on Judiciary of U.S. House of Representatives v. McGahn, 973 F.3d 121, 125 (D.C. Cir. 2020).
591 Order at 1, Comm. on the Judiciary of the U.S. House of Representatives, No. 19-5331 (D.C. Cir. filed Oct. 15,
2020)
592 Order at 1, Comm. on the Judiciary of the U.S. House of Representatives, No. 19-5331 (D.C. Cir. filed July 13,
2021).
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Throughout her opinion in McGahn, Judge Jackson reasoned that when a federal court is
presented with a legal question—even one concerning relations among the political branches—
separation of powers principles generally do not stand as an impediment to the court resolving
that dispute;593 rather, the court’s exercise of jurisdiction “advances” the system of checks and
balances.594 In other cases, however, the nominee has recognized that the inverse is true—that
when a case does not present a legal question, a federal court could encroach on powers vested in
another branch if it were to adjudicate the suit. As the Supreme Court has explained, the political
question doctrine is a “function of the separation of powers”595 and serves to exclude from
“judicial review those controversies which revolve around policy choices and value
determinations constitutionally committed for resolution to the halls of Congress or the confines
of the Executive Branch.”596 In Mobarez v. Kerry, American citizens and lawful permanent
residents sued the United States to compel their evacuation from war-torn Yemen. Judge Jackson
viewed that suit as raising “quintessential” political questions.597 In their substance, the claims
questioned “the Executive Branch’s discretionary decision to refrain from using military force to
implement an evacuation.”598 Judge Jackson held that a district court lacks jurisdiction to review
such discretionary decisions, given the Constitution’s commitment of national security and
foreign affairs decisions to the political branches.599
Judge Jackson has also considered claims attacking the President’s authority to take particular
actions. In May 2018, President Trump asserted that he had “both the statutory and constitutional
authority to direct the manner of executive agencies’ collective bargaining negotiations” and, to
that end, issued three executive orders related to collective bargaining procedures, official time
issues, and employee discipline.600 Unions representing federal employees sued, claiming in part
that the executive orders exceeded the President’s authority because they conflicted with
statute.601 Judge Jackson wrote that the relative powers of all branches of federal government
played a role in the case, including:
[T]he power of the Judiciary to hear cases and controversies that pertain to federal labor-
management relations; the power of the President to issue executive orders that regulate
the conduct of federal employees in regard to collective bargaining; and the extent to which
Congress has made policy choices about federal collective bargaining rights that supersede
any presidential pronouncements or priorities.602

593 See McGahn, 415 F. Supp. 3d at 154 (“Jurisdiction exists because the Judiciary Committee’s claim presents a legal
question, and it is ‘emphatically’ the role of the Judiciary to say what the law is.” (quoting Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803)).
594 Id.
595 Baker v. Carr, 369 U.S. 186, 210 (1962).
596 Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986).
597 187 F. Supp. 3d 85, 88, 92 (D.D.C. 2016).
598 Id. at 93.

599 See id. at 94 (“Evaluating Plaintiffs’ claims would involve calling into question the prudence of the political
branches in matters of foreign policy or national security constitutionally committed to their discretion.” (internal
quotation marks omitted)); see also id. at 91 (explaining that “the President has plenary and exclusive power in the
international arena and acts as the sole organ of the federal government in the field of international relations” (internal
quotation marks omitted)).
600 Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 318 F. Supp. 3d 370, 394 (D.D.C. 2018), rev’d and vacated, 929
F.3d 748 (D.C. Cir. 2019); see also “Labor Law” supra.
601 Am. Fed’n of Gov’t Emps., AFL-CIO, 318 F. Supp. 3d at 391.
602 See id. at 379.
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After concluding that she had jurisdiction over the unions’ claims,603 Judge Jackson proceeded to
consider their merits. To gauge a President’s statutory authority, the nominee explained that “a
court must analyze the organic statute that supposedly confers statutory authority upon the
President, assess the scope of a given executive order, and check for inconsistencies between the
statute and the executive order.”604 A President’s claims of “inherent constitutional authority,” on
the other hand, were to be analyzed under the “well-known tripartite framework” set forth in
Associate Justice Robert Jackson’s 1952 concurrence in Youngstown Sheet & Tube Co. v.
Sawyer.605 Under the Youngstown framework, a court assesses a President’s authority by asking
whether the President acted pursuant to express or implied authority from Congress, in the
absence of “either a congressional grant or denial of authority,” or in conflict with Congress’s
express or implied will.606
On the merits, Judge Jackson concluded that the President had authority to “issue executive
orders regarding federal labor-management relationships” prior to the 1978 enactment of the
Federal Service Labor-Management Relations Statute (FSLMRS).607 She further determined that
the FSLMRS did not purport to divest the President of this preexisting authority.608 The core
merits issue in the case, then, was whether the President’s executive orders conflicted with
statute, in which case the executive orders would be ultra vires—that is, in excess of legal
authority. For a variety of reasons, Judge Jackson concluded that aspects of the executive order
conflicted with FSLMRS, and thus were ultra vires.609 On appeal, the D.C. Circuit concluded that
Judge Jackson lacked jurisdiction over the unions’ claims because Congress had established an
“exclusive statutory scheme” providing for administrative review; thus, the “district court had no
power to address the merits of the executive orders.”610
Since her confirmation to the D.C. Circuit, Judge Jackson has also served on appellate panels that
considered separation of powers questions. In Trump v. Thompson, the nominee joined an opinion
that allowed the Archivist of the United States to disclose to Congress documents that were
generated during the Trump Administration, and as to which President Biden had determined
executive privilege was not justified.611 The Thompson panel recognized that an implied
executive privilege was “‘inextricably rooted in the separation of powers,’” and that “former
Presidents retain for some period of time a right to assert executive privilege over documents
generated during their administrations.”612 The panel concluded, though, that significant factors
likely favored disclosure of these documents613 and that former President Trump had not carried

603 Id. at 397–409.
604 Id. at 393.
605 Id. (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring)).
606 Id. (internal quotation marks omitted).
607 Id. at 413.
608 Id. at 416 (“[G]iven the widely-known sweeping exercise of presidential prerogative to regulate federal labor-
management relations that preceded the FSLMRS, Congress’ silence on the issue of the President’s authority to
continue to act in this arena speaks volumes about whether it actually intended to oust the President entirely from this
sphere.”).
609 See, e.g., id. at 425–26 (concluding executive order provisions that removed from negotiation topics that were
placed “on the bargaining table in the FSLMRS” as mandatory or permissive subjects of bargaining “reduces the scope
of the protected right to bargain in an impermissible manner”).
610 Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 929 F.3d 748, 761 (D.C. Cir. 2019).
611 20 F.4th 10, 17 (D.C. Cir. 2021).
612 Id. at 25–26 (quoting United States v. Nixon, 418 U.S. 683, 708 (1974)).
613 Id. at 33 (citing President Biden’s determination that an assertion of privilege “is not in the best interests of the
United States,” Congress’s showing that the information sought was “vital to its legislative interests,” and the ongoing
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his burden “of at least showing some weighty interest in continued confidentiality that could be
capable of tipping the scales back in his favor.”614
Tables of Selected Cases
In preparing this report, CRS reviewed all decisions that were identified in the LEXIS and
Westlaw commercial databases as written by Judge Jackson. As discussed in the “Role of a U.S.
District Judge” section, not all of those opinions contain legal reasoning that may provide insight
into Judge Jackson’s jurisprudence. The tables below identify all of the nominee’s D.C. Circuit
opinions, and those selected district court opinions that CRS analyzed in this report because they
contained substantial legal reasoning on topics of interest to Congress. Decisions are listed in
reverse chronological order, with the most recent decisions listed first, and some district court
cases appear on the list twice if they resulted in multiple opinions that were selected for inclusion.
The “Section(s)” column directs the reader to discussions or citations of the case in this report.
Table 1. All Opinions Authored by Judge Jackson on the D.C. Circuit
Case
Holding
Section(s)
I.A. v. Garland,
Vacatur of a district court decision is an extraordinary remedy
Civil Procedure
2022 WL 696459 (2022)
and should not be granted solely because a dispute has become
and Jurisdiction
moot (concurring opinion).
Wye Oak Tech., Inc. v.
The law-of-the-case doctrine did not govern the court's analysis
Approaches to
Republic of Iraq,
of the FSIA's application to a dispute between an American
Statutory
24 F.4th 686 (2022)
defense contractor and a foreign government, and the district
Interpretation;
court incorrectly applied the FSIA’s commercial activity
Civil Procedure
exception. Remanded to the district court to determine whether
and Jurisdiction
a different clause of the commercial activity exception applied.
Am. Fed’n of Gov’t Emps., FLRA decision to raise the threshold for col ective bargaining for
Administrative
AFL-CIO v. FLRA,
certain federal employees was arbitrary and capricious in
Law; Labor Law
25 F.4th 1 (2022)
violation of the APA.
Source: Congressional Research Service.

accommodation process between the political branches).
614 Id. at 38. Following an adverse D.C. Circuit ruling, former President Trump asked the Supreme Court to prevent
disclosure of the contested records pending the Court's review. In a brief unsigned order, the Court declined the former
President’s request. Trump v. Thompson, 142 S.Ct. 680 (2022). The Court also stated that because the D.C. Circuit
ruled that former President Trump's assertion of privilege would have failed even if he were the incumbent, the circuit
court’s discussion of when executive privilege claims could properly be asserted by former presidents was non-binding
dicta. The Court later denied a petition of certiorari to review the D.C. Circuit decision. No. 21-932, 2022 WL 516395
(Mem) (U.S. Feb. 22, 2022).
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Table 2. Selected Opinions Authored by Judge Jackson on the District of D.C.
Subsequent
Case
Holding
History
Section(s)
Youssef v. Embassy of
Age discrimination claim by embassy

Civil Procedure
United Arab Emirates,
employee fell within the FSIA’s commercial
and Jurisdiction
2021 WL 3722742 (2021)
activity exception, and federal enclave
doctrine did not preclude the plaintiff's claim
under the D.C. Human Rights Act.
Osvatics v. Lyft, Inc.,
Lyft was entitled to arbitration of claims

Approaches to
535 F. Supp. 3d 1 (2021)
alleging that the company violated D.C. law
Statutory
by failing to provide paid sick leave to
Interpretation
rideshare drivers.
Equal Rights Ctr. v. Uber
Plaintiff organization had standing to sue

Approaches to
Techs., Inc.,
rideshare provider over failure to
Statutory
525 F. Supp. 3d 62 (2021)
accommodate wheelchair users, and the
Interpretation;
plaintiff made sufficiently plausible claims of
Civil Procedure
discrimination to survive a motion to dismiss.
and Jurisdiction;
Civil Rights and
Qualified
Immunity
United States v. Greene,
Prisoner’s motion for compassionate release

Criminal Law
516 F. Supp. 3d 1 (2021)
was granted; the motion must be construed
and Procedure
as a motion under federal law (rather than
under the D.C. Code) because the sentence
was imposed in federal court.
Maryland v. U.S. Dep't of
Claims would be dismissed on mootness

Stare Decisis;
Educ.,
grounds, as directed by the D.C. Circuit, in an
Civil Procedure
2020 WL 7773390 (2020)
opinion expressing concerns about the D.C.
and Jurisdiction
Circuit's vacatur practice.
United States v. Terry,
Motion to vacate sentence was untimely

Criminal Law
2020 WL 7773389 (2020)
because the new right recognized in United
and Procedure
States v. Johnson, 576 U.S. 591 (2015), did not
apply to the residual clause of the career
offender guideline.
Las Ams. Immigrant
Plaintiff failed to show that new DHS
appeal filed, No.
Approaches to
Advoc. Ctr. v. Wolf,
programs for processing asylum claims, which
20-5386 (D.C.
Constitutional
507 F. Supp. 3d 1 (2020)
allegedly interfered with the right to consult
Cir. Dec. 30,
Interpretation;
with an attorney concerning credible-fear
2020)
Administrative
interviews, violated statute or the Due
Law;
Process Clause.
Immigration
Kiakombua v. Wolf,
Portions of a DHS manual governing credible-
appeal dismissed
Approaches to
498 F. Supp. 3d 1 (2020)
fear determinations were either inconsistent
sub nom.
Statutory
with unambiguous governing law or
Kiakombua v.
Interpretation;
unreasonable interpretations of the law.
Mayorkas, No.
Administrative
20-5372, 2021
Law;
WL 3716392
Immigration
(D.C. Cir. July
19, 2021)
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Baisden v. Barr,
Pro se plaintiff, seeking declaratory and

Second
2020 WL 6118181 (2020)
injunctive relief allowing him to possess a
Amendment
firearm, failed to demonstrate standing
because he did not allege that he ever owned
or used a firearm or wished to possess one in
the future.
Campaign for
Plaintiffs plausibly alleged that DOJ Office of

Administrative
Accountability v. U.S.
Legal Counsel (OLC) opinions relating to
Law
Dep't of Just.,
inter-agency disputes must be affirmatively
486 F. Supp. 3d 424
disclosed under the Freedom of Information
(2020)
Act (FOIA), but other types of OLC opinions
included in their complaint did not qualify for
affirmative disclosure.
United States v. Dunlap,
Prisoner was entitled to compassionate

Criminal Law
485 F. Supp. 3d 129
release based on COVID-19 pandemic
and Procedure
(2020)
coupled with serious preexisting underlying
medical conditions.
Maryland v. U.S. Dep't of
States lacked standing to challenge
vacated, No. 20-
Civil Procedure
Educ.,
Department of Education regulation at issue
5268, 2020 WL
and Jurisdiction
474 F. Supp. 3d 13 (2020)
in the case.
7868112 (D.C.
Cir. Dec. 22,
2020)
AFL-CIO v. Nat’l Labor
NLRB rule prescribing procedures for the
appeal filed, No.
Approaches to
Relat. Bd. (NLRB),
election of employee representatives for
20-5226 (D.C.
Statutory
471 F. Supp. 3d 228
col ective bargaining was not arbitrary and
Cir. July 29,
Interpretation;
(2020)
capricious and satisfied the APA's reasoned-
2020)
Administrative
decisionmaking requirement.
Law
United States v. Leake,
Officers' actions were reasonable for Fourth

Criminal Law
2020 WL 3489523 (2020)
Amendment purposes and the defendant
and Procedure
lacked Fourth Amendment standing to
challenge the officers' presence in the
building.
United States v. Sears,
Defendant was not entitled to compassionate

Criminal Law
2020 WL 3250717 (2020)
release due to risk of reoffending and to the
and Procedure
community.
AFL-CIO v. NLRB,
NLRB violated the APA by failing to fol ow
appeal filed, No.
Approaches to
466 F. Supp. 3d 68 (2020)
notice-and-comment procedures to adopt a
20-5223 (D.C.
Statutory
rule prescribing procedures for the election
Cir. July 24,
Interpretation;
of employee representatives for col ective
2020)
Administrative
bargaining. National Labor Relations Act did
Law
not bar district court jurisdiction over the
claim.
Manus v. Hayden,
Record in employment discrimination case

Business and
2020 WL 2615539 (2020)
was insufficient to show that plaintiff engaged
Employment
in protected activity or was constructively
Law
discharged.
United States v. Johnson,
Defendant was entitled to compassionate

Criminal Law
464 F. Supp. 3d 22 (2020)
release based on COVID-19 pandemic and
and Procedure
preexisting medical conditions.
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
United States v. Leake,
Defendant had failed to establish compelling

Criminal Law
2020 WL 2331918 (2020)
reasons and weight of statutory factors in
and Procedure
motion for emergency relief.
United States v. Dabney,
Defendant was entitled to pretrial release,

Criminal Law
2020 WL 1867750 (2020)
based on COVID-19 pandemic and underlying
and Procedure
medical condition.
United States v. Wiggins,
Defendant was not entitled to release to

Criminal Law
2020 WL 1868891 (2020)
home confinement pending sentencing,
and Procedure
notwithstanding COVID-19 pandemic.
United States v. Lee,
Pandemic alone was not sufficient to warrant

Criminal Law
451 F. Supp. 3d 1 (2020)
release of an otherwise healthy and
and Procedure
potentially violent defendant.
Mohammad Hilmi Nassif & The court lacked jurisdiction to enforce a

Civil Procedure
Partners v. Republic of
Jordanian judgment because the defendants
and Jurisdiction
Iraq,
had not been properly served.
2020 WL 1444918 (2020)
Doe v. Wash. Metro.
WMATA was entitled to governmental

Civil Procedure
Area Transit Auth.
function sovereign immunity in claims alleging
and Jurisdiction
(WMATA),
negligence in failing to prevent a sexual assault
453 F. Supp. 3d 354
on a Metro train.
(2020)
Wil is v. Gray,
Plaintiff's claims regarding a D.C.-wide

Business and
2020 WL 805659 (2020)
reduction in force were precluded by prior
Employment
litigation and other claims were barred by
Law; Civil
statute of limitations, but discriminatory
Procedure and
termination claims could proceed.
Jurisdiction
United States v. Fields,
Defendant failed to establish material change

Criminal Law
2020 WL 32990 (2020)
in economic circumstances sufficient to justify
and Procedure
modifying restitution sentence.
Comm. on Judiciary, U.S.
The court had jurisdiction over subpoena
Please see
Stare Decisis;
House of Representatives
enforcement action brought by the House
“Separation of
Civil Procedure
v. McGahn,
Committee on the Judiciary against former
Powers” supra
and Jurisdiction;
415 F. Supp. 3d 148
White House Counsel Don McGahn, and
for discussion of Separation of
(2019)
McGahn had no absolute testimonial
multiple stages
Powers
immunity based on his status as a senior
of review on
advisor to the President.
appeal.
Keister v. AARP Benefits
By signing a separation agreement, plaintiff
aff’d, 839 F.
Business and
Comm.,
waived rights to bring claims for disability
App’x 559 (D.C. Employment
410 F. Supp. 3d 244
benefits.
Cir. 2021)
Law
(2019)
Make the Road N.Y. v.
The court had jurisdiction over challenge to
rev’d and
Administrative
McAleenan,
DHS’s notice expanding eligibility for
remanded sub
Law; Civil
405 F. Supp. 3d 1 (2019)
expedited removal, and the plaintiffs were
nom. Make the
Procedure and
likely to succeed on merits of their claim that
Rd. N.Y. v.
Jurisdiction;
the policy violated the APA.
Wolf, 962 F.3d
Immigration
612 (D.C. Cir.
2020)
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Ctr. for Biological
Environmental group plaintiff could not bring,
cert. denied, 141
Approaches to
Diversity v. McAleenan,
and district court lacked jurisdiction over,
S. Ct. 158
Statutory
404 F. Supp. 3d 218
statutory claims challenging the waiver of
(2020)
Interpretation;
(2019)
environmental laws to construct border
Environmental
barriers. Plaintiff failed to state constitutional
Law
claims.
United States v. Johnson,
The government adduced evidence that
aff’d in part and
Criminal Law
2019 WL 3842082 (2019)
explosive devices met requisite legal
vacated in part, 4 and Procedure
definitions in charged criminal offenses.
F.4th 116 (D.C.
Cir. 2021)
Barber v. D.C. Gov't,
Plaintiff had not sufficiently pled constitutional
Business and
394 F. Supp. 3d 49 (2019)
or tort claims against employer, but could
Employment
proceed on employment discrimination
Law
claims.
Brown v. Gov't of D.C.,
Plaintiff plausibly claimed that a D.C.

First
390 F. Supp. 3d 114
panhandling ordinance was an
Amendment
(2019)
unconstitutional content-based regulation of
speech.
Jackson v. Bowser,
Private defendants were not state actors

Civil Rights and
2019 WL 1981041 (2019)
subject to suit for constitutional violations,
Qualified
and the plaintiff failed to plead sufficient facts
Immunity
to support a claim against the government
defendants.
United States v. Fajardo
Wiretap results could be admitted because

Criminal Law
Campos,
the wiretaps were “necessary” given the
and Procedure
2018 WL 6448633 (2018)
failure of other traditional methods for
determining the scope of a drug trafficking
organization; the issuing judge in Arizona had
jurisdiction over the request made under
Title III of the Omnibus Crime Control and
Safe Streets Act of 1968,; and the Title III
request was sufficiently particular for Fourth
Amendment purposes.
In re Air Crash Over
Malaysia provided an available and adequate
aff’d, 946 F.3d
Civil Procedure
Southern Indian Ocean,
forum for the claims arising from the
607 (D.C. Cir.
and Jurisdiction
352 F. Supp. 3d 19 (2018)
disappearance of Malaysia Airlines Flight
2020)
MH370.
Guam v. United States,
Guam could proceed with cost-recovery
rev’d, 950 F.3d
Environmental
341 F. Supp. 3d 74 (2018)
claim against the United States under
104 (D.C. Cir.
Law
CERCLA for the cleanup of a contaminated
2020), rev’d, 141
landfil , because a 2004 consent decree did
S. Ct. 1608
not “resolve” Guam's liability to the United
(2021)
States for some or all of a response action.
Nagi v. Chao,
Plaintiff’s complaint did not state a claim for

Business and
2018 WL 4680272 (2018)
hostile work environment, but discriminatory
Employment
and retaliatory non-selection claims could
Law
proceed.
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Otay Mesa Prop., L.P. v.
In challenge to ESA rule designating critical

Administrative
U.S. Dep’t of the Interior,
habitat of endangered shrimp, FWS
Law;
344 F. Supp. 3d 355
improperly included as "occupied" critical
Environmental
(2018)
habitat areas where shrimp were not located,
Law
and failed to support designation of those
areas as "unoccupied" critical habitat.
United States v. Young,
Government was not entitled to a money

Criminal Law
330 F. Supp. 3d 424
judgment of $180,000, because the
and Procedure
(2018)
government had already obtained as
contraband the heroin that this sum was used
to acquire.
Am. Fed’n of Gov’t Emps.
The court had subject matter jurisdiction
rev’d and
Approaches to
v. Trump,
over dispute concerning executive orders
vacated, 929
Statutory
318 F. Supp. 3d 370
related to federal labor-management
F.3d 748 (D.C.
Interpretation;
(2018)
relations. The executive orders exceeded the
Cir. 2019)
Administrative
President's authority because they conflicted
Law; Labor Law;
with statutory provisions concerning labor
Separation of
issues.
Powers
Feldman v. Bowser,
Taxpayer lacked standing to challenge the

Civil Procedure
315 F. Supp. 3d 299
D.C. Local Budget Autonomy Amendment
and Jurisdiction
(2018)
Act of 2012 and large portions of a budget
enacted pursuant to the Act because she
sought to challenge the budgeting process as
a whole rather than alleging discrete
expenditures were unlawful.
Pol’y & Rsch., LLC v. U.S.
HHS’s termination of Teen Pregnancy
appeal dismissed, Administrative
Dep't of Health & Human
Prevention Program grants was both judicially No. 18-5190,
Law
Servs. (HHS),
reviewable and arbitrary and capricious given
2018 WL
313 F. Supp. 3d 62 (2018)
the standards set for termination of grants in
6167378 (D.C.
HHS regulations.
Cir. Oct. 29,
2018)
Azima v. RAK Inv. Auth.,
FSIA’s commercial activity exception applied
rev’d, 926 F.3d
Civil Procedure
305 F. Supp. 3d 149
to UAE investment authority that allegedly
870 (D.C. Cir.
and Jurisdiction
(2018)
hacked plaintiff's computer, regardless of
2019)
where the hacking took place; forum non
conveniens did not require the case to
proceed in the United Kingdom.
Raja v. Fed. Dep. Ins. Co.,
Unrepresented individuals challenging the

Civil Procedure
2018 WL 818393 (2018)
foreclosure on their home failed to serve the
and Jurisdiction
defendants properly, but would be given one
more chance to effect service.
United States v. Hil ie,
A reasonable jury could find charged offenses
vacated in part,
Criminal Law
289 F. Supp. 3d 188
involved child pornography.
14 F.4th 677
and Procedure
(2018)
(D.C. Cir. 2021)
W. Watersheds Project v. Litigation involving elk feeding sites in

Civil Procedure
Tidwell,
Wyoming must be transferred to the
and Jurisdiction
306 F. Supp. 3d 350
Wyoming District Court because such
(2017)
matters were “plainly local in character and
were best left to Wyoming’s courts.”
Brick v. Dep’t of Just.,
FBI’s explanation for FOIA redactions was

Administrative
293 F. Supp. 3d 9 (2017)
insufficient to allow meaningful judicial review.
Law
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Tyson v. Brennan,
Religious discrimination claims under Title VII

First
306 F. Supp. 3d 365
of the Civil Rights Act of 1964 survived
Amendment
(2017)
motion to dismiss.
Campaign for
FOIA permitted broad, prospective injunctive
aff’d sub nom.
Approaches to
Accountability v. U.S.
relief not limited to production of individual
Citizens for
Statutory
Dep't of Just.,
documents, but plaintiffs failed to identify an
Resp. & Ethics in Interpretation;
278 F. Supp. 3d 303
ascertainable set of records that were
Wash. v. U.S.
Administrative
(2017)
plausibly subject to FOIA's reading-room
Dep't of Just.,
Law
requirement.
846 F.3d 1235
(D.C. Cir. 2017)
Sheridan v. U.S. Off. of
OPM correctly concluded source code for

Administrative
Pers. Mgmt. (OPM),
software used to conduct background checks
Law
278 F. Supp. 3d 11 (2017)
was exempt from FOIA and adequately
complied with FOIA production
requirements.
Lawson v. Sessions,
Plaintiff had not exhausted her administrative

Business and
271 F. Supp. 3d 119
remedies with respect to Title VII failure to
Employment
(2017)
hire claims, but could proceed on Age
Law
Discrimination in Employment Act claims and
retaliatory interference claims.
Robinson v. Farley,
Complaint raising statutory, constitutional,

Civil Rights and
264 F. Supp. 3d 154
and common law claims against law
Qualified
(2017)
enforcement officers arising from the arrest
Immunity
of an intellectually disabled man need not
specify which officers engaged in what alleged
misconduct in order to survive a motion to
dismiss.
WMATA v. Ark Union
Under provision of the D.C. Code based on

Civil Procedure
Station, Inc.,
the common law nullum tempus doctrine, the
and Jurisdiction
268 F. Supp. 3d 196
statute of limitations did not run against
(2017)
WMATA because the agency’s negligence suit
sought to vindicate public rights.
Ross v. Lockheed Martin
Employees failed to demonstrate requisite

Business and
Corp.,
commonality for class certification in
Employment
267 F. Supp. 3d 174
proposed class action and failed to
Law
(2017)
preliminarily show that terms of proposed
settlement were fair, reasonable, and
adequate.
Ctr. for Biological
Department of the Interior had an ongoing

Administrative
Diversity v. Zinke, 260 F.
obligation to review its NEPA policies, but
Law;
Supp. 3d 11 (2017)
was not required to complete its review,
Environmental

announce the results, or actually revise its
Law
policies; the agency’s review obligation was
not the type of discrete agency action
supervisable by a federal court.
United States v. Crummy,
The government benefits rule under criminal

Criminal Law
249 F. Supp. 3d 475
sentencing guidelines did not apply to
and Procedure
(2017)
procurement frauds involving contracts
awarded under the Section 8(a) program, and
the loss amount should have been reduced by
the fair market value of the services
rendered.
Congressional Research Service

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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Zimmerman v. Al Jazeera
Only some of Major League Baseball players’

First
Am., LLC,
defamation and false light of privacy claims
Amendment
246 F. Supp. 3d 257
against the makers of a documentary
(2017)
contained sufficient allegations to survive
motion for summary judgment.
Nucor Steel–Ark. v.
Plaintiffs had standing in suit seeking to

Environmental
Pruitt,
compel Environmental Protection Agency to
Law
246 F. Supp. 3d 288
object to a Clean Air Act permit for a nearby
(2017)
steel manufacturing plant, where issuance of
permit would effectively require plaintiffs to
reduce emissions at their own manufacturing
plant.
SACE S.p.A. v. Republic of Actual authority was required for an agent of

Civil Procedure
Paraguay,
a foreign state to waive foreign sovereign
and Jurisdiction
243 F. Supp. 3d 21 (2017)
immunity under the FSIA.
United States v. Hil ie,
Criminal indictment for child pornography

Criminal Law
227 F. Supp. 3d 57 (2017)
charges lacked adequate factual detail as to
and Procedure
charged offenses.
United States v. Mil er,
Evidence in criminal prosecution based on
aff’d, 739 F.
Criminal Law
2016 WL 8416761 (2016)
unlawful firearm possession was admissible.
App'x 6 (D.C.
and Procedure
Cir. 2018)
Pac. Ranger, LLC v.
Marine Mammal Protection Act safe-harbor

Environmental
Pritzker,
provision applied only to accidental or non-
Law
211 F. Supp. 3d 196
intentional taking of marine mammals in the
(2016)
course of commercial fishing operations, and
did not apply to knowing takes of whales.
New England Anti-
Animal welfare organization lacked standing

Civil Procedure
Vivisection Soc’y v. U.S.
to challenge FWS’s failure to col ect
and Jurisdiction;
Fish & Wildlife Serv.,
information in connection with export permit
Environmental
208 F. Supp. 3d 142
to transfer chimpanzees to a zoo in the
Law
(2016)
United Kingdom.
Gov’t Accountability
Summary judgment was not warranted for

Approaches to
Project v. Food & Drug
either party in dispute over FDA’s compliance
Statutory
Admin. (FDA),
with a FOIA request.
Interpretation
206 F. Supp. 3d 420
(2016)
Clarian Health W., LLC v.
Qualifying criteria for outlier-payment
rev’d, 878 F.3d
Approaches to
Burwell,
reconciliation were substantive rules that
346 (D.C. Cir.
Statutory
206 F. Supp. 3d 393
should have gone through notice-and-
2017)
Interpretation;
(2016)
comment rulemaking proceedings.
Administrative
Law
Otsuka Pharm. Co., Ltd. v. FDA reasonably interpreted the scope of a
aff’d, 869 F.3d
Administrative
Burwell,
drug’s exclusivity benefit as limited and
987 (D.C. Cir.
Law
302 F. Supp. 3d 375
approved a drug with a different active
2017)
(2016)
moiety.
Yah Kai World Wide
Food market operator’s use of Everlasting

Business and
Enters., Inc. v. Napper,
Life service mark was likely to cause
Employment
195 F. Supp. 3d 287
consumer confusion.
Law
(2016)
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Ross v. U.S. Capitol
Employer’s motion to dismiss would not be

Business and
Police,
treated as a motion for summary judgment,
Employment
195 F. Supp. 3d 180
and employee’s complaint was sufficient to
Law
(2016)
allow discrimination and retaliation claims to
proceed.
Pol ard v. District of
Arresting officers were entitled to qualified
aff'd, 698 F.
Civil Rights and
Columbia,
immunity on several claims because the
App’x 616 (D.C. Qualified
191 F. Supp. 3d 58 (2016)
plaintiffs identified no infringement of the
Cir. 2017)
Immunity
arrestee’s rights, let alone one that violated
clearly established law.
Njang v. Whitestone Grp., Six-month limitations period contained in

Business and
Inc.,
employment contract was not reasonable for
Employment
187 F. Supp. 3d 172
plaintiff’s Title VII discrimination claim, but
Law
(2016)
was reasonable for claims under 42 U.S.C.
§ 1981.
Mobarez v. Kerry,
The court lacked jurisdiction over claim that

Separation of
187 F. Supp. 3d 85 (2016)
sought to compel evacuation of U.S. citizens
Powers
and others from Yemen because the claims
involved political questions.
Morgan v. U.S. Parole
Prisoner’s suit alleging his parole revocation
appeal dismissed, Stare Decisis
Comm.,
violated the Ex Post Facto Clause was barred
No. 16-5081
304 F. Supp. 3d 240
by sovereign immunity and res judicata.
(D.C. Cir. June
(2016)
23, 2016)
Kyle v. Bedlion,
Fifth Amendment did not apply to plaintiff’s
appeal dismissed, Civil Rights and
177 F. Supp. 3d 380
claims of false arrest and use of excessive
No.16-7040,
Qualified
(2016)
force, and plaintiff failed to plead a violation of 2016 WL
Immunity
clearly established law under the Fourth
6915562 (D.C.
Amendment.
Cir. Oct. 26,
2016)
Crawford v. Johnson,
Employee failed to establish that he exhausted rev’d in part sub
Business and
166 F. Supp. 3d 1 (2016)
administrative remedies with respect to
nom. Crawford
Employment
alleged Title VII violations.
v. Duke, 867
Law
F.3d 103 (D.C.
Cir. 2017)
All. of Artists & Recording A digital audio copied recording must itself be
Approaches to
Cos. v. Gen. Motors Co.,
a digital music recording to be covered by the
Statutory
162 F. Supp. 3d 8 (2016)
Audio Home Recording Act.
Interpretation
Alma v. Bowser,
Plaintiff’s mistakenly naming incorrect party

Business and
159 F. Supp. 3d 1 (2016)
would be remedied by substituting correct
Employment
party, rather than dismissing action.
Law
Unite Here Local 23 v. I.L. Arbitrator ruling for a union in a dispute over

Labor Law
Creations of Md. Inc.,
a col ective bargaining agreement was entitled
148 F. Supp. 3d 12 (2015)
to deference, and union was entitled to
attorneys’ fees.
Coal River Mountain
Equities weighted against dismissal of claims,

Civil Procedure
Watch v. U.S. Dep’t of the even though similar claims were pending in
and Jurisdiction
Interior,
both the District of D.C. and the District of
146 F. Supp. 3d 17 (2015)
West Virginia.
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Otay Mesa Prop., L.P. v.
U.S. Fish and Wildlife performed adequate

Administrative
U.S. Dep’t of the Interior,
economic analysis associated with designation
Law;
144 F. Supp. 3d 35 (2015)
of critical habitat for endangered shrimp, and
Environmental
was not required to conduct NEPA analysis
Law
for designation. Additional fact-finding was
necessary, however, to evaluate whether the
FWS had properly designated land identified
as watershed.
R.J. Reynolds Tobacco Co. Federal agency correctly excluded certain

Approaches to
v. U.S. Dep’t of Agric.,
evidence in calculating subsidy payments
Statutory
130 F. Supp. 3d 356
under the Fair and Equitable Tobacco Reform
Interpretation
(2015)
Act of 2004.
Pierce v. District of
Incarceration of deaf man without

Civil Rights and
Columbia,
accommodations, such as access to an
Qualified
128 F. Supp. 3d 250
American Sign Language interpreter, and
Immunity
(2015)
without attempt to evaluate his need for
accommodation, constituted discrimination.
Shaw v. Ocwen Loan
Complaint dismissed sua sponte under

Civil Procedure
Servicing, LLC,
Federal Rules of Civil Procedure 8(a) and
and Jurisdiction
2015 WL 4932204 (2015)
12(b)(6).
XP Vehicles, Inc. v. Dep’t
Plaintiffs plausibly claimed that the

Administrative
of Energy,
Department of Energy acted arbitrarily and
Law
118 F. Supp. 3d 38 (2015)
capriciously by using certain loan programs to
reward political patrons. No cause of action
was available for constitutional claims alleging
due process and equal protection violations.
Rothe Dev., Inc. v. Dep’t
Equal protection challenge to a provision of
aff’d, 836 F.3d
Civil Rights and
of Def.,
the Small Business Act that established a
57 (D.C. Cir.
Qualified
107 F. Supp. 3d 183
business development program for socially
2016)
Immunity
(2015)
and economically disadvantaged small business
concerns failed to meet the high bar for a
facial constitutional challenge.
Cal. Clinical Lab. Ass’n v.
Plaintiffs lacked standing to bring certain
appeal dismissed, Civil Procedure
Sec’y of HHS.,
challenges to Medicare coverage
No. 15–5206,
and Jurisdiction
104 F. Supp. 3d 66 (2015)
determinations made by private entities, and
2015 WL
the court lacked subject matter jurisdiction
9009746 (D.C.
over the remaining claims.
Cir. Oct. 30,
2015)
Fed. Forest Res. Coal. v.
Coalition of associations and industry groups

Civil Procedure
Vilsack,
failed to identify an injury in fact and lacked
and Jurisdiction;
100 F. Supp. 3d 21 (2015)
standing to challenge U.S. Forest Service rule
Environmental
addressing management planning for national
Law
forests.
Mackinac Tribe v. Jewell,
United States’ waiver of sovereign immunity
aff'd, 829 F.3d
Administrative
87 F. Supp. 3d 127 (2015)
under APA extended to claim against
754 (D.C. Cir.
Law; Civil
Secretary of Department of the Interior
2016) (per
Procedure and
seeking tribal recognition, but the tribe failed
curiam)
Jurisdiction
to exhaust administrative remedies.
Food & Water Watch,
Plaintiffs lacked standing to challenge poultry
aff'd, 808 F.3d
Civil Procedure
Inc. v. Vilsack,
processing regulations.
905 (D.C. Cir.
and Jurisdiction
79 F. Supp. 3d 174 (2015)
2015)
Congressional Research Service

72

The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Dist. No. 1, Pac. Coast
Plaintiff union had not reasonably attempted
appeal dismissed, Labor Law
Dist., Marine Eng’rs’
to exhaust contractually-required arbitration
No. 15–7001,
Beneficial Ass’n, AFL-CIO
procedures prior to filing suit.
2015 WL
v. Am. Mar. Officers,
4075840 (D.C.
75 F. Supp. 3d 294 (2014)
Cir. May 28,
2015)
United States v. Turner,
Information in warrant was sufficient to

Criminal Law
73 F. Supp. 3d 122 (2014)
support probable cause to search.
and Procedure
Kyle v. Bedlion,
Denied motion for partial summary judgment

Criminal Law
2014 WL 12539324
in wrongful arrest case.
and Procedure
(2014)
Pencheng Si v. Laogai
False Claims Act claim failed to comply with

Civil Procedure
Rsch. Found.,
the pleading requirements of Federal Rule of
and Jurisdiction
71 F. Supp. 3d 73 (2014)
Civil Procedure 9(b).
A Love of Food I, LLC v.
Franchisee was entitled to summary judgment
Approaches to
Maoz Vegetarian USA,
on failure-to-register and failure-to-disclose
Statutory
Inc.,
claims, but could not show damages.
Interpretation;
70 F. Supp. 3d 376 (2014)
Franchisor was entitled to summary judgment
Business and
on claim related to unlawful representations.
Employment
Material factual issues prevented summary
Law
judgment on other false representation
claims.
Dist. No. 1, Pac. Coast
Whether a col ective bargaining agreement
aff'd, 815 F.3d
Labor Law
Dist., Marine Eng’rs’
had expired was a matter the parties had
834 (D.C. Cir.
Beneficial Ass’n, AFL-CIO
agreed to arbitrate.
2016)
v. Liberty Maritime Corp.,
70 F. Supp. 3d 327 (2014)
Depomed, Inc. v.HHS.,
Governing statute unambiguously required
appeal dismissed, Approaches to
66 F. Supp. 3d 217 (2014)
FDA to grant marketing exclusivity to drug
No. 14–5271,
Statutory
that FDA had cleared for sale and designated
2014 WL
Interpretation;
an orphan drug.
5838247 (D.C.
Administrative
Cir. Nov. 7,
Law
2014)
Sierra Club v. U.S. Army
Federal agencies were not obligated to review aff’d, 803 F.3d
Environmental
Corps of Eng’rs,
environmental impact of a domestic oil
31 (D.C. Cir.
Law
64 F. Supp. 3d 128 (2014)
pipeline to be constructed on mostly
2015)
privately-owned land, in part because there
had been no “major federal action” that
would trigger NEPA review.
Watervale Marine Co.,
U.S. Coast Guard’s determination of the
aff’d on other
Approaches to
Ltd. v. U.S. Dep’t of
conditions upon which foreign vessels would
grounds sub nom. Statutory
Homeland Sec.,
be released from custody after violating
Watervale
Interpretation;
55 F. Supp. 3d 124 (2014)
certain pol ution rules was nonjusticiable as
Marine Co. v.
Administrative
committed to agency discretion by law.
U.S. Dep’t of
Law
Homeland Sec.,
807 F.3d 325
(D.C. Cir. 2015)
United States v.
Defendant’s statements made during the

Criminal Law
Richardson,
execution of a search warrant, while the
and Procedure
36 F. Supp. 3d 120 (2014)
defendant was in custody, were not the
product of police interrogation.
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The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Subsequent
Case
Holding
History
Section(s)
Sickle v. Torres Advanced Plaintiffs could not bring retaliatory
aff’d in part and
Business and
Enter. Sols., LLC,
termination claims without first exhausting
rev’d in part, 884
Employment
17 F. Supp. 3d 10 (2013)
administrative remedies under the Longshore
F.3d 338 (D.C.
Law
and Harbor Workers’ Compensation Act.
Cir. 2018)
Patterson v. United States, Police officers were not entitled to qualified

Stare Decisis;
999 F. Supp. 2d 300
immunity on First and Fourth Amendment
Civil Rights and
(2013)
claims and false arrest claims arising out of
Qualified
arrest for using profanity in a public park.
Immunity; First
Amendment
Sierra Club v. U.S. Army
Plaintiffs failed to establish that federal law

Environmental
Corps of Eng’rs,
required further environmental review of the
Law
990 F. Supp. 2d 9 (2013)
environmental impacts of a domestic oil
pipeline, and failed to demonstrate imminent
irreparable harm from construction of the
pipeline.
Am. Meat Inst. v. U.S.
First Amendment, statutory, and APA claims
aff’d, 746 F.3d
Approaches to
Dep’t of Agric. (USDA),
challenging a USDA country-of-origin labeling
1065 (D.C. Cir.
Statutory
968 F. Supp. 2d 38 (2013)
requirement were unlikely to succeed on
2014)
Interpretation;
their merits.
Administrative
Law; First
Amendment
Source: Congressional Research Service.

Author Information

David Gunter, Coordinator
Michael A. Foster
Section Research Manager
Legislative Attorney

Peter G. Berris
Eric N. Holmes
Legislative Attorney
Legislative Attorney

Kate R. Bowers
Joanna R. Lampe
Legislative Attorney
Legislative Attorney

Valerie C. Brannon
Sean M. Stiff
Legislative Attorney
Legislative Attorney

Acknowledgments
The authors are grateful for the research and analysis performed by Section Research Manager Juria L.
Jones, Law Librarian Laura Deal, and Law Librarian Melissa Scheeren, all of CRS’s American Law
Division.
Congressional Research Service

74

The Nomination of Judge Ketanji Brown Jackson to the Supreme Court

Disclaimer
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Congressional Research Service
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