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What is nominee Jackson’s record on religious freedom?

Written by William C. Duncan

March 3, 2022

Judge Ketanji Brown Jackson, whom President Joe Biden has nominated to replace Justice Stephen Breyer on the U.S. Supreme Court, has been serving on the U.S. Court of Appeals for the D.C. Circuit since 2021. Before that, she was a federal trial court judge in D.C., starting in 2013.

Jackson had served as a clerk to Breyer after graduating from Harvard Law School. Justice Brett Kavanaugh had similarly served as a clerk to the justice he replaced, Anthony Kennedy, and Chief Justice John Roberts replaced William Rehnquist, for whom he had clerked.

If confirmed, Jackson would maintain the balance on the court between graduates of Harvard Law School and those of Yale Law School (currently 4 and 4). Only Justice Amy Coney Barrett went to a different law school – Notre Dame.

Breyer often ruled in favor of religious freedom claims during his tenure on the Supreme Court. The senators considering her nomination will likely ask about this topic during Jackson’s confirmation hearings.

Jackson does not have an extensive record on these kinds of cases, particularly with a short tenure on the court of appeals. SCOTUSblog highlights one prominent public statement:

At her confirmation hearing in April 2021, Jackson faced questions about her service from 2010 to 2011 on the board of Montrose Christian School, a Maryland private school that has since closed. Sen. Josh Hawley, R-Mo., noted that the school’s statement of faith indicated that “[w]e should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death” and that marriage should be limited to a man and a woman. Hawley noted that Barrett had been “attacked” for serving on the board of a Christian school with similar positions, and he asked Jackson whether, based on her service at Montrose Christian, she believed in “the principle, and the constitutional right, of religious liberty.”

 

“I do believe in religious liberty,” Jackson told Hawley. It is, she said, a “foundational tenet of our entire government.” But Jackson distanced herself from the Montrose Christian statement of faith, telling Hawley that she had “served on many boards” and did not “necessarily agree with all of the statements … that those boards might have in their materials.” And in this case, she added, she “was not aware of” the statement of beliefs.

As a trial court judge, Jackson issued opinions in two cases raising religious freedom issues.

In one case, Jackson allowed a lawsuit brought by an employee of the Postal Service to proceed because the employee had made a plausible claim that he was transferred from his position because of a dispute with his superior about playing religious music at work. The employee alleged other employees were allowed to listen to secular music without interference. The suit did not resolve the claim or discuss the religious freedom issue at length, however.

In the second case, Jackson was part of a special panel of judges considering a complaint about a federal judge who talked about religious beliefs regarding the death penalty in a law school speech. The panel concluded the remarks did not violate rules of ethics for judges.

There is not much information, then, to assess how Jackson would likely rule in religious freedom disputes that come before the court. Her support for the principle of religious freedom, though, is a good sign. We are likely to learn more about this issue soon as confirmation hearings begin.

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