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Ketanji Brown Jackson’s nomination signals change, but court’s conservative bent remains

President Biden and Judge Ketanji Brown Jackson watched from the White House as the Senate voted to confirm her.Al Drago/NYT

WASHINGTON — Ketanji Brown Jackson made history on Thursday by becoming the first Black woman confirmed to the Supreme Court, an event that sparked celebration among Democrats who see her barrier-breaking ascension as a sign of hope for progressive priorities and the end of an infuriating losing streak on high court nominees.

But Jackson is joining a court whose conservative wing has been expanded and reinforced by former President Donald Trump’s three nominees, limiting her potential impact — at least in the short term — on the nation’s most contentious legal disputes.

The court’s 6-3 conservative majority — gained after Republicans blocked former President Barack Obama from filling a vacancy during his term and then rushed to fill another at the end of Trump’s — is poised to show its power in coming weeks.

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Before Jackson even takes her seat this summer, the court is expected to issue decisions that limit, or quite possibly end, the constitutional right to abortion and expand gun rights. Next year, the court could prevent colleges from taking race into account in admissions, and down the line could roll back recent gains in LGBTQ rights.

“They’re flexing their muscles. They’re trying to figure out how far right they can go and how fast,” said Anna O. Law, an associate political science professor and constitutional rights expert at the City University of New York, Brooklyn College.

Jackson is joining the court at a pivotal moment. Its role as the ultimate arbiter in an increasingly divided nation has led to highly partisan battles over vacancies and historically narrow confirmation votes. The Senate confirmed Jackson 53-47, a far cry from the 87-9 approval received in 1994 by Stephen Breyer, the retiring justice whose seat she will be taking. Public support for the court has fallen to 40 percent, according to a Gallup poll last fall, the lowest in the two decades the company has tracked it.

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Some liberals are pushing for major reforms, including term limits on what are now lifetime appointments and expanding the number of seats. Justices are publicly expressing concern about the danger if they’re viewed, in conservative Justice Amy Coney Barrett’s words, as “a bunch of partisan hacks.”

Chief Justice John Roberts, a conservative nominated by George W. Bush, joined the court’s three liberals this week in a dissent that criticized his five conservative colleagues for going “astray” and abusing the court’s emergency powers to reinstate a Trump-era environmental rule without the usual briefs and oral arguments.

“The court has no army. It has no spending budget. It’s only as powerful as it’s perceived to be legitimate,” said Allison Orr Larsen, a professor at William & Mary Law School. “And so to the extent the public starts thinking about it as nine politicians in robes, that’s very dangerous for the court as an institution. And I think Chief Justice Roberts, as well as some of his other colleagues on the court, are very aware of that.”

There’s little Jackson, with the court’s other two liberals, Sonia Sotomayor and Elena Kagan, will be able to do in the short term to derail the conservative push unless the court’s makeup changes, experts said. She likely will be relegated for the foreseeable future to writing dissents on decisions involving the nation’s most controversial issues.

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Still, dissents have a value. The late Justice Ruth Bader Ginsburg once said they are written “not for today but for tomorrow” with the hope they will form the basis for future opinions on the same matters. Jackson, 51, could be on the court for years — long enough to see the majority potentially shift back to liberals. In the meantime, she still has the potential to influence some of the court’s decisions, said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law.

“She brings unique experiences to the court and we know that can influence justices in some cases,” he said. “She’s not going to change anybody’s mind with regard to the abortion issue or the gun issue, but she’s the first justice in history to have ever been a public defender, she’s the first Black woman to ever serve on the court, and these things could really influence others.”

Still, Jackson faces a solid conservative majority that can prevail on cases even with the defection of one of its members. The court is more conservative than it’s been since at least 1950, according to a statistical model by Michael A. Bailey, a professor at Georgetown University’s McCourt School of Public Policy.

And it probably will stay that way for years. A simulation by Princeton professors Charles Cameron and Jonathan P. Kastellec determined the court is likely to have a conservative majority until the 2050s.

“Really big changes will require multiple conservative departures,” Cameron said in an e-mail, noting the “enormous” impact of adding the three relatively young Trump selections. “In essence, conservatives have won the battle over the court, possibly for decades.”

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The biggest impact could be on abortion rights, guaranteed by the court’s landmark 1973 Roe v. Wade decision. As a candidate, Trump promised to appoint justices who would overturn Roe.

Trump’s picks joined three sitting conservative justices, Roberts, Clarence Thomas, and Samuel Alito. Legal experts predict at least five of those six justices will vote to uphold a Mississippi law that prohibits abortions after 15 weeks of pregnancy. The Roe decision said that states could not ban abortion until a fetus could survive outside the womb. At the time, that was defined as after the first trimester, or 28 weeks. It’s now considered to be about 23-24 weeks.

Thomas has been outspoken about his opposition to Roe, saying in a 2020 dissent that it did not have “a shred of support” from the Constitution. Thomas and Alito appear ready to use that case to explicitly overturn Roe, with the question being whether at least three of the other conservatives would join them in a decision expected by the end of June.

The uncertainty over that ruling shows the court is not as conservative as liberals contend, said Adam J. White, a senior fellow at the American Enterprise Institute, a conservative-leaning think tank.

“If this were a hard-right court, it would be a foregone conclusion about what would happen. Roe is the most criticized decision of the last 50 years, and it would be a no-brainer,” said White, who also is codirector of the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University.

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But other legal experts said the court has shifted much further right with the Trump picks. An analysis of decisions in the court’s 2020-21 term — the first after Barrett replaced the liberal Ginsburg — found the median justice had shifted right, from Roberts to Trump pick Brett Kavanaugh.

Although Kavanaugh has joined with Roberts and the three liberals to form a majority on some key rulings, including upholding President Biden’s vaccine mandate for health care workers in January, he’s still viewed as a much more conservative swing vote. And the decisions by the conservative majority have a stronger edge to them, said Gloria J. Browne-Marshall, a constitutional law professor at John Jay College of Criminal Justice.

“It’s, ‘How deeply conservative can we make this opinion,’ ” she said.

More of those decisions are expected. By the end of June, the court will rule in a case that challenges New York’s more than 100-year-old handgun-licensing law. The conservative majority could expand the court’s 2008 decision that the Second Amendment protects a person’s right to have a gun at home by broadly striking down New York’s restrictions on carrying a weapon outside the home.

Next term, the court will hear a case challenging Harvard’s use of race in its admissions. Jackson said during her confirmation hearings that she planned to recuse herself from that case because she has served on the university’s Board of Overseers in a six-year term that ends this spring. And the court could rule in coming terms on LGBTQ rights as legal challenges are expected to laws enacted by several Republican-led states that limit those rights, such as banning transgender students from playing girls’ or women’s sports.

Thomas has been clear about his opposition to the use of race in college admissions decisions and Browne-Marshall said it’s “a critical loss” that Jackson’s voice won’t also be heard on that case.

“It would be informative for all of us to know the position of another African American on the court on affirmative action and we’re going to miss that,” she said.

But while Jackson will sit out that case, and likely be in the minority on most major rulings for the next several years, she’ll still have an impact, said Law, the Brooklyn College professor.

“I hope she’ll bring novel legal arguments and different ways of looking at the cases than the majority did,” she said. “But I think for now, her influence will be limited until there’s another personnel change on that court.”



Jim Puzzanghera can be reached at jim.puzzanghera@globe.com. Follow him on Twitter: @JimPuzzanghera.