'Judges are not policymakers,' Supreme Court nominee Brown Jackson says

Climate and energy litigation got scant attention during U.S. Supreme Court nominee Ketanji Brown Jackson's confirmation hearings before the Senate Judiciary Committee.

But U.S. President Joe Biden's first pick for the high court — also the first Black woman tapped to be a Supreme Court justice — shed light on her approach to regulatory matters that may come before her if confirmed.

Much of the questioning during the first three days of hearings focused on Brown Jackson's sentencing decisions in criminal cases. Brown Jackson is a judge with the U.S. Court of Appeals for the District of Columbia Circuit after serving as a federal district court judge from 2013 to 2021.

Brown Jackson's nomination comes as the Supreme Court is poised to decide on cases that will have major implications for the energy sector.

"In the current term alone, the Supreme Court is addressing cases on issues that are foundational to who we are as a country," including "the legal authority of the [U.S.] Environmental Protection Agency to fight climate change," U.S. Sen. Dianne Feinstein, D-Calif., said during opening remarks March 21.

At the end of February, the high court heard oral arguments in West Virginia v. EPA (No. 20-1530), a challenge to the agency's authority to regulate greenhouse gas emissions from power plants under the Clean Air Act. The Supreme Court is also considering a case involving what waters should be subject to federal protections under the Clean Water Act.

Brown Jackson echoed past high court nominees in declining to comment on legal issues that may come before the court. With Brown Jackson selected to replace outgoing justice Stephen Breyer, who was nominated by Democratic former President Bill Clinton, her confirmation would be unlikely to tip the Supreme Court's ideological balance.

But the hearings provided a glimpse into Brown Jackson's judicial philosophy and approach.

'Judges are not policymakers'

In her decade on the bench, the judge has formed a methodology that she said helps her remain impartial and adhere to the limits on her judicial authority. "I have limited power, and I am trying in every case to stay in my lane," Brown Jackson said March 22.

If she determines that she has jurisdiction in a case, Brown Jackson will look at the text and, if that text is a legislative statute, consider Congress' purpose to avoid applying her personal views and preferences.

Supreme Court precedent is another restraint on judicial authority, Brown Jackson said, adding that all decisions from the high court are precedential and binding. The legal principle of stare decisis, under which legal precedents stand, is an "important pillar of the law," Brown Jackson said.

Brown Jackson did, however, cite circumstances where the Supreme Court could revisit precedent, such as when a decision was "egregiously wrong" or has not proven "workable over time" or if new facts or a new understanding of facts are presented.

Furthermore, Brown Jackson emphasized that considering the proper role of a judge is her "north star" and that judges "should not be speaking to political issues."

"I believe that judges are not policymakers," Brown Jackson said. "That we have a constitutional duty to decide only cases and controversies that are presented before us and that within that framework, judges exercise their authority to interpret the law, not make the law."

Brown Jackson's four days of confirmation hearings will conclude March 24, when the American Bar Association and outside witnesses are set to testify on her nomination.

The Senate Judiciary Committee is evenly split between Democrats and Republicans. Even if Brown Jackson's nomination gets a tie vote in committee, Senate rules will allow the ruling Democratic party to discharge her nomination to the full Senate. Supreme Court nominees only need a simple majority of senators to confirm their nomination, which Democrats could achieve along with a tie-breaking vote from Vice President Kamala Harris.

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