Libertarians can anticipate many future disagreements with the U.S. Supreme Court’s newest confirmed justice, Ketanji Brown Jackson. But Jackson’s record on criminal justice issues offers some cause for optimism.
Consider Patterson v. United States, a 2013 case involving the arrest of an Occupy D.C. protester, Anthony Michael Patterson, for using profanity in a public park. Officers told Patterson to stop cursing at Tea Party activists. When Patterson refused, he was arrested for disorderly conduct. The charges against him were later dropped.
Patterson sued the officers over his bogus arrest, which was triggered by nothing more than the lawful exercise of his First Amendment rights in a public place. The officers responded by invoking qualified immunity, a controversial doctrine that routinely shields state officials from lawsuits alleging constitutional violations.
Jackson, then a judge on the U.S. District Court for the District of Columbia, practically scoffed at the officers’ arguments and denied them qualified immunity. “The right to be free from a retaliatory arrest in the absence of probable cause is clearly established in this jurisdiction,” she ruled. “A police officer is unquestionably on notice that arresting a speaker solely based on the content of his speech and without probable cause to believe that he has committed a crime is a violation of the First Amendment.”
This was not necessarily an open-and-shut case. Other federal judges have granted qualified immunity in cases involving even more egregious police misconduct.
Jackson also will bring some much-needed professional diversity to the Court. As Cato Institute criminal justice scholar Clark Neily has pointed out, there is a “wild imbalance” on the federal bench “between judges who used to represent the government in court and judges who used to challenge the government in court.” Between 2005 and 2007, Jackson worked as an assistant federal public defender in Washington, D.C., a job that involved much battling against the government inside and outside the courtroom. Let’s hope that experience stuck with her.
Libertarians may also take heart from an exchange between Jackson and Sen. John Cornyn (R–Texas) during her March confirmation hearing before the Senate Judiciary Committee. After Cornyn complained that the Supreme Court had thwarted the will of the majority when it struck down certain democratically enacted state regulations, Jackson calmly and correctly replied: “Well, senator, that is the nature of a right. When there is a right, it means that there are limitations on regulation.”
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