Great Antidote Deep Dive: Clark Neily on the Supreme Court's New Justice

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Juliette Sellgren and Clark Neily

Ketanji Brown Jackson, the newest Supreme Court Justice, has a unique legal qualification among the Justices - experience arguing against the government. Sellgren and Neily discuss how this might influence her judicial philosophy and much more related to the US justice system.

In this episode of The Great Antidote, guest Clark Neily and host Juliette Sellgren discuss Ketanji Brown Jackson, the newest Supreme Court Justice, as well as amicus briefs, adversarial litigation, judicial philosophy, and more.

Neily is the senior vice president of legal studies at the libertarian public policy think tank the Cato Institute. Previously, Neily was a senior attorney and constitutional litigator at the Institute for Justice, a libertarian, nonprofit, public interest law firm. Neily served as co-counsel in District of Columbia v. Heller, a landmark Second Amendment Supreme Court Case and helped litigate Kelo v. City of New London. Neily draws on his own experience as a public interest focused lawyer to think about the difference in perspective of someone trained and experienced at arguing against (instead of for) the government.

Juliette Sellgren begins with one of her signature questions. What does Neily think that young people should know? Neily wants to remind people that some things aren’t just a matter of opinion. There are objective truths and facts that are knowable and they should be recognized as things that are different from preferences and opinions.

Sellgren quotes from a March 2022 blog post by Neily where he writes, “She would be the first justice who worked as a public defender, and, unlike most of the other Justices, she never served as a prosecutor or other courtroom advocate for government.”

Key Quote
(from Clark Neily)

Our federal judiciary, emphatically including the US Supreme Court, is wildly, disproportionately made up of people who did that work [prosecuting] at some point in their career. Very few lawyers, statistically speaking, have ever been a courtroom advocate for government, but a huge percentage of sitting federal judges and Supreme Court Justices have done that work. And so I think to have an institution that is so unbalanced towards people who've chosen a particular career path that involves advocating for the power and prerogatives of government is a terrible mistake; To allow an institution like the federal judiciary where probably the most important thing they do is adjudicate disputes between government trying to assert power and individuals trying to push back against that power and who gets to decide those disputes? An institution that is wildly, disproportionately composed of people who used to represent the government in court. And Ketanji Brown Jackson represents a fresh approach and a pushback against this decades-long trend.

Questions that Neily and Sellgren explore are:

What kinds of cases might Jackson’s background give her a different perspective on?
Why is the imbalance between Supreme Court Justices backgrounds (as opposed to all lawyers backgrounds) so skewed in favor of former prosecutors and government advocates and what are the negative consequences of that?
Can we trust Democrats and Republican appointments to be fair in their rulings or should we assume their ruling based more on ideology than the facts of the cases?
How should one respond to critical comments (like those from Tom Cotton and Ted Cruz) about a public defender in this role?

Key Quote discussed
(from Jackson at her confirmation hearing)

I believe that the Constitution is fixed in its meaning… I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.

One thing he’s changed his mind about was going to law school and being a lawyer. As an undergraduate he had a VERY negative view of lawyers. But after 25 years, his perspective has changed, he encapsulates his more mature thoughts like this: There will always be disputes between people and between people and their government and it’s important that they be resolved peacefully. Our justice system is designed to provide just results in a peaceful manner and I didn’t appreciate that when I was younger.

This is Clark Neily’s second time on the The Great Antidote podcast. You can listen to his first episode on Police Abuse and What to do About It from June 2020.

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Clark Neily on the Supreme Court's New Justice

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