Lee A. Sheppard, The Judicial Experience of Circuit Judge Ketanji Brown Jackson, 174 Tax Notes Fed. 1467 (Mar. 14, 2022):
[E]mployers know that elite law schools train their graduates to be appellate judges. They don’t train them to be trial lawyers, trial judges, business planners, wealth advisers, or any of the myriad other practical jobs that lawyers do. Jackson, who has been an appellate judge only since June 2021, has done several of these regular lawyer jobs. She was an appellate public defender in the federal court for three years and sat on the D.C. federal district court for seven years. She was also an assistant special counsel to the United States Sentencing Commission.
Is Jackson’s extensive practical experience relevant? Although the Supreme Court is not a fact-finder, trial experience could be valuable. Bad factual records do make bad law. Some important cases have come to the Court with poorly developed factual records, like the Vietnam-era black armbands in high school case (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)). Readers will recall that the Court was factually clueless in more than one important tax case (Arkansas Best v. Commissioner, 485 U.S. 212, 222 (1988), and Frank Lyon Co. v. United States, 435 U.S. 561 (1978)). If a Justice Jackson sat up and said, “Really, counsel, is that plausible?” during oral argument, that would not be a bad thing. …
This article analyzes Jackson’s judicial record. Once again, as with the last four Supreme Court nominees, the real issue is administrative law. Can the government expand through administrative rulemaking? Or is enhancement of substantive rules the exclusive province of the legislature? That is highly pertinent to our readers, for whom administrative rulemaking is as or more important than statutory law. Many of the subjects Jackson considered as a federal district judge are controversial, like illegal immigration, but the legal issues are the same administrative procedure issues that our readers face when challenging tax regulations. …
“The important question for tax is whether, on the Supreme Court, the new justice would be similarly inclined to look through Treasury/IRS’s formal actions and explanations in order to consider perhaps underlying motivations,” [Steve R. Johnson of Florida State University College of Law] speculated.
