The Supreme Court, a place bound by tradition and formality, will hold one of its most scripted rituals on Friday for a justice whose appointment broke the mold of history.
The investiture ceremony for Ketanji Brown Jackson, the first Black woman on the bench, will be marked by pomp from the ages, including the use of Chief Justice John Marshall’s historic bench chair and commission language that dates to the first justice, John Jay, appointed by President George Washington.
“Know ye,” the presidential commission, as read by Clerk of Court Scott Harris, will begin, “that reposing special trust and confidence in the wisdom, uprightness, and learning of Ketanji Brown Jackson … in testimony whereof, I have caused these letters to be made patent and the seal of the Department of Justice to be hereunto affixed.”
President Joe Biden, who selected Jackson, will attend the Friday morning ceremony, a White House official told CNN. It is customary before the event for the president to chat privately with the justices in a conference room and to sign the court’s oversized guest book.
The official told CNN that Vice President Kamala Harris, first lady Jill Biden and second gentleman Doug Emhoff will also be at the investiture.
No cameras are allowed inside the courtroom, and photographers usually wait outside for the new justice to emerge from the ceremony and take the traditional walk down the 36 marble steps at the front of the columned building. Per custom, Jackson will be accompanied by Chief Justice John Roberts.
In the court’s 233-year history, no African American woman has participated in this rite and gone on to decide the law of the land. Of the total 116 justices over time, all but eight have been White men. Jackson is the sixth woman on the bench; three of the others are still serving: Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.
The symbolic moment comes as Biden, who vowed during his 2020 campaign to appoint the first Black woman justice, continues to emphasize diversity in his judicial picks. He has nominated 143 federal judges, 68% of whom are women and 66% people of color. He has nominated 13 Black women as circuit court judges, with seven confirmed so far.
Jackson, 52, who previously sat on US district and appellate courts, took her official Supreme Court oaths at the end of June when Justice Stephen Breyer retired. Jackson has been voting on emergency cases and preparing for the upcoming 2022-23 session since then. She participated in Wednesday’s first closed-door session for the new term, as the nine culled through case petitions that had arrived over the summer and hashed out procedures for their building, opening to the public for the first time since it was closed in March 2020 because of Covid-19.
The special sitting of the court to receive the commission of a new justice was instituted in the early 1970s by then-Chief Justice Warren Burger, who reveled in the trappings of the institution.
Burger also started the use of the Marshall chair, distinguished by a black horsehair seat and backrest, with brass nail trim. The new justice sits in the chair before being escorted to the bench to take the oath.
Friday’s investiture, the first for a Democratic appointee in 12 years, is also likely to bring out, along with family and friends of Jackson, progressive luminaries of the law. Earlier such events for GOP appointees saw the Republican old guard hobnobbing in the courtroom before the event. An invitation-only reception will be held at the court afterward. Outside, crowds of well-wishers sometimes gather. Occasionally, it’s protesters.
As carefully arranged as these investitures are, they have not been without glitch. The attorney general usually stands at the lectern to present the commission, which has been previously signed by the president.
In November 2018, one day before the formal investiture for Brett Kavanaugh, President Donald Trump fired Attorney General Jeff Sessions, for wholly unrelated reasons. Acting Attorney General Matthew Whitaker then undertook the duty of referring the parchment commission to the court.
Another asterisk to the Kavanaugh ceremony: Justice Ruth Bader Ginsburg‘s black leather chair at the bench was empty. She had fallen and fractured her ribs. When she was hospitalized for that injury, physicians discovered lung cancer, for which she had surgery that December. Ginsburg died in September 2020.
The courtroom audience for the investiture of her successor, Barrett, was scaled back because of pandemic precautions, and for that event, held in 2021, Kavanaugh’s chair was unoccupied. He had just tested positive for Covid-19.
Current Attorney General Merrick Garland will be in place on Friday to ask Clerk Harris to read the parchment commission for the record. Garland at one time might have been at the elevated bench himself. Former President Barack Obama nominated Garland in 2016 to succeed the late Justice Antonin Scalia, but Senate Republicans blocked action on the nomination.
Breyer is expected to be back in the courtroom for the special sitting. He will watch from one of the spectator seats close to the front of the room. Among the other judicial dignitaries expected are colleagues from the US Court of Appeals for the DC Circuit, where Jackson sat from mid-2021 until her high court confirmation this year and the US District Court in DC where Jackson first wore the black robe, including Paul Friedman and Ellen Huvelle.
Other close friends and mentors on her list are US District Court Judges Patti Saris, of Massachusetts, and Landya McCafferty, of New Hampshire, as well as US Appeals Court Judge Ray Lohier, of New York.
The new justice’s husband, Patrick Jackson, a surgeon, will be in the courtroom, along with their daughters Leila and Talia. Jackson grew up in the Miami area, and her parents who still live in Florida, Johnny and Ellery Brown, are scheduled to attend the ceremony.
The first justice to be seated, for investiture purposes, in the chair of Chief Justice Marshall (who served 1801-1835) was Lewis Powell in January 1972. He was immediately followed by William Rehnquist, sworn in on the same day as an associated justice. (Rehnquist became chief justice in 1986.)
Powell was succeeding Hugo Black, and Rehnquist, John Marshall Harlan. (Both predecessor justices had been ailing when they left the bench in September 1971 and died soon after.)
The Powell and Rehnquist appointments were the third and fourth of then-President Richard Nixon. According to The New York Times, a single picketer marched outside the investiture with a sign that said, “America mourns the death of an institution.”
It just so happens that Sandra Day O’Connor, a dear friend of Rehnquist from Arizona, was there that January 7, 1972, day. It was her first time in the courtroom. And within a decade, O’Connor, a lawyer, state senator and then state court judge, sat in the John Marshall chair. President Ronald Reagan appointed her in 1981, making O’Connor the nation’s first woman justice.
Now Jackson will be the first African American woman to rule on high court cases. The nine justices will return to the courtroom on Monday for the beginning of the 2022-23 session.
Already on the calendar are disputes testing whether colleges and universities may continue to use students’ race as a factor in admissions for campus diversity and the breadth of Voting Rights Act protections against discriminatory electoral practices.
After the commission is read, Roberts will administer the judicial oath, during which a new justice swears to “administer justice without respect to persons … do equal right to the poor and to the rich … faithfully and impartially discharge and perform all the duties incumbent upon” an associate justice of the Supreme Court “under the Constitution and laws of the United States.”
The entire ceremony usually lasts only about five minutes.
When Roberts and Jackson then stand out front, as photographers capture the scene, they will be joined, per the schedule, by Jackson’s husband.
Rarely is much said in this one moment in the public lens.
But back in 1981, when Burger descended the steps with O’Connor, the chief justice quipped to photographers, “You’ve never seen me with a better-looking justice, have you?”
If Burger’s remark put off O’Connor, the first woman justice didn’t let it show.