Judge Ketanji Brown Jackson’s Labor Decisions

Jason Vazquez

Jason Vazquez is a staff attorney at the International Brotherhood of Teamsters. He graduated from Harvard Law School in 2023. His writing on this blog reflects his personal views and should not be attributed to the IBT.

On February 25, the White House announced that President Joe Biden intends to nominate Ketanji Brown Jackson, presently a Judge on the powerful United States Court of Appeals for the District of Columbia Circuit, to the Supreme Court seat soon to be vacated by Justice Stephen Breyer. If confirmed by the Senate, Jackson will become the first Black woman to serve on the nation’s highest court, fulfilling a long-overdue pledge that Biden delivered on the campaign trail.

Jackson was nominated to the D.C. Circuit last year. Prior to that, she spent eight years as a District Judge for the District of Columbia. Before ascending to the federal bench, Jackson briefly served as a federal public defender, a credential which has excited progressives. Although several major labor unions have applauded her nomination to the Court, relatively scant attention has so far been accorded Jackson’s jurisprudential record on labor and employment issues. While she has authored nearly 500 opinions during her tenure on the bench, Jackson hasn’t decided an abundance of labor or employment cases. Nevertheless, Judge Jackson has so far managed to hand down several prounion rulings, at least a couple of which were sufficiently notable to capture national media attention.

Just earlier this month, in her first opinion for the D.C. Circuit, Judge Jackson delivered an impressive win to public-sector unions. The case was AFL-CIO v. Federal Labor Relations Authority; it involved a challenge brought by several public-sector unions against a policy adopted by the Federal Labor Relations Authority designed to narrow the scope of workplace changes for federal employees subject to mandatory collective bargaining. Judge Jackson vacated, as arbitrary and capricious pursuant to the Administrative Procedure Act, the FLRA’s decision to reverse its longstanding interpretation of the Federal Service Labor-Management Relations Statute as obligating federal employers to bargain with their employees’ unions when they institute a workplace change that imposes a more than de minimis effect on employment conditions. Seeking to raise that threshold, the FLRA, controlled by Trump appointees, had promulgated the new policy that a federal agency would be required to bargain over only those management changes which had a “substantial impact on a condition of employment.” Jackson’s opinion dismissed the federal labor board’s policy reversal as an “unreasoned and unreasonable” abandonment of decades of precedent. Slate Magazine celebrated the ruling as “a major victory for federal unions.”

In addition, Jackson rendered a series of decisions favorable to labor as a trial judge. In 2018, for example, she made headlines when she invalidated three executive orders issued by then-President Trump which were designed, in her words, “to restrict the scope and effectiveness of federal employees’ right to collective bargaining.” Among other things, the EOs had limited the duration of contractual negotiations between unions and federal agencies, removed certain subjects from the scope of bargaining, restricted the ability of federal employees to participate in union activities at work, and rendered it easier for federal agencies to discharge employees. Striking down the EOs, Judge Jackson declared that “the President has overstepped his bounds,” for the challenged provisions, she asserted, “have the cumulative effect” of “evisercat[ing] the right to bargain collectively.” Although a conservative panel of the D.C. Circuit eventually overturned her ruling, Jackson articulated a forceful defense of the labor rights of federal employees.

Moreover, in 2020 District Judge Jackson, in a case brought by the AFL-CIO, enjoined central provisions of a regulation promulgated by the Trump NLRB which, to the delight of management-side lawyers, had been calculated to delay union elections. The rule sought to rescind an earlier NLRB regulation, issued in 2014 by the Obama Board, that had updated the Board’s election procedures to expedite the certification process for new bargaining representatives. The Trump Board declined to issue its rule through the APA’s notice-and-comment procedures, however, reasoning that, as one of “procedure,” it was statutorily exempt from such requirements. Judge Jackson disagreed. Given that the rule “reaches far outside the Board’s internal operations,” she concluded, it “must be held unlawful and set aside.”

To be sure, it may not be entirely fair to characterize all Jackson’s opinions as a District Judge as unabashedly pro-worker. In the case of Ross v. Lockheed Martin Corp., for instance, thousands of Black Lockheed Martin employees filed a putative class action against the weapons manufacturing behemoth alleging, pursuant to a Title VII disparate impact theory, that it had engaged in systematic racial discrimination. Jackson, presiding over the proceeding, rejected the plaintiffs’ motion for certification of the proposed class along with judicial approval of a preliminary settlement agreement worth $22.8 million. Jackson identified “several fairness-related red flags” in the settlement, most disturbingly, in her view, what she described as a “gross imbalance” between the claims at issue in the case compared with the “sheer breadth” of those the class members would contractually release. Such considerations led her to “the firm but reluctant conclusion” that the proposed settlement was “so potentially unfair that it cannot be preliminarily approved.” Moreover, Jackson similarly denied the plaintiffs’ motion for precertification discovery in a later iteration of the case. A retired U.S. judge, who presently serves as counsel at the law firm that litigated the case, was so embittered by Jackson’s decision to, as he put it, “g[i]ve the axe to a settlement designed to benefit numerous black workers,” that he sent Joe Biden a letter earlier this month urging the President to decline to appoint Jackson to the Court.


All told, the handful of firmly prounion rulings Jackson has issued from the federal bench suggest that she is a judge sympathetic to labor’s struggle. Against the backdrop of a Supreme Court that has historically displayed a devastating hostility to the working class, proponents of the labor movement ought not hesitate to embrace Judge Ketanji Brown Jackson’s nomination to the high court.

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