When Judge Ketanji Brown Jackson is sworn in as a new U.S. Supreme Court justice, she will face some important construction-related matters, including the latest in a series of cases aimed at defining, or redefining, the scope of federal jurisdiction over wetlands, certain types of streams and other bodies of water.
The Senate on April 7 voted 53-47 to confirm Jackson to be an associate justice on the High Court. Three Republicans—Susan Collins of Maine, Mitt Romney of Utah and Lisa Murkowski of Alaska—joined all 48 Democrats and two Independents to approve Brown to be the first Black woman to sit on the Supreme Court.
Jackson will begin her tenure this summer when Justice Stephen Breyer, one of three liberals on the court, steps down. She is expected to align with the liberal wing of the court.
In Jackson’s opening remarks at her Senate confirmation hearings, she described Breyer, for whom she clerked between 1999 to 2000, as a mentor, and said that she hoped to be able to carry on “in his spirit” at the court.
Since 2021, Jackson has served as judge on the U.S. Court of Appeals for the D.C. Circuit. Before that she was a U.S. District Court judge in D.C. for eight years. She was confirmed to both positions with bipartisan Senate support.
Brian Turmail, Associated General Contractors of America vice president of public affairs and strategic initiatives, said that it is difficult to predict how a justice will rule once confirmed.
But Turmail said in comments emailed to ENR, “Her confirmation is unlikely to change the overall conservative-leaning tilt of the Supreme Court.”
Environmental groups and organized labor praised Jackson’s confirmation.
Abigail Dillen, president of Earthjustice, said in a statement that Jackson “is the well-qualified, fair-minded Supreme Court justice we need in this critical moment for the environment.”
AFL-CIO President Liz Shuler, in a statement, said of Jackson, “Her intellect, legal knowledge and record of upholding justice under the law will be invaluable as she makes decisions that directly impact the lives of working people, and champions equal rights.”
Cases of Interest to Construction
The court is likely to rule by the end of its term in late June on two major environmental cases relevant to the construction industry. Jackson won’t be able to vote on one of those cases, West Va. v EPA—which deals with Clean Air Act issues—because she was not on the court at the time of the Feb. 28 oral arguments.
But Jackson is likely to be able to take part in oral arguments, and then vote, in a major Clean Water Act case. That matter, Sackett v. EPA, is on the list to be heard this term but has not yet been assigned an oral argument date.
The court agreed in late January to hear the case, which examining the long-debated question of how to define a key term in the clean water statute, “waters of the United States,” often referred to as WOTUS.
Under the clean water law, builders must obtain a permit from the U.S. Army Corps of Engineers to build near, among other things, wetlands that are close to federally protected bodies of water, such as major rivers.
In a 2006 case, Rapanos v. U.S., the High Court in a divided 4-1-4 ruling offered two different tests for determining whether waters fall under federal protections.
One test, advocated by the court’s conservative wing, excludes intermittent and ephemeral streams as well as headwaters from federal jurisdiction. The other test, outlined by Justice Anthony Kennedy, includes them.
The court’s present tilt is decidedly more conservative than in 2006. Legal observers have suggested that the court decided to take the Sackett case because several justices want to consider narrowing the definition of federally regulated waters.
Breyer was one of four justices to favor the broader clean water protections in Rapanos.
Larry Liebesman, a senior adviser with water resources consulting firm Dawson & Associates, said in an interview that looking at Jackson’s decisions in the federal district and appellate courts, “I’d say overall that she is not 100% in the environmental camp.”
Liebesman, a former trial attorney in the Justice Dept.’s Land and Natural Resources Division, said, She writes very long, detailed opinions. She’s rules against environmental issues in some cases, ruled for them in other cases.”
He adds, “She tends to defer to agency rules and regulations if there’s a reasonable basis for them in the law and if the agencies have come up with a record that supports that.”
Another case of interest to many in the construction industry is a challenge to President Joe Biden’s executive order mandating vaccines for federal contractors, Turmail says.
That matter is making its way through lower courts, but could end up at the Supreme Court, he says.
Ben Brubeck, vice president of regulatory, labor and state affairs for the Associated Builders and Contractors concurs. “While the U.S. Senate confirmation of Ketanji Brown Jackson will not change the composition of the U.S. Supreme Court, ABC will be interested to see how she and the other justices rule on the COVID-19 vaccination mandate cases, should such cases end back up at the high court.”
Other cases currently percolating include potential challenges to other Biden executive orders, including one mandating project labor agreements on federal projects, and another Clean Water Act lawsuit.
