On February 25th, 2022, President Biden nominated Judge Ketanji Brown Jackson to become the 116th Associate Justice of the United States Supreme Court. The nomination is historic for obvious reasons, as Judge Jackson will be the first Black female justice.
It is also historic to yours truly for a much less obvious reason: Judge Jackson would become the first sitting Supreme Court Justice that I have argued a case in front of!
But before I talk about myself, let’s talk a little bit about this incredible jurist.
Judge Ketanji Brown Jackson: A Career Synopsis
Judge Jackson was born in Washington, DC, but was raised in Miami, Florida. She attended Palmetto Junior High School and Miami Palmetto Senior High School, where she served as student body president.
Judge Jackson attended Harvard University for both undergraduate and law school. Impressively, she graduated magna cum laude as an undergraduate while she subsequently graduated from Harvard Law School cum laude and served as editor of the Harvard Law Review.
Judge Jackson’s legal career is equally, if not more, impressive. She began her career as a Supreme Court Clerk for Justice Stephen Breyer, whose seat she has been nominated to fill after he announced his retirement earlier this year.
Following her Supreme Court Clerkship, Judge Jackson served as a Public Defender, representing criminal defendants who did not have the means to hire private counsel. This is of particular significance in that Judge Jackson will not only become the first black woman to serve on the Supreme Court, but she would also become the first former public defender to serve on the Supreme Court.
With that experience, she will be bringing new and perhaps overlooked perspectives and greater diversity with her to the Court.
In 2009, President Obama nominated Judge Jackson to serve as Vice-Chair of the U.S. Sentencing Commission. She was confirmed in 2010 with bipartisan support.
In 2012, President Obama again nominated Judge Jackson to be a district court judge for the U.S. District Court for the District of Columbia. She was again confirmed with bipartisan support.
It was in the role of a district court judge that I personally became aware of Judge Jackson’s acuity as a jurist when I had the pleasure of arguing in front of her.
In the moment of making arguments, one rarely thinks about what the future may hold for the judge you are arguing in front of, but in this case, Judge Jackson does stick out in mind because of how she handled the argument. A little more on that coming up….
In 2021, President Biden nominated Judge Jackson to the U.S. Court of Appeals for the D.C. Circuit where she was, once again, confirmed with bipartisan support. She remains in that role now.
Bracker & Marcus Argues Declined FCA Case in Front of Judge Jackson
In 2013, I found myself litigating a declined False Claims Act case in the U.S. District Court for the District of Columbia.
A declined case means that the Department of Justice declined to intervene in the case and my whistleblower client (and I, as his lawyer) were litigating the case without the government. The case was filed prior to Judge Jackson being nominated to serve on the U.S. District Court but had been reassigned to her once she was confirmed.
At the time, I did not know much about Judge Jackson, but I quickly learned that my client and I both were quite lucky to have her as our assigned judge.
The False Claims Act is a unique statute in that cases advance through the federal court system in a different manner than normal civil cases. As we have previously discussed, the case is originally filed under seal and can remain that way for many years before any actual litigation takes place.
Like the case I had in front of Judge Jackson, if the government declines to intervene, private litigants are able to litigate the case without the government (even though the real party in interest remains the government because the government, and taxpayers, have been defrauded of money). While declined FCA cases proceeding successfully without the government is becoming more common today, it was much rarer back in the early 2010s.
My oral argument in 2013 in front of Judge Jackson sticks out more than any argument I have done in my career. It was just different. Typically, when I am in front of a newer judge who does not appear to have significant experience with False Claims Act matters, I worry that I will have to spend a lot of my argument time educating the judge on the FCA and the procedural posture of the case, i.e. why the government declined the case.
That was not the case with Judge Jackson. Not only was she fully educated on the law, but she was also fully educated on the facts of our particular case. Like most lawyers who do oral arguments, I love to have questions from judges, because it means they are engaged, understand the importance of certain arguments, and demonstrate their knowledge and desire to press lawyers on their positions.
In my experience, the worst possible thing that can happen during an oral argument is to not be asked any questions.
Judge Jackson made the argument seamless. She asked important, smart questions that could only be the result of a dedicated judge who took a great deal of time to understand the legal and factual issues in front of her that day in 2013. To eat my own piece of humble pie, back then I was a young, inexperienced lawyer arguing a case against three corporate defendants who had hired expensive Big Law defense firm litigators.
It made no difference to Judge Jackson. She asked the right, tough questions of all of the lawyers, equally. In the end, she wrote a very good opinion in which my client largely prevailed.
Congratulations, Judge Jackson
While my endorsement does not mean a single thing to her confirmation to the Supreme Court, she certainly has it. And of course, I would like the opportunity to tell people I have successfully argued a case in front of a Supreme Court Justice!
If you have any additional questions about declined FCA cases or suspect fraud, as always, reach out to our Atlanta whistleblower attorneys for a free evaluation.