Will Jackson be the Supreme Courts next great opponent of capital punishment?

Jackson has written two opinions so far (including one issued just last week). Both of them were dissents in capital cases. The opinions are short and fact-bound and do not weigh in on the constitutionality of capital punishment. Nevertheless, they may offer a glimpse at how Jackson a former federal public defender and the only sitting justice with significant criminal-defense experience will approach the issue.

I see her dissents in death-penalty cases as a reflection of a judicial philosophy thats informed by her extensive experience in the criminal legal system, said Ngozi Ndulue, the deputy director of the Death Penalty Information Center. The cases in which she dissented are ones where there are significant due process and overall fairness issues.

Jacksons first opinion came on Nov. 7, when she dissented from the courts decision not to hear the case of Davel Chinn, an Ohio man who was sentenced to death for a 1989 murder during an attempted robbery. Chinn showed that prosecutors withheld evidence that undermined the credibility of the states key witness, but a lower court concluded that the evidence would not have made a difference, and a majority of the Supreme Court declined to reconsider that ruling.

Because Chinns life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial, Jackson wrote, she would have revived Chinns claim. Sotomayor joined her dissent.

Jacksons second Supreme Court opinion came in the case of Kevin Johnson, a Black man from Missouri who was convicted of killing a white police officer in 2005. Under a recently enacted state law, a special prosecutor reviewed the validity of Johnsons conviction and found evidence of egregious racism by Johnsons original prosecutor (whose own father was a white police officer killed by a Black man). According to a court filing from the special prosecutor last month, the original prosecutor consistently made race-influenced decisions in his handling of capital homicides, including seeking the death sentence against Black defendants but not white ones. The special prosecutor urged Missouri courts to halt Johnson’s execution. Despite these developments, the Missouri courts did not give Johnson a hearing as required under state law.

With his execution imminent, Johnson sought an emergency stay from the Supreme Court on Tuesday. The court quickly rejected his request in a terse order. Jackson and Sotomayor noted that they disagreed with the courts order but said nothing more at the time. Later that day, Missouri executed Johnson by lethal injection.

Then, on Wednesday, Jackson did something unusual: She issued a four-page dissent explaining her reasoning. (Again, she was joined by Sotomayor.) Missouris failure to give Johnson the hearing that state law required was so fundamentally flawed, and so at odds with basic due process principles, that it likely violated Johnsons federal constitutional rights, Jackson wrote.

Jackson was under no obligation to voice her dissent. In death-penalty appeals and other emergency matters on the shadow docket, the justices typically do not explain themselves. The majority tends to rule in brief, one-line orders that use legal jargon to grant or deny relief, and dissenting justices tend to note their disagreement without further elaboration (if they even publicize their dissents at all). The last time any justice issued a post-hoc dissent from an order was in 2019.

It is too early to say whether Jackson will come to express serious institutional doubts about the death penalty, just as her two predecessors did. For now, her decision to write her first two opinions in the Chinn and Johnson cases suggests a more modest priority: As long as the court allows the machinery of death to continue operating, at least a few words of explanation are in order.