This overview of Supreme Court Nominee Ketanji Brown Jakson, was sent as part of NWC’s Sunday Reading series that aims to educate supporters about specific whistleblower issues. For more information like this, please join our mailing list.
On February 25, 2022, the White House officially announced President Biden’s Supreme Court nominee in the wake of Justice Stephen Breyer’s retirement. The nominee, Judge Ketanji Brown Jackson, has a consistent record of praise from across the political spectrum, and this Sunday Reading will explore the Judge’s position on whistleblower issues and whether she is the right choice for whistleblowers.
There are important cases on the Supreme Court’s docket for the next session, including cases involving whistleblower claims that a potential Justice Jackson may be ruling on. Judge Jackson’s confirmation bring a new perspective to the Court and looking at her background and judicial philosophy can help us understand how she might rule on whistleblower related cases.
Judge Jackson’s History:
Judge Jackson clerked for Justice Breyer, the very justice whom she would be replacing if confirmed. Jackson spent years as a public defender, arguing criminal defense cases on behalf of those who could not afford an attorney, and would be the first former public defender to serve on the Supreme Court. Jackson’s work as Vice Chair of the U.S. Sentencing Commission echoes her previous public defense work, as she was motivated by the aim of reducing sentencing disparities. In 2012, President Barack Obama nominated Judge Jackson to the U.S. District Court for the District of Columbia, where she spent more than seven years as a district judge. Her confirmation for both positions was bipartisan.
Judge Jackson then became one of President Biden’s first judicial nominees, being confirmed to the United States Court of Appeals for the D.C. Circuit early in the Biden presidency. The D.C. Circuit is known as a common source from which Presidents choose Supreme Court nominees, as Congress itself lies within its jurisdiction, allowing unique Constitutional questions to be explored by its judges.
The next Supreme Court session will be important for whistleblowers and whistleblower issues: the court has already decided to hear a False Claims Act case involving allegations that major insurer Kaiser Permanente provided Medicare with false diagnoses codes resulting in $1 billion of fraud. This case will decide whether the government will continue to have as much power in dismissing cases brought under the False Claims Act, when whistleblower claims with merit being dismissed regardless remains a major problem in prosecuting fraud.
The impact that Supreme Court decisions can have on the detection of fraud has already been seen, with the circuit courts splitting in their interpretation of the recent Supreme Court case Universal Health Services, Inc. v. United States Ex Rel. Escobar, creating an obstacle for many whistleblower claims.
The Department of Justice, often responsible for many healthcare fraud prosecutions, like the one against Kaiser, reported $5.6 billion in successful settlements and judgments in fraud cases, but Whistleblower Network News noted that at the same time rewards to whistleblowers continue to fall. This is in stark contrast to other agencies, like the SEC and IRS, whose whistleblower programs have seen successful prosecutions from whistleblower information, increased financial recovery, and increased whistleblower rewards.
Judge Jackson’s time on the D.C. Circuit has led to a ruling in the favor of the labor union AFL-CIO against the Federal Labor Relations Authority, striking down regulations restricting union protections for government workers. Employment disputes are often closely linked with whistleblower issues, and Judge Jackson’s position in that case offers hope as to how she might treat future whistleblower issues that come before the Supreme Court.
In 2014, Judge Jackson issued an opinion in Watervale Marine Co., Ltd v. Department of Homeland Security, a case concerning a company accused of violating the Act to Prevent Pollution from Ships (“APPS”). In a whistleblower complaint, it was alleged that Watervale was falsifying the Oil Record Books of four vessels, and the Coast Guard was able to investigate these claims before verifying them and retaliating against Watervale accordingly. Judge Jackson ruled in favor of the government, affirming that it had the power to limit movement of the ships during the whistleblower prompted investigation, and the power to enforce anti-pollution laws after the claims were proven.
Our Hope for Judge Jackson:
Disagreements between different circuit courts on the interpretation of whistleblower laws make Supreme Court decisions important in shaping the body of law governing whistleblower claims. Based on her history of ruling in favor of unions and the government’s ability to enforce laws that include whistleblower provisions, we anticipate that — if confirmed — Judge Jackson will decide these important cases in favor of whistleblowers.
National Whistleblower Center closely monitors, and is actively involved in, whistleblower cases that come before the Supreme Court. We frequently submit amicus briefs in support of whistleblowers. This work is only possible with your support. Thank you for reading, and for helping whistleblowers report fraud as safely and impactfully as possible, please share this article and donate today to support our Sunday Readings.
This story was researched and drafted by NWC Intern Harshita Bondhi, a Political Science major at the University of California, Davis.