However, the court offers a possible workaround that would allow Jackson to still be considered by the Supreme Court for a dispute that could end the use of race in college admissions.
Her vote is unlikely to have a pivotal role on a court that has a conservative 6-3 majority who are skeptical about the role of race in education and voting.
In January, the court announced that it would hear the affirmative-action case. This case involves Harvard (private) and North Carolina (public). The justices stated that the case would not be heard until after October's new term begins, despite their already busy schedules. The case will be decided before June 2023.
Jackson's nominee for replacement, Justice Stephen Breyer intends to retire at the beginning of the summer recess. She would therefore be able to appear before the court to hear the case.
Jackson was a Harvard undergraduate and law student. The issue is that Jackson is now a member of Harvard's Board of Overseers. This is comprised of alumni. During the second day of questioning during her confirmation hearing by Republican Senator Ted Cruz of Texas, she was asked if she planned to withdraw from the case.
Jackson has not yet decided to withdraw from the Harvard case, but that doesn't mean she can't participate in affirmative action decisions. The Harvard and North Carolina cases are currently linked. Jackson could have the opportunity to participate in arguments and make a decision in both North Carolina and Harvard cases.
Similar events occurred in 2020 when Justice Sonia Sotomayor found a conflict between two states regarding presidential electors. They were not supposed to be heard together, so the court decided to issue its major decision in this case in which all of the justices were.
Federal law mandates that all judges must recuse themselves from cases in which there is a financial interest or where they were involved in the case in a earlier stage.
At Supreme Court confirmation hearings, affirmative action and the question of recusing in certain cases are both common topics. After a 2003 Supreme Court ruling that affirmative action would not be required in 25 years, affirmative action has been a common topic at Supreme Court confirmation hearings. Since then, the high court has taken up affirmative actions cases but left the original case . The court has become more conservative since then with the appointment of three justices by President Donald Trump. It seems more likely that the votes will overrule the 2003 case.
Jackson will be confirmed and the court will consist of four members who attended Harvard law school. This is the same number as now. Breyer, who Jackson would replace, and for whom she worked in her early legal career, also attended Harvard. Justice Elena Kagan, Chief Justice John Roberts and Justice Neil Gorsuch all attended Harvard Law School, Roberts as both an undergraduate and law student. The university has no current position for any of the justices.