How Will Biden’s Supreme Court Pick Affect Housing?

President Biden on Feb. 25 nominated Judge Ketanji Brown Jackson to assume Supreme Court Justice Stephen Breyer’s seat upon his retirement in June and NAHB has been assessing what this pick could mean for housing.

NAHB is no stranger to the U.S. Supreme Court, having won three cases at the court over the years. Every year, NAHB submits amicus or “friend of the court” briefs on a variety of cases involving issues that impact NAHB members and their business activities. The justices that make up the the nation’s highest court are therefore closely studied by NAHB.

While it is difficult to know how a judge will rule once they sit on the Supreme Court, their rulings in prior cases provide information that helps read the tea leaves.

What the Record Says

After eight years as a judge with the U.S. District Court for the District of Columbia, Judge Jackson was appointed last year to the U.S. Court of Appeals for the District of Columbia Circuit, known also as the D.C. Circuit. The D.C. Circuit is often referred to as the second highest court in the United States because many of its cases involve the federal government, especially federal regulations.

As a heavily regulated industry, NAHB members are very familiar with federal rules. Over her years at the D.C. District Court, Jackson has had occasion to consider a number of federal regulatory cases. For example, in 2018, Jackson adjudicated a case involving a longtime NAHB member and land developer. At issue in this case was whether the U.S. Fish and Wildlife Service (FWS) correctly categorized land surrounding a stock pond as “unoccupied critical habitat” for an endangered species that only lives in water.

Jackson ruled in favor of the developer on this issue, holding that FWS did not adequately support its critical habitat determination.

In other cases, Jackson has deferred a federal agency’s regulatory action. For example, in earlier litigation involving the same developer, she upheld other elements of FWS’ determination concerning the developer’s property.

In another land development case, Jackson ruled for the government in a challenge by an environmental group. In that case she held that the U.S. Army Corps of Engineers did not have to conduct an environmental analysis of an entire project on private property when the federal government only had authority over a small part of the project. Though she ruled for the government, it was not a “pro-environment” decision.

As an appellate court judge, Jackson has authored one opinion so far, involving an agency interpretation of a statutory requirement for collective bargaining. In that case, Jackson overruled the agency’s interpretation, which would have limited opportunities for collective bargaining.

A review of Jackson’s opinions reveals someone who is well-versed in adjudicating federal agency actions and who is likely to understand the complex regulatory frameworks NAHB members face.

NAHB will closely monitor developments as Jackson’s nomination moves forward.