Ketanji Brown Jackson . . . Closet Originalist?

By Kevin D. Williamson

Sunday, March 27, 2022

 

Political life — like the rest of life — would be a lot simpler if people would just tell the truth.

 

If I thought for a minute that Ketanji Brown Jackson meant what she said in her confirmation hearings — in which she described the judge’s relationship to the law in approximately the same way Antonin Scalia would have — then I’d be perfectly happy to see her on the Supreme Court. If I believed for one minute that she would subordinate her own political preferences to what the law actually says, then I wouldn’t care if she’d been on the board of Planned Parenthood or Mike Bloomberg’s dopey anti-gun group, because — here’s the critical thing — it wouldn’t matter. Not to her performance as a judge, anyway. While there will always be good-faith disagreements, a Marxist who is a committed textualist (if we can imagine such a thing) and a right-winger who is a committed textualist should, in theory, mostly come to the same or similar conclusions.

 

As Randy Barnett observes in the Wall Street Journal, the intellectual triumph of originalism is now so complete that even left-leaning activists such as Judge Jackson feel compelled to pretend to be originalists. “I believe that the Constitution is fixed in its meaning,” Jackson assured senators at her hearings, before adding that “the original public meaning of the words” is “a limitation on my authority to import my own policy.”

 

(I am very grateful to have Professor Barnett’s commentary but, in a sane world, he would be on the Supreme Court rather than writing about it.)

 

Conservatives have largely won the originalism argument, but winning the argument is only the beginning when it comes to effecting real long-term change.

 

Jackson offered some fine words, but they were words that belie her performance on the bench, where she has shown herself willing to ignore the law entirely to do favors for important Democratic political constituencies, such as public-sector unions. In that particular instance, the D.C. circuit court was there to reverse the ruling and remind Judge Jackson that she had overstepped her authority; once she is on the Supreme Court, there will be no appealing her decisions.

 

It is not as though we haven’t been here before. Elena Kagan positively lied her way onto the bench, making the conventional gestures toward judicial restraint and then throwing that off the second she had secured her lifetime appointment to the highest court in the land. In her confirmation hearing, she declared: “There is no federal constitutional right to same-sex marriage.” Five minutes later, she was presiding over a same-sex marriage, having used her place on the Supreme Court to magic into existence the right that she’d previously affirmed did not exist, pulling it right out of her penumbra. I will remind you that the question in play there was not whether same-sex couples should be allowed to marry but whether the Constitution of the United States, ratified in 1788, mandates that it be so, in which case we must assume that the right to same-sex marriage had been lurking there, undetected by generations of legal scholars and jurists — if indeed the Constitution is “fixed in its meaning” as Judge Jackson says — for 227 years.

 

Everybody says the Supreme Court has to follow the law as it actually is written. The difference is, the so-called conservatives on the Court (“conservative” is a misnomer) actually believe it and act on that belief. Progressives were sometimes surprised to find Justice Scalia siding with a left-wing group in a free-speech case, as he famously did in a series of decisions concerning flag-burning. Nobody who was paying attention should have been surprised by that, of course: The First Amendment says what it says, and Justice Scalia was not the sort of judge who pretended that it said something else even though he personally loathed the flag-burners and thought them both immoral and irresponsible. Chief Justice John Roberts will surprise you from time to time, often to the dismay of conservatives. Justice Clarence Thomas surprised some progressive observers by ruling in favor of Playboy Entertainment Group’s First Amendment challenge to the Communications Decency Act. Again, the surprise was unwarranted, and Justice Thomas’s concurring opinion was exactly what you’d expect, affirming that “the ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.”

 

Sonia Sotomayor, in contrast, will never, ever, ever surprise you in that way: She will always rule however progressive activists and Democratic politicians want her to rule. She is an activist, meaning a judge who does not reason toward a conclusion but instead reasons backward away from the conclusion, securing the political outcome and then backfilling in the legal arguments, however flimsy or preposterous, as necessary. Justice Sotomayor will always and everywhere deliver the political goods, the law be damned.

 

The Republicans of course beclowned themselves in the Jackson-confirmation spectacle, because that is what Republicans do now. Imagine if one of them had told the plain truth: “What we want is Supreme Court justices who follow the text in the manner of Justice Scalia and Justice Thomas, not justices who invent implausible crap in order to come to the decision preferred by the party with which they sympathize, in the manner of Justice Kagan and Justice Sotomayor. With respect, we don’t think you are that, both because of your record on the bench and, frankly, because of the fact that if you were that, then Joe Biden would never have nominated you in the first place. So, most of us are going to vote against your confirmation for that reason. That doesn’t mean we think you are stupid or that your résumé isn’t impressive, which it is. But we think that the word ‘qualified’ in this case entails more than having gone to Harvard Law — it also means understanding some fundamental things, like the fact that we write laws down for a reason, and acting in accordance with those understandings. Now, if you want to try to convince us that we are wrong about you, we are all ears. But we’re probably not wrong.”

 

Now, maybe conservatives are wrong. We have from time to time found ourselves bitterly disappointed by Republican nominees, and maybe progressives will find themselves disappointed — and surprised — this time by Ketanji Brown Jackson. Maybe it’s the Left’s turn to be let down.

 

But I wouldn’t bet on it. “Fixed meaning” and all that stuff? I think progressives can be confident that she didn’t mean what she said.