Apparently we’re all originalists now. “I believe the Constitution is set in its meaning,” Justice Ketanji Brown Jackson told the Senate during her Supreme Court confirmation hearing this week. “I think it’s appropriate to look at the original intent, the original public meaning of the words.” She called it “a limitation on my ability to express my own political views.”
Somewhere Judge Antonin Scalia has to sing, as he famously did before rising. The great Scalia, who prioritized originalism before his death in 2016, might frown at the word “intention” since his legal philosophy was to examine the simple meaning of words, not to guess what James Madison really meant thought.
But Judge Jackson’s comment is a sign of Scalia’s influence. He once joked that originalism is seen as a “strange affliction that grips some people — ‘When did you first start eating human flesh?'” Now even Judge Jackson, whom President Biden expects to see as a reliable liberal, wants voice is to be seen a believer.
That doesn’t mean Mr. Biden will regret that nomination. “We’re all textualists now,” Judge Elena Kagan said in 2015, which hasn’t stopped her from flying with the court’s left wing. Originalism doesn’t mean that even conservative judges always agree. Other factors come into play, such as when an elapsing precedent needs to be overridden. A judge who starts with the text can always end with something else.
Up to this point, it is of no merit that Judge Jackson insists that she has no philosophy of law, merely a three-step “methodology”: She says she clears her head of personal views, evaluates all the facts and arguments, and then applies the law. That’s a good answer for a trial judge candidate, but not for a judge. If originalism is just one tool in Judge Jackson’s toolbox, maybe she has a circular saw in it too.
In other hearing news, Judge Jackson appropriately said that she plans to withdraw from the impending fall of Harvard’s race preference policy since she sits on the college’s board of directors. But she refused to comment on progressive calls to pack the court. Would she be happy to serve as one of 28 judges? “If that is the decision of Congress, yes,” she replied. “Congress makes policy decisions like that.”
We hope that if she is confirmed, she will change her mind about the court’s institutional interests. Precisely because it is a political decision, the occupation of the court is not a judicial case that the judges do not have to anticipate. Justices Stephen Breyer and Ruth Bader Ginsburg both publicly opposed the idea, and it’s healthy that that message is being sent by at least one Democratic candidate.
Republican senators attempted to portray Judge Jackson as soft-spoken about crime, particularly on sentences for child pornography offenders. The effort was unconvincing, although the claim that Republicans are tougher on the judge than Democrats are on Brett Kavanaugh is ludicrous. Democrats requested that Judge Kavanaugh withdraw his nomination based on unverified allegations that he was a sexual molester and an alcoholic.
Justice Jackson is likely to be confirmed as the 116th Supreme Court Justice. While that would not change the 6-3 majority in court today, the game is long and two of the Conservatives are in their 70s. It doesn’t take much imagination to see a Justice Jackson writing for a Liberal court within a decade, certainly two.
That’s a throwback to conservative rule of law, but it’s the reality of a Democrat-led Senate. The rampant nature of President Trump’s voter fraud cost the GOP two seats in the Georgia Senate, and the price of that defeat continues to mount.
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https://www.wsj.com/articles/ketanji-brown-jackson-and-antonin-scalia-supreme-court-senate-confimation-hearings-originalism-11648159368 Ketanji Brown Jackson and Antonin Scalia