March 20, 2022
Tomorrow, the Senate will begin confirmation hearings for Judge Ketanji Brown Jackson, nominated by President Joe Biden on February 25, 2022, to take a seat on the Supreme Court of the United States. Judge Jackson is currently a federal judge on the United States Court of Appeals for the District of Columbia Circuit. This small circuit is prominent and prestigious because its location in Washington, D.C., means that it decides cases concerning the U.S. government. It is often seen as a stepping stone to the Supreme Court. Three current members of the court—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Brett Kavanaugh—served previously asjudges on the D.C. Circuit.
Judge Jackson has a wide range of experience, having both worked in private practice at corporate firms and served as a public defender, during which time she defended detainees at Guantanamo Bay. After earning her degrees from Harvard University and Harvard Law School, where she was a supervising editor on the prestigious Harvard Law Review, she served as a law clerk for three judges, including Justice Stephen Breyer of the Supreme Court, whose seat she has been nominated to fill.
Today, reporters are focusing on how she might decide on cases relating to hot-button issues like abortion and gun rights. But what is at stake with our current Supreme Court is far broader than the question of how a justice will vote on any one issue: it is whether the federal government can protect the rights of citizens from state laws taking away those rights.
This question comes from the 1940s. In the wake of World War II, the gap between America’s stated democratic principles and the abusive treatment of racial minorities and women, especially in the southern states, was so glaring that pressure built to reinforce the idea that our laws should apply to everyone equally. Media-grabbing stories, like that of the sheriff who was acquitted by an all-white jury after putting out the eyes of Black veteran Issac Woodard, looked far more like Nazi Germany than Americans liked.
But the laws necessary to protect Black and Brown Americans, including returning veterans, could not pass Congress because of the resistance of segregationist Democrats. So, under the guidance of Chief Justice Earl Warren, the former Republican governor of California, the Supreme Court began to protect Black Americans from abuse by using the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states.
The Fourteenth Amendment was ratified in 1868 as former Confederates in charge of state legislatures passed laws relegating formerly enslaved Americans to a state of second-class citizenship. The amendment addressed that legal establishment of racial hierarchies by stating, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment gave Congress the power to enforce the amendment “by appropriate legislation.”
In the 1950s, the Supreme Court based civil rights decisions on the Fourteenth Amendment, and it continued that trajectory in the 1960s and 1970s. The 1954 Brown v. Board of Education decision outlawing segregation in public schools, the 1965 Griswold v. Connecticut decision protecting the right of married couples to contraception, the 1967 Loving v. Virginia decision permitting interracial marriage, and the 1973 Roe v. Wade decision protecting a woman’s right to abortion without excessive government regulation all come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.
But opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. These opponents began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level.
Those who embraced this literal version of the Constitution called themselves “originalists” or “textualists,” and their intellectual representative was Justice Antonin Scalia, whom President Ronald Reagan appointed to the Supreme Court in 1986. The following year, six Republicans joined Democrats to reject extremist Robert Bork, who had called for the rollback of the Supreme Court’s civil rights decisions.
At the time, Senator Ted Kennedy (D-MA) warned that “Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”
Kennedy’s words then seemed outlandish, but now, thanks to the three Supreme Court appointments by former president Donald Trump, six of the nine members of the court are originalists. They have indicated their willingness to permit state legislatures to act as they wish, overturning constitutional rights like abortion, outlawing “divisive” instruction in our classrooms, and suppressing the vote of minority voters.
Stephen Breyer, under whom Jackson clerked, offered a new intellectual counterpoint to originalism that sought to move beyond the political lines of the post-Reagan era. He explained that we should approach constitutional questions by starting at the beginning: what did the Framers intend for the Constitution to do? Their central goal was not simply to protect liberties like free speech or gun ownership, he argued; their goal was to promote democracy. All court decisions, he said, should take into consideration what conclusion would best promote democracy.
The conviction that the point of the Constitution was to promote democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy.
It is notable that in her decisions, Judge Jackson has argued for this approach, repeatedly focusing on democracy and the rules that preserve it. In her 118–page decision in Committee on the Judiciary v. McGahn (2019) concerning whether Congress could compel members of the executive branch to testify, she famously wrote: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
Her conclusion began: “The United States of America has a government of laws and not of men.”
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Notes:
https://www.lawfareblog.com/ketanji-brown-jackson-guantanamo-and-role-defense-attorneys
https://www.politico.com/story/2018/08/21/brett-kavanaugh-roe-v-wade-susan-collins-790632
https://www.nytimes.com/2022/03/20/us/ketanji-brown-jackson-republicans.html
https://www.democracydocket.com/news/ketanji-brown-jackson-scotus-nominee-on-democracy/
Originalists pretend they are not interpreting texts but that they can divine the Founders' intent. They use the dictionary as their ouija board.
Originalism is a political ploy to perpetuate the Founders' unconscionable political expediencies, at the cost of their progressive aspirations. In other fields of textual analysis, the notion of 'author's intent' has long been dismissed as inadequate to the task of interpreting of texts.
Textualism pretends that dictionaries fix the meaning of words for all time. In fact, dictionaries trace the trajectories of signification over social space.
At Nuremberg, there was a focus on prosecuting judges who had perverted German law to appease/serve the Nazi regime. The point was to spotlight the importance of an independent judiciary.
Any justice, or judge, in whose appointment Leonard Leo aka The Federalist Society has had a hand is suspect - not by serving a conservative construction of the Constitution, which is legitimate, but in perverting the law itself, particularly as regards civil rights and the separation of church and state.
I have been an attorney since 1977 and was a District Judge for 20 years. I read your column most every evening and am amazed at how much I have learned and how much of what I know has been reaffirmed. Thank you HCR.