Last week, the Senate Judiciary Committee (the Committee) questioned and heard testimony from Judge Ketanji Brown Jackson of the D.C. Circuit whom President Joe Biden nominated to replace Justice Stephen Breyer on the Supreme Court. The Committee’s vote on Jackson will take place April 4th, and Majority Leader Chuck Schumer (D-NY) wants her confirmed before the Senate leaves for Easter recess on April 8th. Importantly, if confirmed, she will not replace Justice Breyer until the end of the Supreme Court’s term in late June or early July.
After covering the nominations of then-Judges Brett Kavanaugh and Amy Coney Barrett from an unfair and aggressive partisan posture, the media has spent the past month coronating Jackson. The Washington Post declared that Republicans treated Jackson worse than Democrats treated Kavanaugh, while the Associated Press tweeted that Republicans will not support Jackson because she “brings too much empathy to the job.” While engaging on the merits with either outlet is not worth anyone’s time, both outlets completely overlooked that what Jackson told the Committee does not accurately reflect her record.
Judge Jackson told the Committee:
- instead of a judicial philosophy, she has a three-step methodology that entails (1) overseeing the case from a neutral posture; (2) understanding the facts of the case, reading the party’s briefs and arguments, and holding a hearing; and (3) interpreting the law, applying the law to the facts, and writing an opinion.
- when she interprets the Constitution, she looks to the original public meaning, the history and practice at time of the ratification, and precedent. However, she refused to accept a label like “originalist” and refused to say whether her philosophy is like any current or previous justice. Last year, she told the Committee that she did not have a theory of constitutional interpretation, and in her nine months on the D.C. Circuit, she has not written a single constitutional law opinion.
- the Supreme Court accepted Justice Antonin Scalia’s theory of originalism as the correct way to interpret the Constitution, even though several decisions show that some justices on the Court strongly disagree with that position.
- when she interprets statutes, she looks to the plain meaning of the text to achieve the purpose Congress intended. But in two high-profile statutory interpretation cases, she was reversed almost entirely on textualist grounds.
- she did not have a strongly held view on court-packing, she hadn’t really thought about it, and it did not matter to her whether she was on a court of 9 or a court of 28.
While President Biden and Democrats on the Committee are thrilled about the prospect of a Justice Jackson, Jackson’s originalist-sounding views are exactly what Democrats have rejected in Republican-appointed Supreme Court nominees for decades. Either they do not believe that Jackson meant what she told the Committee, or they are confident Jackson’s record reflects a nominee who will not deviate from the positions of the other Democratic-appointed justices.
Judge Jackson’s general judicial philosophy
The first question of the hearings came from Senate Judiciary Chairman Dick Durbin (D-IL), and he asked Judge Jackson to explain her judicial philosophy. She said her philosophy is better understood as a methodology, and it has three steps: (1) clearing her mind and proceeding from a position of neutrality; (2) receiving and reading the party’s briefs to understand their arguments, holding a hearing, and evaluating the facts from various perspectives; and (3) interpreting the law and applying the law to the facts of the case while observing constraints on her judicial authority (see her constitutional approach and textualist approach below for more on this final point). (See Durbin at 48:30 for Jackson’s answer.) When Senators Chuck Grassley (R-IA) and Lindsey Graham (R-SC) later asked about her judicial philosophy, she again stated it’s a methodology. (See Grassley at 1:30:50 and Graham at 2:48:00.)
Jackson’s framing away from a philosophy to a methodology is intentional. What she is trying to convey with this is not entirely clear. Perhaps she is trying to underscore the importance of her experience as a district court judge to the way she goes about judging. As far as methodologies go, there is nothing wrong with it. But there is also nothing exceptional or eye-opening about it either. Everyone expects that federal judges proceed from a neutral posture, read the parties’ briefs seriously, hold a fair hearing, and apply the relevant law to the facts in an opinion. Maybe she emphasized this approach because she thinks other judges do not do these things and this is the right way to go about judging, or maybe she emphasized this approach because every judge approaches their cases in this manner and her approach is no different. We don’t know.
Judge Jackson’s constitutional approach
Judge Jackson framed the third step of her methodology as being constrained by what the words meant as intended by the people who wrote them, the original documents, the original public meaning of the Constitution, the history and practice at the time the Constitution was ratified, precedent, and not inputting her personal policy preferences into a case. (See Durbin at 48:30.) She told Senator Grassley that she does not believe in a “living Constitution” in the sense that she would be inputting her policy views into the Constitution, and added that the Supreme Court has made clear that the way to interpret the Constitution is to look at what it meant at the time of the founding. (See Grassley at 1:28:35.) Jackson also told Grassley that international law plays a very limited role in how she interprets the Constitution. (See Grassley at 1:34:00.) Importantly, she also said that the Constitution has a fixed meaning. (See Sasse at 7:52:00.)
Perhaps sensing that Judge Jackson was not being entirely forthcoming, Senator Grassley and Senator Ben Sasse (R-NE) asked if there was any current or previous justice who had a judicial philosophy that most resembles her own. She told Senator Grassley that she had not studied the philosophies of all the prior justices, but she came to her position as a judge that comes from practice. Moreover, she added that her methodology developed from her experience as being a trial judge. (See Grassley at 1:30:50.) Jackson essentially told Sasse the same thing, but added that she would not use a particular label to describe her approach (i.e., she is not an originalist). (See Sasse at 7:52:00.) Senator Sasse then asked if she could talk about the different philosophies of Justices Breyer, Elena Kagan, and Sonia Sotomayor (something he asked her to study in their personal meeting), but Jackson did not flesh out those differences; she said she hasn’t studied them, and the differences likely depend on the case. (See Sasse at 7:58:30.)
Judge Jackson’s stated constitutional approach most closely comports with originalism, or the theory that the Constitution should be interpreted based on what the words meant to the public at the time it was ratified. But she specifically disclaimed that she was an originalist when asked. Moreover, when asked if there were any current or previous justices she might align with, she did not answer. Today, there are four (maybe five) publicly-stated originalists on the Supreme Court in Justices Clarence Thomas, Neil Gorsuch, Samuel Alito, Barrett, and Kavanaugh. This does not mean that these justices always agree with one another. But Jackson’s refusal to answer which justice has a philosophy she aligns with after her originalist-sounding answers gives a hint that either she might not entirely believe what she told the Committee, or she did not want to publicly say she agreed with the philosophy of a Republican-appointed justice.
Her answers are most striking when considering what she told Senator Ted Cruz (R-TX) about a living Constitution less than a year ago when she was nominated to the D.C. Circuit. “I have not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do…I am aware that the Supreme Court, at least with respect to certain provisions of the Constitution that it already interpreted, has looked at history and is focused on the original meaning of the text…I just have not had any opportunity to do that.” In her stint on the D.C. Circuit, she did not write a single opinion where she needed to interpret the Constitution. How she went from not being able to reject a “living Constitution” less than a year ago and not having a theory of constitutional interpretation, to giving the originalist-sounding answers she provided last week is difficult to comprehend.
As FreedomWorks has previously described in detail, Judge Jackson’s most famous constitutional law case came when she was on the district court involving the House Judiciary Committee’s subpoena of former White House Counsel Don McGahn. The case raised serious separation of powers concerns because instead of using the constitutional tools available to it, the Legislative Branch hauled the Executive Branch into federal court to force McGahn to testify. While recognizing that federal courts for over 200 years have not been the venue where the political branches resolve these disputes, Judge Jackson held that the subpoena was enforceable anyway. She mischaracterized the case as a normal subpoena dispute that courts decide all the time, misconstrued Supreme Court precedent to hold that Congress subpoenaing the Executive Branch is no different than it subpoenaing private individuals, and relegated Congress to that of a private individual in seeking recourse in federal court against the Executive Branch. In other words, Jackson’s opinion in Committee on the Judiciary v. McGahn (D.D.C. 2019) is completely at odds with the originalist-sounding answers she gave the Committee.
Judge Jackson’s comments about the importance of the original public meaning and history when interpreting the Constitution are closely related with what then-Judges Gorsuch, Kavanaugh, and Barrett said. However, her record is markedly different from their records. Jackson’s most notable constitutional law case comes in the McGahn decision (see the above paragraph). In that decision, she completely missed the separation of powers problem. In direct contrast, Judges Gorsuch and Kavanaugh wrote opinions that underscored the importance of the separation of powers in constitutional interpretation. Judge Gorsuch reinvigorated the non-delegation doctrine and questioned the constitutionality of Chevron deference, while Judge Kavanaugh questioned courts making up causes of action Congress did not provide for and held the structure of the Consumer Financial Protection Bureau unconstitutional. Similarly, Judge Barrett applied founding- and reconstruction-era precedent to find the government’s action depriving a non-violent felon with no violent characteristics of owning a firearm for the rest of his life unconstitutional.
While some originalist law school professors say Judge Jackson’s comments should be celebrated, others take the view that it is evidence that originalism is an amorphous theory that can mean whatever anyone wants. To strengthen their argument, the critics point to what then-Solicitor General Kagan said in her Supreme Court confirmation hearing. “I think of the job of constitutional interpretation the courts carry on as a highly constrained one, as constrained by text, by history, by precedent, and the principles imbedded in that precedent…[t]he Constitution does not change…[b]ut it of course is applied to new situations, to new facts, to new circumstances all the time.” (See Kagan at 159.) She also said, “I think that judges are always constrained by the law…[w]here the text doesn’t speak clearly, they look to other sources of law. They look to original intent, they look to continuing history and traditions…” (See Kagan at 160.) When talking about how the Constitution sometimes lays down very specific rules or broad principles to be interpreted over time, Kagan said “in that sense, we are all originalists.” (See Kagan at 61-62.) If every Supreme Court nominee will give originalist-sounding answers to get Senators to confirm them, perhaps a better inquiry is a close examination of the nominee’s record to determine whether he or she practices what they preach.
Originalism as stare decisis (precedent)
Perhaps the strangest statement Judge Jackson made came in connection with her views on what counts as stare decisis (Latin for “to stand by things decided”). Normally, stare decisis is understood that the bottom-line decision a court reaches in a previous opinion should decide the same or a similar case brought before it. This promotes stability in the law and allows the public to plan their actions in accordance with it. Along with the above, Jackson added that her view of stare decisis was that the Supreme Court has accepted Justice Scalia’s originalist view: that the correct way to interpret the Constitution is by looking at history and trying to find its original public meaning. (See Sasse at 8:02:00.) In other words, Jackson said that the way Scalia and originalists interpret the Constitution is binding on the Supreme Court. While this is not a commonly-held view, she did embrace it last year when she was nominated to the D.C. Circuit.
Originalism as a stare decisis principle is not a position the Supreme Court has embraced. A couple of cases spell this out. In Washington v. Glucksberg (1997), the Court held that its test to find unenumerated rights asked (1) whether the right is objectively, deeply rooted in the Nation’s history and tradition, and (2) a careful description of the asserted fundamental liberty interest. But in Obergefell v. Hodges (2015), the Court said that while the Glucksberg approach “may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights…” The Court also attacked Glucksberg directly, opining that “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” In other words, the Court discarded the Glucksberg originalist analysis because it did not allow it to reach the result in Obergefell.
In District of Columbia v. Heller (2008), the Court held that the Second Amendment protected an individual right to keep and bear arms. Writing for the majority, Justice Scalia engaged in a deep historical analysis and found that an “inherent right of self-defense has been central to the Second Amendment right.” Two years later, the Court was asked in McDonald v. City of Chicago (2010) to incorporate the Second Amendment (apply it to state and local governments through the Fourteenth Amendment’s due process clause). While the Court incorporated the Second Amendment, the dissent took issue with the Court’s historical analysis in Heller. “The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history…[i]f history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently-published historical views?” Instead of being bound by the majority’s originalism analysis in Heller, the dissent in McDonald continued to attack it, and wondered if Heller should be reconsidered entirely. The dissent did not take Jackson’s view of originalism as a stare decisis principle.
Ironically, Judge Jackson said that Heller is an example of the Supreme Court adopting Justice Scalia’s originalist methodology for how it interprets the Constitution. But there’s more to that case. Heller was an issue of first impression before the Court, which means there was little to no precedent to analyze. There is very little disagreement that original sources should be used when interpreting a constitutional provision in the first instance, or when there’s very little precedent. For example, in NLRB v. Canning (2014) no one disagreed with the Court engaging in a thorough historical and textual analysis to discern the original meaning of the Recess Appointments Clause. In that way, Judge Jackson’s example of Heller is misleading because the real battle for originalists is how the original public meaning squares with the Court’s precedents, and when those precedents should be overturned because they are egregiously wrong.
Finally, Senator Dianne Feinstein (D-CA) asked about her favorite issue—”super-precedents.” This theory of precedent says that some of the Court’s older precedents that have been reaffirmed get a more important status that ostensibly the Court cannot (or would face a very high bar to) overturn. The most common “super-precedents” are Marbury v. Madison (1803) and Brown v. Board of Education (1954). Senators then add Roe v. Wade (1973) in the “super-precedent” basket to force nominees into a position where they have to answer whether they will apply a more rigorous stare decisis analysis to overturning or limiting Roe than they would if Marbury or Brown was being reconsidered. Feinstein asked Judge Jackson whether Roe has the status of a “super-precedent” and what other Supreme Court cases have that status. (See Feinstein at 2:57:00.) In response, Jackson did not take the “super-precedent” bait; she said that all Supreme Court cases have the effect of precedent and are binding, and that whenever the Court reconsiders a previous decision, it goes through the typical stare decisis factors. In other words, Jackson does not believe in a “super-precedent” theory of constitutional law.
Judge Jackson’s textualist approach
In keeping with the third step of her methodology of the law as a limitation on the power of judges, Judge Jackson said that she applies the plain meaning of a statute when faced with a question of statutory interpretation. (See Graham at 3:21:20.) Moreover, she said that the goal of statutory interpretation is to achieve the purpose the legislature intended, and usually the text of the statute is the sole indicator of what the legislature intended. If the text is not clear, she looks to the structure of a statute or the canons of statutory interpretation, and it is not the role of a judge to interpret the statute differently because of otherwise problematic consequences. (See Sasse at 8:01:00.) When asked about courts finding a cause of action in statutes that do not have one, Jackson said that it is the obligation of a judge not to create policy; and as a general matter, if Congress enacted a statute with no cause of action, courts cannot impose one. The judge needs to impose the law as written. (See Grassley at 1:37:00.)
The best example of Judge Jackson’s textualist approach came in Make The Road New York v. McAleenan (D.D.C. 2019) when she failed to apply the plain meaning of the statute. Under the federal law known as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIA) of 1996, some illegal immigrants can be subject to a fast-track, near-immediate ejection removal procedure that is known as expedited removal. In 2019, the Department of Homeland Security (DHS) published an announcement in the Federal Register expanding expedited removal to its full statutory limits so that it would reach all illegal immigrants who had been in the United States for less than two continuous years. The statute gives the Secretary of the Department of Homeland Security “sole and unreviewable discretion” to apply expedited removal. See 8 U.S.C. § 1225(b)(1)(A)(iii)(I). Disregarding the plain meaning of the statute that would have resulted in the case being dismissed, Judge Jackson subjected the Secretary’s rule to the Administrative Procedure Act, held the rule illegal, and enjoined (prohibited) the government from enforcing it.
On appeal, Judge Jackson was reversed by the D.C. Circuit by a 2-1 vote, but all three judges agreed that Jackson misapplied the statutory provision. The majority said, “[t]here could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment…sole and unreviewable discretion by its exceptional terms, heralds Congress’s judgment to commit the decision exclusively to agency discretion.” (See page 32.) “Congress’s addition of the phrase ‘and unreviewable discretion’ to ‘sole’ doubles down on the confinement of the judgment to one decisionmaker, and one decisionmaker alone. The natural meaning of the statutory text is that, unless the Secretary crosses the statute’s bonds…no second opinions are allowed.” (See page 33.) In dissent, Judge Neomi Rao held that under the Immigration and Nationality Act, “Congress withdrew judicial review over plaintiffs’ challenge to the Expansion Designation.” (See dissent at 7.) In other words, while the majority held that Judge Jackson was correct to exercise jurisdiction over the case, Judge Rao opined that the case should have been dismissed without reaching the merits.
During the height of the pandemic, the Centers for Disease Control (CDC) instituted a nationwide eviction moratorium after congressional authorization expired. The statutory provision the CDC relied on (and has relied on for a series of pandemic-era regulations) reads, “[t]he Surgeon General…is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases… from one State…into any other State…For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” See 42 U.S.C. § 264(a). Instead of reading the first sentence broadly giving the Surgeon General unlimited authority, the second sentence should be read as a limitation on the first to inform what types of regulations might be necessary.
The first legal challenge in the D.C. Circuit did not feature Judge Jackson, and the panel remarkably held that the eviction moratorium “fell within the plain text” of the statute. (See page 2.) When the plaintiffs appealed to the Supreme Court, the Court refused to grant an injunction prohibiting the CDC from enforcing the moratorium. While Justices Thomas, Alito, Barrett, and Gorsuch would have granted the injunction, Justice Kavanaugh said he agreed that the CDC has exceeded its statutory authority, but refused to grant an injunction because the moratorium would end in a few weeks. Importantly, he added that if this were tried again, it would need congressional approval.
Once the eviction moratorium expired, the CDC re-issued it. The district court refused to enjoin the moratorium, holding that it was bound by the “law of the case doctrine” that prohibited it from overturning the D.C. Circuit’s prior determination not to enjoin the moratorium. However, the court did say that the D.C. Circuit could depart from its prior holding if there was an intervening change in legal authority. When the plaintiffs appealed to the D.C. Circuit, Judge Jackson was on the panel. The court refused to enjoin the moratorium and Jackson had nothing to say. While Trump-appointed Judge Rao also did not write separately to attack the moratorium or issue a dissent, she has a longer record of textualist views than Jackson (see example above). In the one case on the D.C. Circuit that Judge Jackson could have written about an obviously non-textualist reading of a statute, she didn’t. The Supreme Court would later hold the eviction moratorium illegal, the CDC’s interpretation of the statute “unprecedented,” and a “wafer-thin reed on which to rest such sweeping power.” (See page 7.)
Like President Donald J. Trump’s Supreme Court nominees before the Committee, Judge Jackson gave very textualist-sounding answers about the importance of interpreting a statute based on its plain meaning. She talked about the importance of judges interpreting the text to achieve the purpose Congress intended. But unlike President Trump’s Supreme Court nominees, her record does not show textualist principles. In two cases where the plain meaning dictated an unfavorable but not absurd result, she reached the opposite result. In both cases, she would ultimately be reversed on somewhat obvious textual grounds.
Judge Jackson on court-packing
The Supreme Court has been set at nine justices since 1869. During the 2020 Democratic presidential primaries, several candidates endorsed the idea of court-packing, or adding seats to the Supreme Court so it reaches different legal conclusions. Joe Biden did not. Instead, in April of last year, he signed an executive order tasking a commission of legal experts to study the issue along with a host of others. In its final report, the Commission did not endorse court-packing, stating that “there is profound disagreement among Commissioners over whether adding Justices to the Supreme Court at this moment in time would be wise.” (See pages 83 through 84.) Despite this, a number of Democratic lawmakers in the House and Senate have sponsored the Judiciary Act of 2021 that would add four seats to the Supreme Court. The dream of court-packing is still alive and well amongst many in the Democratic Party.
After asking Judge Jackson to describe her judicial philosophy, Senator Durbin’s second question asked her about proposals to change the size of the Supreme Court. (See Durbin at 53:15.) But before asking the question, Durbin misstated then-Judge Barrett’s position when she was asked about it at her Supreme Court confirmation hearing. Barrett said, “I couldn’t opine on it” when talking about a constitutional issue that might be raised about court-packing; she did not give her policy position on court-packing. While she might have said the same thing had she been asked, she was never asked. After Durbin mischaracterized Barrett’s position, Jackson said that she agreed with Barrett (Durbin’s mischaracterization of Barrett), and judges should not be commenting on political issues.
Later in the hearing, Senator John Kennedy (R-LA) pressed Judge Jackson further on her position. Kennedy asked whether Jackson could agree that calls to pack the court only delegitimize it. (See Kennedy at 1:20.) Jackson reiterated that it was a policy determination for Congress, and it would not be appropriate for her to state her views because she feels very strongly about judges staying out of political debates. Then she invoked Durbin’s mischaracterization of Barrett’s position to say she agreed with Barrett. But when Kennedy pressed harder, Jackson said that she did “not have a strongly held” opinion, and she hadn’t “really thought about it.” (See Kennedy at 4:10.) Jackson also stressed that she had heard arguments on both sides and she understood it to be a political issue, which made her opinion not appropriate to share. Finally, when Kennedy asked whether it would matter to Jackson whether she be one of nine or one of twenty-eight, she said she would be “thrilled to be one of however many Congress thought was appropriate to put on the Court.” (See Kennedy at 6:40.)
While Jackson refused to answer questions about court-packing, Demand Justice, one of the leading left-wing groups behind her nomination, is on the front lines fighting for it every day. It has a four-step plan to “fix” the Supreme Court. The first step of the plan is to add four seats to the Supreme Court. This is needed to “undo the damage Republicans did by stealing multiple Supreme Court seats.” Demand Justice naturally omits that the Senate would need to abolish the filibuster to accomplish this goal because the Democrats do not have the 60 votes necessary to break an obvious filibuster that would block consideration of this legislation. So along with adding four new seats to the Supreme Court, the Senate filibuster would be gone, too.
Demand Justice is related to Judge Jackson in other ways. It led the push for almost a year to get Justice Breyer to retire so that President Biden could nominate a black woman to the Supreme Court. And when Demand Justice put forward a shortlist in the event a vacancy were to occur (a vacancy it ensured would arise), Jackson was on the list. But, when Senator Graham asked if she had ever had any interaction directly or indirectly with Demand Justice, Jackson said “no.” (See Graham at 2:44:45.)
Anti-originalist views of Democrats
One of the odd things about Judge Jackson’s nomination is Senate Democrats being thrilled to vote for a nominee who embraces sources like the original public meaning of the Constitution that they have despised for decades. For starters, then-Senator Biden was the Chairman of the Senate Judiciary Committee when President Ronald Reagan nominated Judge Robert Bork to the Supreme Court. While Bork’s nomination would be defeated, Biden said he voted against Bork specifically because of his originalist views. Moreover, Biden said in early February that he wanted a nominee who believed that “there are unenumerated rights in the Constitution, and all the amendments mean something, including the Ninth Amendment.” This remark was both anti-originalist and anti-Bork, who famously called the Ninth Amendment “an inkblot.”
Some Democrats on the Committee have said absolutely ridiculous and indefensible things about originalism. During Judge Barrett’s Supreme Court confirmation hearing, then ranking member Durbin tweeted, “Originalism is the MAGA of judicial philosophies. We cannot allow an 18th century understanding of the Constitution to dictate what happens in 21st century America.” In addition, Senator Sheldon Whitehouse (D-RI) tweeted, “originalism is a lousy doctrine, and…originalism is a phony doctrine — a doctrine of convenience, regularly ignored by its supposed adherents.” Senator Chris Coons (D-DE) said to Barrett directly, “I think the American people need to better understand what that originalist philosophy could really mean for their everyday lives. Because I think it means our entire modern understanding of certain constitutional commitments around liberty, privacy and equality under the law could in fact be rolled back to 19th or even 18th century understandings in a way unrecognizable to most Americans.” (See Coons at 2:44:23.) Senator Mazie Hirono (D-HI) voted against Barrett largely because of her originalist views.
During Judge Kavanaugh’s Supreme Court confirmation hearing, Senator Cory Booker (D-NJ) said, “I love that my colleagues keep going back to the Constitution but understand this: I laud our Founders, I think they were geniuses. But I understand that millions of Americans understand that they were also flawed people…We know our Founders and their values and their ideals but we also know that they were flawed and you can see that in the documents. Native Americans were referred to as savages, women weren’t referred to at all, African Americans were referred to as fractions of human beings. As one civil-rights activist used to say ‘constitutu, constitu, I can only say three-fifths of the word.’”
During Judge Gorsuch’s Supreme Court confirmation hearing, Senator Pat Leahy (D-VT) said, “originalism I believe remains outside the mainstream of moderate constitutional jurisprudence. It has been 25 years since an originalist has been nominated to the Supreme Court.” And in questioning Judge Gorsuch, Senator Amy Klobuchar (D-MN) asked him if the originalist view of the Constitution allows a woman to be president. Finally, in voting against Judge Alito to be on the Supreme Court, Senator Feinstein (D-CA) specifically cited the fact that Alito was an originalist and likely to vote with Justices Rehnquist, Scalia, and Thomas if he were confirmed.
As shown above, the president who nominated Judge Jackson, and eight of the Democrats on the Committee who will vote for Judge Jackson, do not support originalists on the Supreme Court. All eight voted against President Trump’s three originalist nominees to the Supreme Court. If they all feel so strongly about rejecting the original public meaning of the Constitution, why are they all so supportive of Judge Jackson who claimed it is an important source for her as a judge? Why didn’t they ask her more difficult questions on how she goes about interpreting the Constitution? Why did they blindly accept her view that the Supreme Court has accepted Justice Scalia’s originalist interpretation of the Constitution? None of it seems to make any sense unless they think she doesn’t believe the things she told them.
While Judge Jackson gave similarly-sounding answers at her confirmation hearing as President Trump’s Supreme Court nominees, their records are markedly different. Then- Judges Gorsuch, Kavanaugh, and Barrett had records as appellate judges that reflected their originalist and textualist views. In stark contrast, Jackson’s most important constitutional law case completely missed the separation of powers argument; and in her two most important statutory interpretation decisions, she disregarded the plain meaning of the statute only to be overturned on appeal on textualist grounds.
It is also difficult to understand how less than a year ago when Judge Jackson was nominated to the D.C. Circuit, she did not have a theory of constitutional interpretation and could not reject the theory of a “living Constitution.” But months later, when nominated for the Supreme Court, she gave a series of originalist-sounding answers about how she interprets the Constitution, even though she didn’t write a single constitutional law opinion on the D.C. Circuit. This complete reversal was never explained, and it’s likely because there isn’t a good answer.
Finally, the thoroughly anti-originalist views of President Biden and Democrats on the Committee who are excited about a Justice Jackson should raise serious questions. These Democrats led the fight against President Trump’s Supreme Court nominees at least in major part because of their originalist views. Although Democrats’ support of Jackson on its own is not enough to raise doubts over the views she shared with the Committee, their support in connection with Jackson’s record and past statements certainly is.