The Ketanji Brown Jackson hearing proves that conservatives have won the battle of ideas about how judges approach and decide cases.
Throughout the Senate Judiciary Committee hearings on Ketanji Brown Jackson’s nomination to the Supreme Court, Judge Brown Jackson had multiple opportunities to describe how she approaches cases. Her responses show how mainstream conservative legal principles have become. Refusing label her approach as a judicial philosophy, Judge Brown Jackson repeatedly used the term “methodology” and said that she follows three steps in cases brought before her. This methodology echoes the approach to deciding cases conservative justices take. And Listening to Judge Brown Jackson, one could easily be confused as to who nominated her – was it Joe Biden or Donald Trump?
Judge Brown Jackson first starts from a position of neutrality by setting aside any views she may have on the matter. Second, she receives and digests inputs on the case. This includes a review of the briefs submitted by litigants and friend of the court briefs, review of the record and consideration of arguments presented at hearings. Finally, Judge Brown Jackson said that she will observe the constraints of judicial authority. This means initially determining whether the court has jurisdiction and then analyzing the merits of the case. When judging the merits, she looks to the text of the law. And proper fidelity to the text entails determining what the words mean as intended by people who wrote the law and assigning the original meaning to those words. Judge Brown Jackson also believes precedent and stare decisis are constraints on judicial authority.
Judge Brown Jackson said she does not believe in a living Constitution – a method of interpretation invoked by the Left used to “discover” new and unenumerated rights in the Constitution. She also disavowed using international law to help decide cases – particularly when interpreting the Constitution. And in this capacity, Judge Brown Jackson differs from her mentor, Justice Breyer.
What are conservatives to make of this? The big takeaway from the testimony shows that a high-profile nominee cannot be openly activist. Even when Democrats control the U.S. Senate and Judge Brown Jackson’s confirmation is a foregone conclusion, she still says that she uses methods of statutory and constitutional interpretation embraced by conservatives for much of forty years.
This doesn’t mean Ketanji Brown Jackson will become the next Antonin Scalia. Most likely, she will side with Justices Kagan and Sotomayor when deciding crucial issues that come before the Court. Today, when questioned by Senator Cornyn she refused to disavow the concept of substantive due process – a judicially created constitutional protection that has been used as a trojan horse for liberal judges to insert their policy preferences over those of politically accountable legislatures. But it’s telling that much of the language she used to describe her role as a judge or future justice could be taken from a speaker at a Federalist Society event.
In the harsh light of a high-profile and public nomination hearing, judicial nominees are on safe ground when they talk about the judicial principles described by Judge Brown Jackson for a simple reason – these principles are absolute and correct. Americans don’t want their judges or Supreme Court Justices making laws or inserting their policy preferences for those of the accountable political branches.
While its doubtful that Judge Brown Jackson will join the conservative majority in contentious cases that come before the Supreme Court, it is telling that she says her approach is much like the approach used by textualists and originalists and rejected by modern activist justices. How this dynamic plays out in the coming years remains to b
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