Ketanji Brown Jackson’s hearing showed how Scalia won the argument over the Constitution.
Ketanji Brown Jackson’s hearing showed how Scalia won the argument over the Constitution.
A ntonin Scalia may not have lived to reach the promised land, but he won the argument. That is the clear takeaway from the first round of questioning of Judge Ketanji Brown Jackson in her Supreme Court confirmation hearing Tuesday before the Senate Judiciary Committee.
Scalia did not invent constitutional originalism. Edwin Meese and Robert Bork both played important roles in advancing the concept in public, and numerous other scholars worked the vineyards of academia and the judiciary to make the idea intellectually respectable and rigorous. Others such as Clarence Thomas and Amy Coney Barrett have carried the flame of its arguments forward on the Supreme Court since Scalia’s death, sometimes (in the case of Thomas) with more stringency than Scalia himself. But Scalia was its most prominent, insistent, and eloquent exponent from the mid 1980s until his death in 2016. He was originalism’s prophet. Nobody was more identified with the argument than Scalia, who advanced it relentlessly in constitutional law and equally insistently under the label of textualism in approaching statutory law. “We’re all textualists now,” quipped Justice Elena Kagan in 2015.
Scalia’s argument was exceptionally American, and grounded in the legitimacy of law in a democracy. The United States of America was the first country in the history of the world to have a written, national constitution ratified by its people and binding on the government. We were the first nation to have a rulebook. It is at the core of what makes us an exceptional nation. George Washington himself warned, in his Farewell Address:
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. . . . Towards the preservation of your government . . . it is requisite . . . that you resist with care the spirit of innovation upon its principles.
Alexander Hamilton wrote in Federalist No. 78 that an independent judiciary’s purpose was to enforce “inflexible and uniform adherence to the rights of the Constitution” because “until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
Adherence to what was meant and understood when the Constitution was written was a core argument made repeatedly by Abraham Lincoln, who argued, in his pivotal 1860 Cooper Union address:
What was the understanding those fathers had of the question mentioned? What is the frame of government under which we live? The answer must be: “The Constitution of the United States.” That Constitution consists of the original, framed in 1787, (and under which the present government first went into operation,) and twelve subsequently framed amendments, the first ten of which were framed in 1789.
Who were our fathers that framed the Constitution? I suppose the “thirty-nine” who signed the original instrument may be fairly called our fathers who framed that part of the present Government. It is almost exactly true to say they framed it, and it is altogether true to say they fairly represented the opinion and sentiment of the whole nation at that time.
Originalism, in practice if not in name, was the predominant framework for interpreting the Constitution until Woodrow Wilson and the progressives advanced the idea of a “living Constitution.” The concept of interpreting the Constitution as having a fixed, enduring meaning anchored to the text was pervasive between 1789 and the accession of Wilson to office in 1913.
Wilson’s “living Constitution” has been the dogma of Democrats for a century since. But what do they have to say for it in public today, in a public hearing in an election year? Jackson would seem to be the best test case. She has been a regular attendee at conferences of the American Constitution Society and other gatherings of the foes of originalism. Nobody doubts that the Democratic Party and the progressive movement have closed ranks behind Judge Jackson. Left-wing groups such as Demand Justice have poured effort and resources into her confirmation. The people who object the loudest to originalism are all foursquare behind Jackson’s nomination. Nobody did more to organize political resistance to putting originalists on the Supreme Court during Scalia’s lifetime than Joe Biden, and Jackson is his first and possibly only choice for the Court. You would expect her to carry his rebuttal onto the public American stage.
And yet, when senators ask Judge Jackson in a nationally televised hearing to explain how judges should read the Constitution, in a hearing for a job to which she can be confirmed entirely with Democratic votes, she sounds an awful lot like Scalia and the originalists.
Jackson has resisted the “originalist” label. But over and over, in response to Republican questioning, she has sounded exactly like an originalist. “I’m looking at original documents,” she testified. “I am focusing on the original public meaning because I am constrained to interpret the text. Sometimes that’s enough to resolve the issue.” “I do not believe that there is such a thing as a living constitution” that changes over time, she added. Instead, she would be “looking at the text at the time of the Founding” as a constraint on judicial innovation. She would focus on “what that meant to those who drafted it.”
She reiterated what she said in her D.C. Circuit confirmation hearing in 2021: that the meaning of the document is fixed and enduring. She added that even applying it to situations created by new technologies involved asking what was originally understood, and seeking analogies to that in today’s technologies.
Asked by Senator Mike Lee about the Ninth Amendment’s reference to unenumerated individual rights, Jackson did not take the opportunity to advance Biden’s longstanding advocacy — advanced even in his statement introducing her as his nominee — that the Court has a broad license to create new, unenumerated rights. She did not identify any example of a right recognized under the Ninth Amendment. Instead, she talked about “the original public meaning at the time” in light of historical “practices” at the time in interpreting the Ninth Amendment.
Asked how to identify fundamental rights under the rubric of “substantive due process,” Jackson cited the Washington v. Glucksberg standard of rights “deeply rooted in the nation’s history and tradition” — an answer Edmund Burke would approve.
Jackson was a law clerk for Stephen Breyer, and Democrats could and would certainly have defended her if she wrapped herself in the cloak of Breyer and pledged to advance his philosophy of judging. But she didn’t. Asked by Senator Chuck Grassley about Breyer’s habit of citing international law as a guide to what rights should be recognized in American constitutional law, she noted, “with respect” to her mentor, that she rejected that approach. Asked multiple times to name a justice she would imitate or whose philosophy hers would resemble, she refused to name one — conspicuously, declining to name Breyer.
Senator Ben Sasse tried to tease out a discussion of the “road show” of Scalia and Breyer (who wrote a book, Active Liberty, on his own theory) arguing over how to read the Constitution. Jackson effectively conceded that Scalia had, in practice, won the argument for how the Court would read the Constitution going forward.
Citing the Supreme Court’s decidedly originalist approach in the landmark Second Amendment Heller case, with a majority opinion written by Scalia, Jackson acknowledged that “the Supreme Court has established that the right to keep and bear arms is a fundamental right,” but she went further, discussing the original-public-meaning analysis of the dissents and concluding, “that is now the way in which constitutional interpretation is done.”
Even when asked about stare decisis, the doctrine of adhering to prior Supreme Court precedents, multiple Democratic senators offered Jackson the opportunity to endorse the theory of “super-precedents” such as Roe v. Wade that are given special immunity from being reconsidered. Even as recently as Justice Barrett’s hearings, Republican nominees were hectored to endorse this sort of thing. Jackson declined. Every query from senators of either party about precedents elicited the same response about the general test for evaluating whether to adhere to precedents. She even said that she had never heard a judge refer to a “super-precedent.”
“My methodology,” she called this approach so many times that if you took a drink each time, you’d have been under the table by sundown. Even progressive senators did not quibble. Mazie Hirono of Hawaii listened through this and told Jackson that she would endorse this approach. Sasse, after listening to Jackson’s testimony, closed by thanking her for illustrating how far Bork and Scalia had moved the legal field.
Is Jackson sincere? There are reasons in her record to be dubious, and if she is confirmed, we can’t and won’t truly know the answer until she is on the Court. But battles of ideas can never be won by those who refuse to fight them in a public forum. The marketplace of ideas is unforgiving to those who won’t sell their own wares. Even when offered the biggest possible public stage to discuss the proper interpretation of the Constitution, neither Judge Ketanji Brown Jackson nor her Democratic supporters could do better than to agree with Justice Scalia.