My latest article in the magazine looks at Ketanji Brown Jackson’s record. One thing that should be a focus of attention at her Supreme Court hearings before the Senate Judiciary Committee, beginning March 21, is what she told Ted Cruz when she came before the committee last April. Cruz asked if she believed in a “living Constitution,” a well-known divide in constitutional law. Jackson responded by pleading her lack of experience with constitutional questions:
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 and has to have thought about the tools of interpretation. 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, say, in the Second Amendment . . . context in the Heller case. I just have not had any opportunity to do that. I have worked with those kinds of materials when I was in private practice. . . .
I believe that the Constitution is an enduring document. . . . It has, . . . the Supreme Court has said, a fixed meaning, that we’re to look to the original words in the Constitution and . . . as lower-court judges . . . interpret provisions the way in which the Supreme Court does, and they look at the text and look at the original meaning. And so if I ever had one of those cases, that is how I would approach the task.
You can watch that exchange here, starting at 2:57 of the video:
In a written clarification, she cautioned that, “As a sitting federal judge, I am bound by the methods of constitutional interpretation that the Supreme Court has adopted, and I have a duty not to opine on the Supreme Court’s chosen methodology or suggest that I would undertake to interpret the text of the Constitution in any manner other than as the Supreme Court has directed.” Thus, she gave herself wiggle room to take a different approach if she should be on the Supreme Court. Questioning of Jackson should pin her down on this:
- Does she still lack the experience with constitutional law to answer questions about the interpretation of the Constitution? She has not written any opinions in the intervening year to suggest otherwise.
- Would she, as a Supreme Court justice, look at history and the original meaning of the text and treat it as having a fixed meaning tied to the original words? Or did she promise to do that as a circuit judge only because she would be bound by a higher court?