In the recent confirmation hearings, some Republican Senators made every attempt to discredit Supreme Court nominee Ketanji Brown Jackson. For four days, Judge Jackson sat through bizarre questions about critical race theory, disingenuous remarks about her record on child pornography, and even a request that she define ‘woman.’
One criticism stood out though — the claim that Judge Jackson does not have the right judicial philosophy.
This particular criticism is dangerous because it is cloaked in seemingly apolitical legal jargon. Compared to the other accusations against Judge Jackson, this one was a less obvious attempt to insinuate that she is seeking to advance some hidden liberal agenda. While many may quickly see the absurdity in Senator Marsha Blackburn’s insistence that Judge Jackson define ‘woman,’ an inquiry into the nominee’s judicial philosophy may seem to be a genuine and important line of questioning. In Judge Jackson’s confirmation hearings, however, this inquiry involved misrepresenting her position and neglecting the room for nuance in judicial interpretation.
A judicial philosophy is the way a judge understands and interprets the law. One favorite, especially among Republicans, is originalism, the position that the Constitution should be interpreted based on how it was understood at the time it was adopted. Closely related to originalism is textualism, which espouses strict adherence to the plain text of a statute. Both of these theories supposedly aim to limit judicial discretion and encourage neutrality in interpreting the Constitution. On the other hand, the idea that we have a ‘living Constitution,’ often associated with liberal Justices, is the belief that the Constitution is an evolving document that holds a dynamic meaning and can adapt to new circumstances.
Many Republicans, including Nebraska Senator Ben Sasse, were uncomfortable with Judge Jackson’s responses to questions about her judicial philosophy. They were especially critical of her refusal to fully endorse originalism, a philosophy that they view as essential for the role of Supreme Court Justice.
This criticism was largely unfounded: Despite not claiming originalism as her ‘judicial philosophy,’ Judge Jackson demonstrated that she sees value in originalism, stating that the “Constitution is fixed in its meaning” and that “it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” In fact, she even explicitly disavowed living constitutionalism, seeming to align more closely with conservatives’ preferred philosophy.
Granted, there was a bit of flip-flopping. At times, Judge Jackson said she didn’t have a judicial philosophy, but rather a judicial methodology, and expressed some reluctance to pigeonhole herself into an “overarching theory of the law.” At other times, she came close to endorsing originalism. This led to criticism that Judge Jackson was not clear enough on how she would approach cases brought before the Supreme Court.
While Judge Jackson could have been clearer at times, these vague criticisms about her judicial philosophy should not be grounds for rejecting an extremely qualified nominee because it is not obvious that Justices actually need an easily-labeled, one-size-fits-all judicial philosophy. After the hearings, Rhode Island Senator Sheldon Whitehouse said he is not bothered by Judge Jackson’s lack of a clear judicial philosophy, stating that a judicial philosophy “can be a screen for a predisposition that judges, frankly, should not have.” Indeed, Justice Neil Gorsuch has distanced himself from the term, stating that he is not a “philosopher king.” He also echoed the words of the late Justice Byron White who, in describing his own judicial philosophy, said: “I decide cases.” The fact that Judge Jackson was somewhat noncommittal in espousing a judicial philosophy is not so concerning or unique.
Even if we should hold Justices to a stricter standard in outlining their conceptual framework for deciding cases, there is nothing intrinsically optimal about originalism as a judicial philosophy. An obvious problem with originalism is that it is difficult to ascertain the original meaning of vague words in the Constitution when applied to cases the founders could not have anticipated. Originalism arguably generates more subjective rulings as Justices base their decisions on unverifiable assertions about the original meaning of statements in the Constitution. Indeed, Judge Richard Posner has argued that because originalism is so reliant on information that is often impossible to obtain, “there has never been a time when the courts of the United States behaved consistently in accordance with the ideal” described by originalists. Instead, Justices reach their decisions on different grounds and dress up their justifications in assertions about the original meaning of the Constitution.
Another problem with originalism is that it prevents the Constitution from adapting to changing circumstances. One often referenced case in critiques of originalism is “Brown v. Board of Education” (1954). In 1896, the Supreme Court’s decision in “Plessy v. Ferguson” held that racial segregation did not violate the Constitution so long as the facilities for each race were “separate but equal.” In “Brown v. Board of Education,” the Supreme Court overturned “Plessy v. Ferguson,” establishing that racial segregation in public schools is unconstitutional. Some critics have argued that, if the Supreme Court had actually acted in accordance with the originalist ideal in 1954, it likely would have maintained the ruling in “Plessy v. Ferguson” given that, from the perspective of the ratifiers, the notion of “separate but equal” was consistent with the Equal Protection Clause of the 14th Amendment. They very well could have believed that it is theoretically possible for educational institutions to be separate but equal in quality. Only in light of more recent psychological evidence gathered in the mid-20th century and presented in “Brown v. Board of Education” did it become clear that the notion of “separate but equal” is an oxymoron, since the very separateness of schools fostered a sense of inferiority among African-American children. In a failed pursuit of objective and neutral rulings, strict adherence to originalism risks rendering the Supreme Court ill-equipped to reach reasonable decisions in evolving contexts.
Many Senators were displeased with Judge Jackson’s refusal to box herself into a clearly defined judicial philosophy. But this may be the price to pay for a nuanced approach to constitutional interpretation. The repeated criticisms of Judge Jackson’s judicial philosophy miss the mark — either in twisting her words and ignoring her commitment to the Constitution, or in mistakenly treating originalism as the be-all and end-all of the Supreme Court.
