Jurisprudence

Ketanji Brown Jackson’s Shrewd Tactic to Win Conservative Praise

We are all originalists now.

Ketanji Brown Jackson gestures with her left hand as she speaks in front of a mic
Supreme Court nominee Ketanji Brown Jackson testifies before the Senate Judiciary Committee on Tuesday. Chip Somodevilla/Getty Images

Ketanji Brown Jackson is expected to be a liberal justice. But time and again, during her testimony before the Senate on Tuesday, Jackson endorsed conservative theories like originalism and textualism, rejecting the “living Constitution” in favor of history and tradition. Her embrace of the conservative legal movement’s prized judicial philosophies delighted many commentators on the right, who cheered Tuesday’s “thoroughgoing rout for progressive theories of law.”

These commentators are correct that Jackson’s rhetoric signals the triumph of originalism and textualism, which are now firmly established as the default mode of judging. But her rhetoric does not mean that she is further to the right than Democrats assumed, let alone a secret reactionary. The truth is that left-leaning jurists have long deployed originalism and textualism as useful tools of interpretation, and Jackson is canny enough to emphasize them before an evenly divided Senate. Democratic senators may still rail against these methodologies, but progressive judges have figured out how to use them to their advantage.

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A primer: Originalism and textualism are two related theories meant to restrain judicial interpretation of the law. Originalism requires judges to enforce the “original public meaning” of a constitutional provision—that is, how it was understood at the time of ratification. Textualism requires judges to apply the actual words of a statute rather than, say, legislative history. Conservative lawyers promoted these theories partly in response to the Supreme Court’s liberal rulings under Chief Justice Earl Warren. By the 1980s, a new generation of Republican-appointed judges like Antonin Scalia insisted that originalism and textualism were the only acceptable modes of interpretation. The Federalist Society incorporated them as founding principles, and today, any conservative lawyer with judicial ambitions must espouse them.

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It was a bit surprising, then, when Jackson placed originalism and textualism at the heart of her judicial philosophy on Tuesday. She told Democratic Sen. Dick Durbin that, when interpreting the Constitution, “I am focusing on original public meaning because I’m constrained to interpret the text.” This “adherence to the text,” she explained, “is a constraint on my authority.”

A few minutes later, Jackson reiterated this view to Republican Sen. Chuck Grassley, disavowing any belief in a “living Constitution” that evolves with the times. “I do not believe that there is a living Constitution,” she said, “in the sense that it’s changing and it’s infused with my own policy perspective or the policy perspective of the day. Instead, the Supreme Court has made clear that when you’re interpreting the Constitution you’re looking at the text at the time of the founding.”

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In a later colloquy with Republican Sen. Mike Lee, Jackson hit this point once more. “The Supreme Court now very clearly has determined that, in order to interpret provisions of the Constitution, we look to the time of the founding and we ascertain based on what the original public meaning of the words of the Constitution were at the time.” When recognizing a fundamental right not enumerated in the Constitution, she elaborated, a judge must look to “history,” as well as the “practices” of the American people. This answer echoes conservative originalists’ use of “history and tradition” to identify liberties implied by the Constitution’s text.

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In case her position wasn’t plain enough, Jackson also distanced herself from another bugaboo of the conservative legal movement: a reliance on international law when interpreting the Constitution. Some liberal and moderate justices—including Jackson’s former boss, Stephen Breyer—occasionally look to international law to glean “the opinion of the world community.” This information may support the court’s conclusion that there is a broad societal consensus against, for instance, executing juvenile offenders or criminalizing sodomy. Conservatives like Scalia despise any gesture toward international law as a perversion of the U.S. Constitution.

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Grassley therefore sought to put Jackson in a tough spot when he asked her: “Do you think it’s appropriate to look to international law when interpreting enumerated and unenumerated constitutional rights?” Yet the nominee did not hesitate: “No, Senator,” she said. So Grassley tried again: “What specific constitutional clauses or rights,” he asked, “has the Supreme Court held can be interpreted by looking to international law?” Jackson responded: “I’m not aware of any that are properly illuminated by reference to international law.”

That isn’t quite right, since the Supreme Court has explicitly affirmed the use of international law when analyzing the Eighth Amendment. But it was a shrewd answer. Jackson knows that this Supreme Court will never look to other nations’ laws when expounding the Constitution. And she has nothing to gain from defending this doomed approach to judging. So she threw Breyer under the bus, disclaiming his pet project without hesitation. (The man wrote a whole book on the subject!)

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Jackson’s rhetorical turn to the right pleased many of her Republican critics. The Washington Examiner’s Quin Hillyer wrote that she sounded “almost like a conservative’s dream nominee,” adding: “Even liberals are now arguing within parameters set by jurists” like Scalia. National Review’s Dan McLaughlin published two pieces cheering Jackson’s repudiation of “progressive pieties.” Talk radio figure Ross Kaminsky lauded her “originalist principles,” speculating that she might be “as good a nominee as conservatives/libertarians could hope for from this president.” Ed Whelan, implacable foe of KBJ, tweeted that she was “validating conservative judicial principles.” The upshot is that Jackson’s testimony signals a victory for the conservative legal movement—proof that even liberal judges must play by conservatives’ rules.

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This commentary reflects some antiquated assumptions about liberal judging today. Many Democratic politicians do still describe the Constitution as a living or “evolving” document (in President Joe Biden’s words). But progressive jurists rarely do. Instead, they understand that originalism and textualism are genuinely useful tools that can frequently result in a liberal outcome.

It turns out that how you apply these theories is just as important as whether you apply them. A rigidly textualist reading of the Civil Rights Act, for example, protects LGBTQ employees, while a looser analysis that factors in congressional intent does not. When the text is not perfectly clear, judges will inevitably draw on other sources, such as the purpose of the statute, to fill in the gaps. Moreover, originalism is quite easy to manipulate: Judges can frame original meaning at a high level of generality or cherry-pick historical texts to reach a desired result. Oftentimes, the original meaning of a constitutional provision is simply unknowable, forcing judges to look elsewhere when elucidating its meaning. Because these methodologies have proved just as flexible as “living constitutionalism,” judges across the ideological spectrum freely deploy them.

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As a result, Supreme Court briefs today are overflowing with textualist and originalist arguments. A liberal group called the Constitutional Accountability Center promotes these theories as fundamentally progressive. And why not? As the organization rightly points out, the underlying values that motivated constitutional guarantees like equal protection may help modern judges understand its meaning. Similarly, the three liberal justices routinely draw on text, history, and tradition to justify their positions. Justice Elena Kagan—who famously quipped that “we’re all textualists now”—is especially adept at following statutory text to a progressive outcome. It would be foolish for Jackson not to endorse these theories now that they are squarely in the mainstream and favored by countless liberals.

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You could look at Jackson’s rhetoric as “pretty great testimony” to how much conservative originalists have “moved the legal field,” as Republican Sen. Ben Sasse said on Tuesday. Or you could see it as proof that their project has failed. The whole point (allegedly) was to limit judges’ authority by relying on objective evidence to reach a defensible, consistent, politically neutral conclusion. But it turns out that these theories give judges plenty of wiggle room to insert their own policy preferences. And Jackson is a deft enough politician to know that there is no downside to telling Republican senators exactly what they want to hear.

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