Ketanji Brown Jackson was widely assumed to be a living constitutionalist in the vein of the other liberal members of the Supreme Court. But at times during her confirmation hearing, Judge Jackson sounded more like the late Justice Scalia than like Justice Breyer.
For decades, there has been a split on the Supreme Court, and in the field of constitutional law, between conservative “originalists” and liberal “living constitutionalists.”
Originalism is a method of interpreting the constitution that looks to the original meaning of the text, usually the “original public meaning,” or in other words, what the constitution meant to an educated member of the public at the time of ratification. On the current court, the Republican appointees Justices Thomas, Barrett, Gorsuch, and others generally take an originalist approach in their decisions.
Living constitutionalists, on the other hand, believe that the constitution is a living and evolving document that should be “updated” by the Supreme Court to fit with modern opinions and sensibilities. Justices Kagan, Sotomayor, and Breyer generally rely on this judicial philosophy.
Everyone would assume Judge Jackson, as a Biden nominee, would be an avowed advocate for living constitutionalism. But in her hearing, Judge Jackson sounded like an originalist. Time after time, she embraced originalist principles. She made numerous references to interpreting the constitution at “the time of the founding,” or figuring out “what the constitution meant in history.”
Speaking to Senator Grassley, she said, “I do not believe that there is a living constitution,” and said the constitution shouldn’t be “infused with my own policy perspective or the policy perspective of the day.”
And going even beyond a seeming endorsement of originalism, Judge Jackson declared that “it appears now that the Supreme Court has taken Justice Scalia’s view” over Justice Breyer’s. In other words, Scalia has won the battle of ideas and originalism is just the way things are done now.
The ramifications of Ketanji Brown Jackson’s statements on originalism cannot be overstated.
If a Justice Jackson truly follows the principles she endorsed in her hearing, we may be getting a liberal originalist confirmed to the Supreme Court, which would be a fantastic development for the ideological diversity of the court. While liberal originalism may sound like an oxymoron, scholars like Akhil Amar at Yale Law School have shown that holding both originalist and politically liberal views can be compatible and intellectually coherent. An originalist Justice Jackson could serve as a sort of swing vote on the court, sometimes siding with the left-wing of the court, and other times siding with the more conservative justices on originalist grounds.
While it would be great if Judge Jackson were a true originalist, it’s much more likely that she will judge more like a living constitutionalist than she lets on. But the fact that she explains her jurisprudence in the language of originalism speaks volumes. It means that, just as Judge Jackson implied in her hearing, Scalia and originalism have won. Originalism is now the dominant judicial philosophy, and even Democratic nominees profess to adhere to it.
The long-term significance of this hearing has yet to be determined. Will future democratic judicial nominees follow in Ketanji Brown Jackson’s footsteps? Will the left eventually adopt originalist methods of jurisprudence in an effort to stay relevant? The Supreme Court of the future may not be split between originalism and living constitutionalism, but between liberal and conservative strains within originalism. Ketanji Brown Jackson’s hearing may have just ushered in the beginning of a new golden era of originalist jurisprudence.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.