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03/26/2022

Randy Barnett on Judge Jackson and Originalism
Michael Ramsey

In the Wall Street Journal, Randy Barnett: Ketanji Brown Jackson and the Triumph of Originalism - Biden’s Supreme Court nominee comes close to endorsing the philosophy that sank Robert Bork in 1987.  From the introduction: 

Judge Ketanji Brown Jackson may not be an originalist, but she sounded like one in her confirmation hearings this week. “I believe that the Constitution is fixed in its meaning,” she said on Tuesday. “I believe 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.”

Even a nominee chosen by a Democratic president and facing a Democratic Senate felt it was necessary to say that she would adhere to the original public meaning of the text. To appreciate the significance of this development requires a bit of history.

Robert Bork described himself explicitly as an “originalist” when President Reagan nominated him to the high court in 1987. Democratic senators characterized originalism as a dangerously reactionary philosophy that would “turn back the clock” on civil rights and liberties. After the Senate rejected Bork, no Republican nominee adopted the label “originalist” until Neil Gorsuch, 30 years later. Since 2017, however, Brett Kavanaugh and Amy Coney Barrett also explicitly identified as originalists.

And in conclusion:

Why does this matter? First and foremost, it legitimates originalism. “The prevailing interpretive frame for interpreting the Constitution is now very clearly looking back through history,” Judge Jackson testified. “That is now the way in which constitutional interpretation is done.” As Ed Whelan of the Ethics and Public Policy Center observed: “When the next Republican president nominates the next conservative nominee, it’s going to be very difficult for Dems to object that the nominee is an originalist.”

“We are all originalists,” Elena Kagan said during her 2010 confirmation hearings. Many discounted that pronouncement because she seemed to limit originalism to the “very specific rules” in the Constitution. Judge Jackson’s pronouncement was less conditional; her description of originalism was more specific and sweeping. Whether or not Judge Jackson adheres to originalism on the high court, she has affirmed that it is the norm.

Also, from the Wall Street Journal's editorial board: Ketanji Brown Jackson and Antonin Scalia - She professes—at least for now—the late Justice’s philosophy of original meaning.  It begins:

We’re all originalists now, apparently. “I believe that the Constitution is fixed in its meaning,” Judge Ketanji Brown Jackson told the Senate during her Supreme Court confirmation hearings this week. “I believe that it’s appropriate to look at the original intent, original public meaning of the words.” She called it “a limitation on my authority to import my own policy views.”

Somewhere Justice Antonin Scalia must be singing, as he was known to do before he ascended. The great Scalia, who brought originalism to the fore before his death in 2016, might furrow his brow at the word “intent,” since his judicial philosophy was to examine the plain meaning of words, not to divine what James Madison was really thinking.

Yet Judge Jackson’s comment is a mark of Scalia’s influence. He once joked that originalism was viewed as a “weird affliction that seizes some people—‘When did you first start eating human flesh?’” Now even Judge Jackson, whom President Biden expects to be a reliable liberal vote, wants to be seen as a believer.

Related, Ed Whelan at NRO Bench Memos: KBJ’s Implausible Claim to Be an Originalist, concluding:

There are of course various claimants to the mantle of originalism, some more plausible than others. For present purposes, I will simply note that just as no liberal supporter of Jackson believes that she is an acolyte of Justice Scalia, no Republican senator should be expected to believe that either.