Ketanji Brown Jackson Has Perfected the Art of Originalism Jujitsu

[In It to Win It]

Slate

No paywall: https://archive.ph/8orWy

During her confirmation hearing, Justice Ketanji Brown Jackson associated herself with two methodologies, originalism and textualism, that are prized by the conservative legal movement. It was not a feint. With her first term wrapped up, it’s safe to say that Jackson really does have zero interest in the “living Constitution” sometimes associated with liberal judging. In place of lofty odes to the majestic generalities of the Constitution, the justice has consistently favored its original meaning and a statute’s plain text over other considerations. It’s a stark departure from her predecessor, Justice Stephen Breyer, who could not write in the originalist style to save his life. But was it effective?

In short: Yes, to a point. Jackson may have helped stave off disaster in a handful of key cases, steering the court away from hard-right results through tactical deployment of originalist and textualist arguments. Unlike Breyer, she expertly wielded the conservatives’ own tools against them. She spoke the language of the right to promote left-leaning principles. And from time to time, she beat the 6–3 supermajority at its own game.

Jackson’s originalism has received the most attention in the context of race, and for good reason: Like most progressive originalists, she views the Constitution through the lens of the 13th, 14th, and 15th amendments, passed in the wake of the Civil War. These amendments fundamentally altered the entire Constitution, expanding federal power over the states while extending civil rights and equal citizenship to all Americans. (In theory, at least.)

This Second Founding informs many liberals’ vision of the law today, including Jackson. Contemporary scholars on the left, for instance, point out that Congress enacted explicitly race-conscious measures after the Civil War to address past discrimination against Black Americans. Jackson laid out this evidence during arguments over the Voting Rights Act, when Alabama’s solicitor general claimed the law’s consideration of race was unconstitutional. The framers of 14th Amendment, Jackson explained, used “race-conscious” remedies to safeguard the rights of Black Americans. How could it be unconstitutional for the Voting Rights Act to do the same? It was, as the New York Times’ Adam Liptak has observed, “a kind of mission statement” from the brand new justice.

At the time, it seemed as if Jackson was sketching out her future dissent. But in a surprise move, the court sided against Alabama, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the three liberals, upholding the Voting Rights Act in full. As Cristian Farias noted in Vanity Fair, the chief justice’s reasoning seemed to reflect Jackson’s own comments at oral argument, especially in their embrace of race-conscious solutions to the political subjugation of Black Alabamians. Her views may well have persuaded—or shamed—Roberts and Kavanaugh to save what remains of the VRA.

[stopdiggin]

1. interesting.

and I still think originalism and textualism - are soft brained nonsense.

(while fully prepared to admire the work of someone capable of using whatever tools are available - with justice as a rooted goal)

[Mblaze]

2. It seems much like

Arguing against “Prosperity Gospel”, Trump worshipping Evangelicals by using actual Bible verses. Play them where they lay.

[Ligyron]

3. Well, she's about 10 times smarter than any of those RW, religious nut job liars in the majority.

Problem is, she can make them look like idiots or skillfully steer them into the light where they do the *left* thing on occasion but money or a lifetime of RW religious propaganda *trumps* honesty just about every time with those guys and girls.

And we're stuck with them unless by some miracle they succumb to the so-called Greenhouse Effect, which has absolutely nothing to do with climate but everything to do with the DC cocktail circuit, and turn more liberal as time goes on. Problem is: time does go on and they're anxious to do as much damage to long established norms concerning women's rights, voting rights, affirmative action and any other "woke" causes as fast as possible and they seem to be doing an excellent job of it so far.