Mark Joseph Stern: Ketanji Brown Jackson Joined the Supreme Court With a Big Idea [View all]

[Nevilledog]

https://slate.com/news-and-politics/2024/05/liberal-originalism-ketanji-brown-jackson-not-working.html

During her confirmation hearing in 2022, Justice Ketanji Brown Jackson introduced herself to Congress as an originalist. This surprising move from a presumptively liberal justice signified to many the triumph of originalism as the accepted methodology of the Supreme Court. Jackson was following in the footsteps of Justice Elena Kagan, who famously declared that “we are all originalists now” during her own confirmation.

Kagan, however, came to regret that quip after watching her conservative colleagues implement a series of GOP policy preferences in the name of applying the Constitution’s “original” meaning, which is what originalism claims to be. She is surely not the only progressive with second thoughts: The legal left’s embrace of originalism was a major influential development in the 12 years between Kagan’s and Jackson’s elevation to the court—one that’s arguably waning today, despite Jackson’s appointment. After three terms of precedent-smashing activism by the Supreme Court’s 6–3 conservative supermajority, almost always under the banner of originalism, the methodology looks more intellectually bankrupt, manipulable, and dangerous than ever.

Some liberals have responded with accusations that this supermajority peddles “fauxriginalism,” cherry-picking history to fit Republicans’ favored results. This allegation is certainly true, but doesn’t answer the underlying question: Is it even a good idea to concede that the “original meaning” of the Constitution—even if it could be reliably ascertained—is the authoritative one? Jackson’s approach illustrates the benefits and risks of trying to beat originalists at their own game from the left. And with each passing term, the payoff looks smaller and smaller.

For progressives, the problems begin with the origin of the theory. Conservative scholars, politicians, and activists developed the idea of originalism in response to Brown v. Board of Education—yes, the decision that desegregated public school—arguing that the Framers of the 14th Amendment would never have intended to integrate public education. They may have been right about that claim: The same Congress that proposed the 14th Amendment in 1866 segregated the District of Columbia’s public schools, while a supermajority of states that ratified the amendment also strictly separated education by race. That doesn’t mean the push toward integration was the wrong move for our country and our 20th-century understanding of what equal rights ought to mean legally. Regardless, in the coming decades, the burgeoning conservative legal movement refined and pushed the theory to combat other contested Supreme Court decisions, including Roe v. Wade, Griswold v. Connecticut (birth control), Miranda v. Arizona (self-incrimination), Reynolds v. Sims (malapportionment), and Regents v. Bakke (affirmative action).

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