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To anyone who read or heard the opening statement of now-Supreme Court Justice Amy Coney Barrett a year-and-a-half ago, an odd sense of deja vu may have crept in while watching Judge Ketanji Brown Jackson deliver hers to the Senate Judiciary Committee last Monday afternoon.
Jackson’s statement, in structure, style, and verbiage, is strikingly similar to Barrett’s, so much so that one could be forgiven for thinking that she and her advisers thought it wiser to play against type than to throw raw meat to Demand Justice and other abortion activists groups who were responsible for putting her in that seat. Jackson’s opening statement wove a personal narrative invoking patriotism, faith, and family routinely. She referred to the United States as an “incredible country” and a “great nation,” and she promised to work to support the “grand experiment of American democracy.”
“I hope that you will see how much I love our country and the Constitution, and the rights that make us free,” she gushed. Jackson, whose religious views have been opaque to date, spoke frequently of “gratitude”, and her “faith” that “sustains me at this moment,” even sounding an Evangelical note in saying, “I can honestly say that my life has been blessed beyond measure.”
Jackson played hard on “the ties that bind” family and community as well, reflecting, “My parents taught me that, unlike the many barriers that they had had to face growing up, my path was clearer, such that if I worked hard and believed in myself, in America I could do anything or be anything I wanted to be.”
Jackson mentioned that her parents had been married for 54 years (she herself has been married for 25), and gave shout-outs to members of her family in the audience, including her brother who volunteered for the U.S. Army in the wake of the September 11th attacks and served two tours of duty in the Middle East. As the presumptive second working mother on the current Court after Barrett (although Sandra Day O’Connor beat both of them to that honor), Jackson took another page from the Barrett playbook by saying to her two daughters, “Girls, I know it has not been easy as I have tried to navigate the challenges of juggling my career and motherhood. And I fully admit that I did not always get the balance right. But I hope that you have seen that with hard work, determination, and love, it can be done.”
Jackson even professed commitment to judicial restraint, the cardinal virtue of legal conservatism, promising, “I know that my role as a judge is a limited one—that the constitution empowers me only to decide cases and controversies that are properly presented. And I know that my judicial role is further constrained by careful adherence to precedent.”
Jackson was asked about her approach to interpretation during the hearing on her confirmation to the federal court of appeals for the District of Columbia. She replied, “I do not have a judicial philosophy per se, other than to apply the same method of thorough analysis to every case, regardless of the parties.”
A “method” that emphasizes uniformity regardless of the identity of the parties involved can certainly be laudable, but only if that method is sound. But one suspects that in her case, a professed reliance on “method” is verbal sleight of hand for judicial activism. Jackson illuminated her form of pragmatic “methodology” by quoting a statement by Justice Stephen Breyer, whose seat she is poised to take on the court. Breyer said at his nomination, “What is law supposed to do, seen as a whole? It is supposed to allow all people—all people—to live together in a society, where they have so many different views, so many different needs, to live together in a way that is more harmonious, that is better, so that they can work productively together.”
Jackson’s judicial pragmatism may pose as a “neutral method” of interpretation, but in fact it’s a species of utilitarian thought that seeks to set aside historically-based “presuppositions” that are thought to burden the originalist approach in favor of asking “what works for people.” In so doing, pragmatism substitutes the judgment of the court—or of five members of the Supreme Court—for the judgment of the Framers of the constitutional provision or the drafters of the statute who in fact spoke for the People they represented.
According to a 2007 biography of Justice Clarence Thomas, Jackson says she thought of Thomas as she and the Justice shared lunch (presumably when she was clerking for Justice Breyer), reflecting, “I don’t understand you. You sound like my parents. You sound like the people I grew up with.” But, she told Thomas’s biographers, “the lessons he tended to draw from the experiences of the segregated South seemed to be different than those of everybody I know.”
Why did Jackson not recognize the lessons Thomas took from a shared formative experience? One can only speculate. Perhaps his upbringing was harder, as it involved poverty and a broken home—as Jackson’s did not? Perhaps because for Thomas, nothing was received as a “privilege”, but earned by hard work. Jackson grew up in an intact family—a credit to her parents—and thereby enjoyed economic and social privileges that Thomas did not. As Thomas reflects in interviews in the biographical documentary about his life, “Created Equal: Clarence Thomas in His Own Words,” he came to believe that those he grew up with in poverty gained little benefit from the heavy hand of government intrusion—the kind of social policies that Jackson’s public educator parents likely accepted as Gospel. When what matters to you as a judge is what works for people, the people who serve as your point of reference make all the difference.
Judge Jackson’s brand of judicial pragmatism is an outmoded interpretive framework, because most judges, including those on the Supreme Court, came to see that it only reinforced populist political views of interpretation, not the Framers’ or lawmakers’ purpose in crafting law on behalf of the people they represented.
“We are all originalists now,” Justice Elena Kagan once said, foreshadowing Jackson’s new-found pretension to constitutionalism of that same stripe. Here’s hoping that if confirmed, Justice Jackson will have ears to hear the wisdom of more senior members of the Court, and that there will be many more lunchtime conversations that turn on lived experience.