[[link removed]]

KETANJI BROWN JACKSON IS REDEFINING WHAT IT MEANS TO BE A LIBERAL
JUSTICE  
[[link removed]]


 

Elie Mystal
August 5, 2024
The Nation
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ During her short time on the Supreme Court, Jackson has articulated
a skepticism toward judicial power that feels particularly urgent in a
post-Roe world. _

, The Nation

 

This article appears in the August 2024 issue of The Nation
[[link removed]] , with the
headline “Justice for the People.”

The Supreme Court is the most antidemocratic branch of government. Its
justices are nominated, not elected, and they hold their positions for
life, making them unaccountable to the people whose rights and
liberties they curtail. For at least the past 24 years, ever since the
court installed George W. Bush as president instead of permitting a
recount of votes cast in Florida, the Republicans controlling the
court have been increasingly hostile to democracy. They’ve gutted
the Voting Rights Act
[[link removed]],
allowed states to gerrymander away the voting power of entire
constituencies, overturned or vitiated popular legislation
regarding gun safety
[[link removed]] and environmental
protection
[[link removed]],
and expanded their own power at the expense of the other branches
[[link removed]].

The president and Congress have done nothing to stop these attacks on
democracy. Lawmakers won’t pass an ethics bill to prevent justices
from engaging in corruption. They won’t cut the court’s budget.
The president and Congress won’t even consider passing court
expansion, the surest constitutional method for bringing an extremist,
antidemocratic court to heel. They’re willing to write strongly
worded letters appealing to Chief Justice John Roberts to _do
something_, but the branches elected by the people won’t use their
actual powers to reform the court. The result is that people nobody
voted for routinely punk the people everybody voted for, and all that
our elected representatives do is shrug and tell us to vote harder
(and they do this even as the court itself tries to make those votes
functionally meaningless).

So it’s been all the more startling to see that one of the few
public officials who seems interested in stopping the antidemocratic
court from stomping all over the elected branches of government is a
member of the Supreme Court itself. Ketanji Brown Jackson
[[link removed]],
the newest justice, has been on the court only two years. But in that
time, she has shown herself to be not only willing but eager to call
out her colleagues’ frequent attempts to inflate the Supreme
Court’s power. She is certainly the justice who is most willing to
let democratic processes resolve issues without court intervention.
While time will be the true test, she appears thus far to be
developing into that rarest of public servants: a powerful
officeholder who doesn’t think their office should hold as much
power.

This has been particularly surprising to me because of the history she
brings to the job. Jackson wasn’t a blank slate when she was
nominated to the Supreme Court in 2022. She had already established a
strong record in defense of civil rights, especially for people who
are incarcerated, impoverished, or living with disabilities.
Traditionally, judges who believe in robust protections for human
rights tend to favor strong, aggressive courts. “Democracy,” for
all of its charms, tends to leave a lot of people behind. A powerful
court that protects the rights of people who will never win a
popularity contest can often be the corrective that democracy needs.

Moreover, Jackson is Black, and unlike some Black judges, she’s
proud of it. I think that’s relevant when you understand how Black
liberals of my generation (and Jackson’s, I believe) were taught to
view the court and its power, particularly during the critical period
of the civil rights era. It was the court, not democracy, we were
told—usually by white people through their media and educational
structures—that “ended” segregation and Jim Crow laws. A strong,
respected, and, yes, antidemocratic court was needed to protect people
of color and vulnerable groups from the tyranny of the white
democratic majorities.

As it turns out, this story wasn’t entirely true. It was social
justice movements and the laws they pushed by means of the democratic
process that changed the country. _Brown v. Board of Education_ was
important, but it wouldn’t have defeated Jim Crow without the 1964
Civil Rights Act and the 1965 Voting Rights Act. All we really needed
the Supreme Court to do was prevent states from violating the 14th and
15th Amendments (a job the court refused to do for nearly 100 years),
extend those constitutional protections to women and the LGBTQ
community, and uphold popular laws, passed by Congress, over the
objection of racists.

Still, I must confess that I find myself unwilling to fully reject the
old view; I know what white people are capable of, and the specter of
unchecked white majorities fills me with dread. Justice Jackson, in
contrast, seems motivated by the old adage “The cure for the evils
of democracy is more democracy.” She has shown a willingness to let
the voters decide the critical issues—except the issue of who gets
to vote. On that question, on the fundamental question of who gets to
participate in our democracy, Jackson unequivocally says
“everybody” and is in favor of using the full power of the court
to make that a reality.

Jackson’s approach is already distinct from that of her immediate
predecessor, Stephen Breyer. Breyer was a centrist pragmatist who
thought the court could assert as much power over Congress, or be as
deferential to it, as was needed to accomplish the goals of a free and
fair society. Nor does Jackson appear to fully adopt “living
constitutionalism,” the theory, often associated with liberal
justices, that the Constitution is an evolving document whose precepts
must match modern definitions and sensibilities. Instead, she’s
carving out a unique jurisprudence that looks first at the text, then
at the history, and then tries to figure out what the people’s
elected representatives were trying to accomplish when they wrote the
laws or constitutional amendments. The other liberal justices, Sonia
Sotomayor and Elena Kagan, do this too, but Jackson seems more
concerned than any of her colleagues with fitting the court within the
structures of democracy, instead of letting the court overpower the
elected branches of government.

This doesn’t necessarily lead to the political conclusions I would
like—and I can’t say that I agree with all of Jackson’s
opinions. But her approach is clear and consistent. Her career is
still evolving, but what she’s done so far has been intellectually
thrilling. There’s a possibility that we’re looking at the early
stages of a new kind of liberal jurisprudence.

Living history: Ketanji Brown Jackson speaks at the 60th Commemoration
of the 16th Street Baptist Church bombing in Birmingham, Alabama.
Getty Images

As of this writing, Jackson has authored 12 majority opinions
[[link removed]] for the Supreme
Court. Those cases have, admittedly, been relatively unimportant.
I’m sure I’m supposed to say, “Every Supreme Court case is
important,” and they are… for somebody. But pretending that every
case has equal relevance to the functioning of our democracy is how
you get really bad “statistical” analyses that purport to show
that the conservative supermajority is actually very moderate and
cool. Conservatives have an iron grip on the Supreme Court: They get
to choose which cases are heard, the legal questions argued in those
cases, and how the cases are decided. They naturally get to write the
controlling opinions in all of the most important cases, because they
are winning. The liberals get few (if any) opportunities to shape the
law. And as Jackson is the most junior liberal justice, she’s often
not the one writing the main dissent to whatever the conservatives
have cooked up, as the honor of shouting into the void is given out
based on seniority.

Still, it’s possible to get a sense of what Jackson cares about and
her jurisprudential worldview—her “vibe,” if you will—by
reading her dissents and concurrences, of which she’s written quite
a few. What she writes, in cases where she doesn’t have to weigh in,
matters.

In May, Jackson wrote a dissent
[[link removed]] that
went against her presumed partisan interests. In a case involving a
simple temporary injunction, _Robinson v. Callais_, competing
lower-court rulings had left Louisiana without a constitutionally
acceptable map for the upcoming federal elections. One district court
ruled that Louisiana’s old map was unconstitutional because it
didn’t have enough majority-Black congressional districts, while a
different district court ruled that Louisiana’s revised map was
unconstitutional because it had too many. When the case got to the
Supreme Court, the conservative majority issued a ruling that locked
in a map that included two majority-Black congressional districts
(which was a win for the NAACP and the other Black voting-rights
advocates who brought the case), with the justices arguing was that
there wasn’t enough time before the next election for the state
Legislature to draw yet another map.

Jackson disagreed. Not only did she think there was enough time for
Louisiana to go back to the literal drawing board, she reasoned that
the Supreme Court was the body that had caused the delay in the first
place by deciding to take the case, which, she argued, could have been
adequately resolved by the lower courts. “Were it not for this
Court’s intervention,” she wrote, “[the lower court] may have
selected a map that complies with both [the Voting Rights Act] and the
Equal Protection Clause.” Jackson was making an argument to let the
political and legal redistricting process play out, in all of its
messiness, even though that process risked producing a map that was
less fair to Black voters in the state. It doesn’t get much more
“pro-democracy” than allowing the state Legislature in Louisiana
to take another crack at drawing a congressional map.

Another way to get a feel for Jackson’s intellectual process is to
listen to what she says during oral arguments. One of the
highest-stakes cases this term was _Looper Bright Enterprises v.
Raimondo
[[link removed]]_, which
involved a direct challenge to what’s known as
“_Chevron_ deference,” the idea that courts should defer to the
executive agencies when implementing laws passed by Congress. As far
back as oral arguments, which took place in January, it was possible
to glean a lot about Jackson’s position. During these arguments
[[link removed]],
she went toe-to-toe with alleged attempted rapist Brett Kavanaugh over
the question of whether a president’s political agenda should be
reflected in the actions of their executive agencies. Essentially, the
case was about who should have the power to interpret and effectuate
the laws passed by Congress: the president, whom everybody elects, or
the courts, whom nobody does. Kavanaugh said that the power should not
belong to the executive and argued that _Chevron_ was, in the words
of one legal scholar, “a source of extreme instability” because
the law (as interpreted by the executive agencies) can change wildly
every four to eight years, depending on who wins the White House.

Jackson argued that the shifting nature of the law is a feature of
democracy, not a bug. “Taking into account the policy goals of the
new administration,” she said, “reflects a democratic structure
where we have the new administration being elected by the people on
the basis of certain policy determinations.” Jackson then elaborated
on the role of the court itself, countering Kavanaugh’s worry about
legal instability: “I guess my concern is…judicial policymaking is
very stable, but precisely because we are not accountable to the
people and have lifetime appointments. So, if we have gaps and
ambiguities in statutes and the judiciary is coming in to fill them, I
suppose we would have a…separation-of-powers concern related to
judicial policymaking.”

If that sounds a little wonky, here’s another way to think of it:
Consider _Jurassic Park_. In that story, scientists use “frog
DNA” to fill in the gaps in the dinosaur genetic code they are
trying to re-create. But that has disastrous consequences for the
scientists’ ability to control dinosaur reproduction. During
the _Chevron_ argument, Jackson was making the case against using
judicial DNA to fill in the gaps left by Congress, saying that it
would create the disastrous problem of unaccountable
lifetime-appointed judges usurping the will of the people as expressed
through elections. (Jackson eventually joined Elena Kagan’s dissent
in the case, while the conservative justices
overturned _Chevron_ and gave courts, not the people, ultimate
authority over the administrative state.)

Jackson has also been able to get her views on the record through her
concurrences. She authored an important one in mid-May in a case where
she agreed with a decision by Clarence Thomas but took a sharply
different route to get there. The case was _Consumer Financial
Protection Bureau v. Community Financial Services Association of
America
[[link removed]]_, and it
involved a conservative attempt to defund the bureau by attacking the
way Congress had decided to fund it. Thomas relied on his view of
18th-century history to conclude that the CFPB can continue to exist,
but he did so by placing the courts in charge of telling Congress how
it can fund its priorities.

Jackson took a different tack. “When the Constitution’s text does
not provide a limit to a coordinate branch’s power,” she wrote,
“we should not lightly assume that Article III implicitly directs
the Judiciary to find one…. An essential aspect of the
Constitution’s endurance is that it empowers the political branches
to address new challenges by enacting new laws and policies—without
undue interference by courts.”

If Jackson’s idea here caught on, it would force a huge change in
the Supreme Court’s use of power. The current conservative majority
is fond of saying that they’re just “following the
Constitution,” but what they’re really doing is exploiting it.
They use constitutional vagueness as an excuse to allow the courts to
step in and resolve questions the way they claim “the founders”
would have wanted—and then they tell us it’s merely a coincidence
that Thomas Jefferson and James Madison always wanted Mitch McConnell
and Donald Trump to win.

In her concurrence, Jackson was arguing that Thomas and his fellow
conservatives have it backwards. She argued that, absent an
unambiguous limitation in the text of the Constitution, Congress—not
the courts—gets to decide what Congress can or cannot do. If there
are two reasonable interpretations of the text, the court should not
superimpose its interpretation of the Constitution on Congress, even
when the conservatives claim to be in séance with the founding
fathers. It’s a much more limited role for the court than the one
that the conservatives trumpeting “judicial restraint” have been
selling for the past 40 years.

Six injustices: Protesters hold up cardboard cutouts of the Supreme
Court’s conservative justices in May 3, 2022, in New York. (Bryan R.
Smith / Getty Images)

For what it’s worth, Jackson’s view is the prevailing one in other
democracies. In countries such as Canada, Germany, and South Africa,
the high courts do not regularly overrule laws passed by the elected
branches of government; their justices are not political stars whose
deaths or retirements affect which rights people do and do not have.
But in the United States, we consistently let the best guesses of five
unelected justices veto entire pieces of national legislation, based
on those justices’ kooky theories of what the Constitution might
mean. If the Constitution is clear, then of course the courts should
step in. But if it’s not, it makes no sense to have unelected rulers
place their interpretations over and above those of the
representatives that people actually voted for. At least, it makes no
sense in a “democracy.”

This approach comes at a cost, however, and the cost is that Jackson
is a less reliable vote for standard liberal decisions than some of
the other justices. I can’t predict her vote as easily as I can
those of, say, Sotomayor, because I never know when her pro-democracy
preferences are going to bite my preferred political outcomes in the
ass. Jackson has shown a willingness to come to the “wrong”
outcome for the “right” reasons.

Jackson also flips the script on how people might expect a liberal
justice to reason through a case because of her willingness to use
originalism, the conservative interpretative philosophy that says all
laws should be calcified in what old dead white men thought long ago.
She is quick to use the history, traditions, and “original intent”
of laws as they would be understood by the people who wrote them. But
I wouldn’t call Jackson an originalist. Instead, I agree
with _Slate_’s Mark Joseph Stern, who coined the phrase
“originalism jujitsu” to describe what she is doing. Jackson is
willing to use originalism to show that the conservatives are wrong on
their own declared terms.

We can see this in Jackson’s dissent
[[link removed]] in _Students
for Fair Admissions v. President and Fellows of Harvard College_,
which ended affirmative action last June. In that case
[[link removed]], the
conservative originalists, most notably Thomas, invented, whole cloth,
a new interpretation of the 14th Amendment as “colorblind.”
Jackson, in turn, obliterated Thomas’s ahistorical and
counterfactual argument. “Our country has never been
colorblind…,” she wrote. “Slavery should have been (and was to
many) self-evidently dissonant with our avowed founding principles.
When the time came to resolve that dissonance, eleven States chose
slavery.” Jackson went on to explain that the Reconstruction
amendments were written specifically to address the wrongs of slavery
and referenced political support for the ratification of the 14th
Amendment at the time. She used the kind of evidence that is usually
dispositive to conservative originalists, at least when the rights of
white people are on the line.

Jackson’s felicity with the terms and precepts of originalism serves
a critical function on the court. It allows her to go up against
Thomas, Samuel Alito, and Neil Gorsuch on their own terms and expose
their brand of originalism as unmoored from intellectual consistency.
The conservatives embrace originalism because it allows them to
deliver anti-Black rulings, and we can see this because whenever
Jackson points out that originalism should lead to an outcome that
tears down white supremacy, the conservatives abandon originalism.

A tale of two courts: (top) Members of the Warren Court in 1962;
(bottom) Ketanji Brown Jackson walks with Chief Justice John Roberts
in 2022 (Bottom: Saul Loeb /Getty Images)

I believe that Jackson’s nascent iconoclasm would be universally
respected if she were white, and downright lauded if she were
conservative and could bend her process to always arrive at the
outcome that does the most harm to Black people, women, and the LGBTQ
community—the way Clarence Thomas does. But since she is neither of
those things, mainstream court watchers treat her like she’s just
another lefty vote, while conservatives slander her as a “lesser
Black woman
[[link removed]]”
who doesn’t belong on the court.

The reality is that Jackson might be the new archetype for a liberal
justice in the post–_Roe v. Wade_ era. In a world where liberals
have no power on the court (Democratic appointees haven’t been in
the majority since Earl Warren retired in 1969), Jackson is the one
who seems to have gotten the memo and is responding by articulating a
vision that would give the court less power. Instead of propping up
Warren-style jurisprudence and waiting for the Democratic Party to get
its head out of the sand, Jackson is arguing for a court that perhaps
isn’t as powerful as the Warren court was… but also isn’t as
destructive as the Rehnquist or Roberts courts.

Jackson summed up her pro-democracy view in _Moore v. United States
[[link removed]]_,
a case decided near the end of this term that involved Donald
Trump’s “repatriation tax.” Jackson joined a majority opinion
upholding the tax but added in her concurrence: “I have no doubt
that future Congresses will pass, and future Presidents will sign,
taxes that outrage one group or another—taxes that strike some as
demanding too much, others as asking too little. There may even be
impositions that, as a matter of policy, all can agree are
wrongheaded.” But, she goes on to argue, the solution does not lie
with the court; instead, she wrote, quoting a dissent from a prior
Supreme Court ruling, “the remedy for such abuses is to be found at
the ballot-box.”

Imagine deciding tax cases based not on love letters between long-dead
enslavers but on what people actually voted for Congress to do.

It’s a much more limited view of the court than liberals have
traditionally supported. But after 50 years during which Republicans
have controlled the Supreme Court, shoving their worldview down our
throats over the objection of the popular majorities, I could be
convinced to give it a try. What liberals have been doing hasn’t
worked in a lifetime. Maybe we should listen to Jackson and place our
faith in ourselves, instead of the courts.

_ELIE MYSTAL is The Nation’s justice correspondent and the host of
its legal podcast, Contempt of Court
[[link removed]].
He is also an Alfred Knobler Fellow at the Type Media Center. His
first book is the New York Times bestseller Allow Me to Retort: A
Black Guy’s Guide to the Constitution,
[[link removed]] published by The New
Press. Elie can be followed @ElieNYC [[link removed]]._

_Copyright c 2024 THE NATION. Reprinted with permission. May not be
reprinted without permission
[[link removed]].
Distributed by PARS International Corp
[[link removed]]. _

_Founded by abolitionists in 1865, The Nation has chronicled the
breadth and depth of political and cultural life, from the debut of
the telegraph to the rise of Twitter, serving as a critical,
independent, and progressive voice in American journalism._

_Please support progressive journalism. Get a digital subscription
[[link removed]] to
The Nation for just $24.95!_

_Thank you for reading The Nation! _

_We hope you enjoyed the story you just read. It’s just one of many
examples of incisive, deeply-reported journalism we
publish—journalism that shifts the needle on important issues,
uncovers malfeasance and corruption, and uplifts voices and
perspectives that often go unheard in mainstream media. For nearly 160
years, The Nation has spoken truth to power and shone a light on
issues that would otherwise be swept under the rug._

_In a critical election year as well as a time of media austerity,
independent journalism needs your continued support. The best way to
do this is with a recurring donation. This month, we are asking
readers like you who value truth and democracy to step up and support
The Nation with a monthly contribution. We call these monthly donors
Sustainers, a small but mighty group of supporters who ensure our team
of writers, editors, and fact-checkers have the resources they need to
report on breaking news, investigative feature stories that often take
weeks or months to report, and much more._

_There’s a lot to talk about in the coming months, from the
presidential election and Supreme Court battles to the fight for
bodily autonomy. We’ll cover all these issues and more, but this is
only made possible with support from sustaining donors. Donate
today—any amount you can spare each month is appreciated, even just
the price of a cup of coffee._

_The Nation does now bow to the interests of a corporate owner or
advertisers—we answer only to readers like you who make our work
possible. Set up a recurring donation today and ensure we can continue
to hold the powerful accountable._

_Thank you for your generosity._

_Donate $10 monthly to The Nation.
[[link removed]]_

* Supreme Court
[[link removed]]
* Ketanji Brown Jackson
[[link removed]]
* judicial power
[[link removed]]
* Roe v. Wade
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]