Rule of Law

Ketanji Brown Jackson Has Perfected the Art of Originalism Jujitsu

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.

Jackson had less luck in the affirmative action cases, though here, too, she did not come away empty-handed. During oral arguments, the justice asked sharp questions about the possibility that abolishing race-conscious admissions would compel universities to discriminate against people of color. Would a Black applicant, for instance, be forbidden from writing an essay about the role that race and racism have played in his life? If so, wouldn’t that deny equal protection to Black Americans, violating its original meaning?

The conservative supermajority saw things differently and bulldozed affirmative action by a 6–3 vote. It did so over Jackson’s dissent, which wove the history of the 14th Amendment into a broader argument about the lingering effects of racism and the constitutional imperative to address them. Yet Roberts’ opinion for the court offered Jackson an olive branch: The chief justice announced that admissions officers could consider essays in which college applicants discuss “how race affected his or her life.” Jackson’s originalist dissent had wrangled a compromise from the chief justice, protecting Black applicants from the kind of discrimination that the majority would’ve otherwise invited.

Her commitment to these methodologies, though, goes far beyond race. Perhaps the most important opinion Jackson wrote this term upheld federal power in the face of state assault. A group of red states led by Indiana had asked the court to blow up social welfare programs, like Medicaid, that are administered by the states. They argued that Congress had no right to impose conditions on these programs that beneficiaries can enforce in court. Their theory would allow states to dismember Medicaid by freely violating the rights of those who use it. In the process, it would have gutted a key civil rights statute that lets Americans sue state officials for infringing upon their rights.

The case was an atom bomb—one that Jackson deftly defused in a 7–2 decision. The justice used a textualist analysis to reject Indiana’s contention that Medicaid is not a “law” capable of creating individual rights. She then deployed an originalist argument to conclude that Congress is well within its powers to enact such a law, administer it through the states, and give beneficiaries a right to sue under it. Her opinion was so bulletproof that even Justice Neil Gorsuch, fervent foe of federal power over the states, felt obliged to join it.

That was emblematic of Jackson’s overall jurisprudence: firmly rooted in history and text, light on soaring rhetoric and heavy on wonky details. Take another example: her solo dissent in a case that curtailed unions’ right to strike. This opinion got a lot of attention for one eloquent line proclaiming that “workers are not indentured servants.” Most of it, however, was devoted to a close read of the interplay between state law and the National Labor Relations Act, not some free-floating devotion to labor over management.

In a different solo dissent, Jackson scorched the majority for warping two federal statutes to keep innocent people behind bars. Her 39-page dissent in Jones v. Hendrix was a textualist master class that painstakingly demonstrated the majority’s departure from the statutes’ plain meaning. And in yet another dissent, Jackson reamed the majority for elevating “policy concerns” over the text of the law to help corporations shunt lawsuits into arbitration. That decision was 5–4; in addition to the other liberals, Thomas joined Jackson’s dissent, giving it his own textualist stamp of approval. Meanwhile, every justice joined Jackson’s unanimous decision in a criminal justice case, which deployed textualism to let judges impose lighter sentences for certain offenses.

There are, no doubt, many compelling criticisms of textualism and originalism. The methodologies are susceptible to cherry-picking; judges can always pluck certain words from a statute, or scraps of evidence from the historical record, to make an argument that fits their ideological or political preferences. These tools can also freeze the law in the past, elevating the biases of long-dead slave owners and other unenlightened men over evolving notions of equal rights and personal freedom.

Like it or not, though, today’s Supreme Court has concluded that originalism is “our law,” and you can’t win the game if you refuse to play in it. Justice Breyer would not play, decrying originalism and rigid textualism through his last days on the bench. His opinions used multifactor balancing tests to weigh competing interests and reach a fair result, using history and text as a garnish for his analysis rather than a foundation. Breyer’s candor was commendable; many liberals believe that’s what all judges do, whether they admit it or not. But it was not tactical, or particularly helpful to the progressive cause. Too often, his style played right into the hands of conservatives eager to overthrow nonoriginalist precedent.

Jackson, who clerked for Breyer, takes a radically different approach. Among President Joe Biden’s younger judicial appointees, she is not alone. Other Biden judges have adopted this philosophy: U.S. Court of Appeals for the 4th Circuit Judge Toby Heytens and U.S. Court of Appeals for the District of Columbia Circuit Judge Florence Pan, for instance, have authored decisions greenlighting legal consequences for the insurrectionists of Jan. 6 using textualist and originalist principles. And some progressive organizations—most prominently, the Constitutional Accountability Center—are devoted to backing up progressive legal principles with arguments rooted in history and text. Justice Elena Kagan, too, has been beating the drum for progressive textualism since joining the bench and castigating conservatives for betraying textualist principles when it suits them.

The future of progressive jurisprudence—of all constitutional law, really—rides on how well Jackson and her allies can persuade their colleagues to embrace a more rigorous form of textualism and originalism, one that doesn’t bend to the whims of conservative ideology. Liberals did not invent these tools. But they must now use them to save the court from itself.