Why the Elevation of Ketanji Brown Jackson to the US Supreme Court Means Very Little

Apr 07, 2022

Whether you support President Biden’s choice to replace US Supreme Court Justice Stephen Breyer or not, Ketanji Brown Jackson’s elevation to the position of Supreme Court Justice will have very little effect on the direction of both the High Court and the country.

The Senate voted 53-47 Thursday to confirm Jackson, making her the first Black woman to be a member of the nine-judge panel.

Thursday's confirmation came just days after the Senate voted 53-47 to advance her nomination from the scrutiny of the Senate Judiciary Committee. All Democrats voted in favor of approving Jackson’s nomination, along with Senators Susan Collins (R-ME), Lisa Murkowski (R-AK), and Mitt Romney (R-UT).

President Biden, who is scheduled to give a speech which in all probability no one will watch, issued a brief statement saying:

"Judge Jackson’s confirmation was a historic moment for our nation. We’ve taken another step toward making our highest court reflect the diversity of America. She will be an incredible Justice, and I was honored to share this moment with her."

Her elevation to the High Court will not change the present 6-3 conservative composition established under President Trump.

Jackson will begin her tenure on the bench after Breyer retires at the end of the 2021-2022 Supreme Court term this summer.

Why This Is Important

In all actuality, the composition will remain 5-1-3 in the conservatives’ favor given the fact that Chief Justice John Roberts almost always rules with the Progressive contingent on the bench. Nevertheless, conservatives and originalists will hold sway in a majority of the decisions coming out of the High Court.

For the record, an “originalist” is a jurist who, as Justice Gorsich wrote in a magazine article, comes from the school of thought that “seeks to conserve the meaning of the Constitution as it was written.”

Justice Amy Coney Barrett expanded on that idea in a symbiotic way during her confirmation hearings:

“...in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”

Currently, the US Supreme Court has five claimed originalists seated on the bench: Justices Thomas, Alito, Gorsich, Kavanaugh, and Barrett. Roberts, although staking claim to being an originalist, abdicated that label with his horrendous ruling on the Affordable Healthcare Act which found him legislating from the bench.

So, with the make-up of the High Court maintaining the status quo in its balance, the elevation of Jackson – albeit notable because she is a Black woman, is of little governmental or constitutional consequence.

And while Jackson’s refusal to answer simple questions – chief among them the definition of a woman and what her position is on the existence of Natural Rights – is disturbing, her perceived legal activism is no more inappropriate for the court’s mission than was that of Ruth Bader Ginsburg (an ACLU attorney before her time on the bench) or that of Elena Kagen or Sonia Sotomayor.

To that end, anyone who understands the politics of dancing in Washington, DC can almost excuse Jackson for not answering the two critical questions posed, given the media’s propensity to turn jackal in their interpretation of a target subject’s words.

More important to the discerning eye was Jackson’s comment on originalism. During her nomination hearings before the Senate Judiciary Committee – when queried about originalism, she said:

“I believe that the Constitution is fixed in its meaning...I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.”

Of course, her stance should have been juxtaposed to her record of decisions – something the Senate Judiciary Committee should have been examining in open questioning rather than some of the showboating that took place – but if in fact, her statement is heartfelt her elevation to the supreme court could end up being quite the surprise.

Case in point.

In the 1952 ruling in Brown v. Board of Education, the case hinged on the question of whether the equal protection clause of the 14th Amendment made racial separation inherently unequal.

As Stephanie Barclay wrote in a June 2021 article in the Desert News:

“Chief Justice Fred M. Vinson began the conference by saying that he did not think the court would put an end to segregation. He said he was worried about the consequences for the country if a judicial decision mandated an immediate end to segregation. The Southern states might abolish their entire school systems...
“Besides the chief justice, there were three other sitting justices on the court who had experience with segregation: Stanley Reed from Kentucky, Tom Clark from segregated Dallas, and Hugo Black, a former Ku Klux Klan member from the Deep South. In this December 1952 conference, none of these Southern justices were willing to hold segregation unconstitutional. None, except for Black.
“Black agreed with Vinson about the reality of an inevitable and overwhelming Southern backlash to a desegregation ruling from the court. He knew that the consequences would likely include violent riots and ruined political careers.
“Yet despite this outcome clashing with what one might have expected of Black’s personal politics...Black [emerged] as ‘the strongest internal voice on the Supreme Court’ for ending ‘separate but equal’ racial segregation...
“Black was convinced that ‘the original meaning of the 14th Amendment and its two Reconstruction-era companions,’ the 13th and 15th amendments, required ending this discriminatory regime...the purpose of segregation to subordinate African Americans, and thus perpetuate a racial caste. This was in direct violation of the original meaning of the Constitution, and Black believed the court had no choice but to say so.”

Black, a former Ku Klux Klan member – ignoring his own documented personal biases and bigotry, believed a US Supreme Court Justice's duty, as a guardian of the US Constitution and the Bill of Rights, was to give purposeful effect to the original meaning of the Constitution’s text – as it was understood at the time of its adoption – without regard to consequence. Fidelity to that constitutional meaning, Black illustrated in his ruling, had to be elevated above shifting partisan politics and fluid policy preferences.

So, the Senate Judiciary Committee – as well as the whole of the US Senate for its rubber-stamping of the committee’s findings, abdicated its responsibility to the American people and the US Constitution and Bill of Rights for not exploring a solid understanding of Jackson’s belief on her claim to originalism, testing her words so that they would expose her true beliefs.

While I welcome Jackson’s originalist declaration I cannot invest in her words. I hold out hope that they were truthful, but I cannot invest in her claim until she proves her fidelity to the Constitution and Bill of Rights in an originalist manner.

To invest in Jackson’s claim solely on her word would be to make the same egregious mistake conservatives made with John Roberts.

One can always hope for the best, but we should always be prepared for the worst until proven otherwise. That said, Jackson’s elevation doesn’t change the balance on the High Court. It’s a media win for the far Left...and little more.

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