Jeffrey Toobin is CNN’s Chief Legal Analyst and author of The Nine and The Oath. The opinions expressed in this comment are his own. View more opinions on CNN.
(CNN)Judge Ketanji Brown Jackson is likely to be confirmed as a US Supreme Court justice, but her confirmation hearing shows conservatives winning the ideological war over the Constitution.
Jackson has preferred to refer to her approach to interpreting the Constitution as “methodology” rather than “philosophy,” but the gist of the two terms is similar. Jackson’s description of her approach is consistent with how conservatives have attempted to define the judicial role for a generation or two.
She has spoken of the “limited” role of the judiciary and her desire “to stay [her] Lane” as a judge and not as a legislator. Jackson went on to say that she always begins her analysis of the Constitution and the statutes with the “text.” ” a method of interpretation based on the idea that the meaning of the constitution must be seen in the light of changing conditions in society at large.
To those unfamiliar with the history of constitutional debates, these terms may seem uncontroversial, even generic. But they come with a lot of baggage. Conservatives have accused Liberal judges over the years of being “activists” who “legislate from the bench”. The true role of the judge, according to many conservatives, is to submit to the democratically elected branches of government.
Republican Senator John Cornyn of Texas made this point clear when he reviewed the Supreme Court’s Obergefell v. Hodges criticized the requirement for all 50 states to legalize same-sex marriages. Cornyn pointed out that lawmakers in some states have voted to allow same-sex marriages and in other states have banned such marriages.
According to Cornyn, the whole issue of same-sex marriage should be left to politicians, not judges.
Jackson didn’t take the bait to comment on that particular issue, but she did express sympathy for the approach Cornyn advocated. This is what is generally meant by a “restricted” view of the judicial role and of judges “keeping in line”.
Of course, that doesn’t mean Jackson doesn’t approve of the outcome of the Obergefell case. In fact, it seems extremely unlikely that she does. But Jackson’s statement about the limited role of the judiciary shows how conservatives have won this rhetorical battle.
It’s not clear that Jackson’s embrace of conservative language is anything more than rhetorical. Given her record and background, it is likely she will vote like the other two Liberals on the court, Sonia Sotomayor and Elena Kagan. Also, Jackson’s use of that type of language in her confirmation hearing will not earn her many Republican confirmation votes. But language is important, and the way we talk about the Constitution often determines what the Constitution means.
Even more extraordinary was Jackson’s statement about “originalism”. This approach, best known by Justices Antonin Scalia and Clarence Thomas, holds that the terms of the Constitution should be interpreted as they were understood at the time of ratification – in the 18th century for the text of the Constitution and in the 19th Century for the Fourteenth Amendment.
Jackson presented himself as an originalist. She said in response to a question from Republican Senator Mike Lee of Utah: she believes As a judge, you are “bound by the text and what it means to those who wrote it”. This is straight out of the originalist playbook.
The problem, however, is that it is difficult to take such an approach literally. For example, by the time the Fourteenth Amendment was passed in 1868, it was clear that separate public schools were permitted; in fact, they were practically universal. But since Brown v. Board of Education in 1954, the Supreme Court has held that the Fourteenth Amendment prohibits segregated public schools. No one seriously questions that decision today, but it is clearly a non-originalist decision.
While Jackson clearly embraces Brown, her rhetoric shows just how much the originalists won the rhetorical battle.
It is highly debatable whether we as a society should be bound not just by words written hundreds of years ago, but by the worldviews of the people who wrote those words. The world has changed in myriad ways; that should also be our understanding of the constitution. This is not the same as saying that judges and magistrates can find anything and everything in their interpretation of the Constitution.
As Jackson said in response to Democratic Sen. Amy Klobuchar’s question, it was impossible to know what the framers thought about someone’s cell phone being searched or the police using GPS to follow a suspect.
Of course, Jackson said her analysis would begin with the principles established by the framers, but it is inevitable and appropriate that we think about the framers’ words in a modern way.
Yet this sort of speech is almost taboo, even from a candidate for Democratic President. The Constitution will always be a living document, whether we recognize it or not, but the Conservatives have won a major victory by making it difficult to say so.
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