Surprising Importance Of Ketanji Brown Jackson
[Original Source: What The Hell Is Progressive Originalism? episode of Legalese Podcast]
Should Constitutional Originalists welcome the presence of the Junior Associate Justice Ketanji Brown Jackson on the Court? Many people will probably be left shaking their heads as I answer the question with an emphatic “yeah, maybe…” But hear me out. Because I contend, if you are a truly principled originalist you should see Ketanji Brown Jackson’s seat on the Court as a good thing. Not a great thing… but a good thing. Because the important difference between Jackson and her predecessor, Justice Stephen Breyer, is that Breyer was a purposivist, and living constitutionalist.
Similarly, the other liberal justices on the court, Justice Sonia Sotomayor and Justice Elena Kagan are also purposivists and living constitutionalists. Which means their decisions are always going to come down to revising the meaning of the constitution to serve their purpose and reach the policy outcomes they believe to be ideal. Whereas a progressive originalist does, at least theoretically, agree with the Originalist conviction that it is emphatically the duty of the Judiciary to say what the law is, and not what it should be.
Jackson may often reach the same conclusion as Kagan and Sotomayor, but on some occasions she will find herself in agreement with the so-called conservative originalist Justices in a way that Justice Breyer never did, and Justices Kagan and Sotomayor never will.
The Supreme Court’s Dynamic Duo
This is why last term on a number of occasions we found Neil Gorsuch (one of the Court’s truly principled Originalists) coming together with Jackson quite a bit. Especially in cases that involved the government claiming for itself some new, more expansive power, without any new statutory authority upon which to base that claim. Gorsuch and Jackson seem to be especially skeptical of such claims, which is really the most important issue on which we could hope the Court would take a definitive and defiant stand.
We saw this in Tyler v Hennepin County.1 This is the case that found home equity theft to be an unconstitutional taking under the takings clause2. The Court’s unanimous decision in that case didn’t clarify how that injury should be redressed and they didn’t speak to the second question presented, which asked if home equity theft was unconstitutional under the eighth amendment’s excessive fines clause. This vagueness was likely due to the fact that home equity theft cases tend to split along conservative/liberal lines, with conservatives siding with the homeowner and property rights and with liberal justices siding with the government. I believe a vague ruling was the best one Chief Justice Roberts could get unanimous agreement on.
But Gorsuch would pen a concurrence, joined only by Justice Jackson pointing out that the facts of the case strongly suggest it would have been unconstitutional under the excessive fines clause, had the Court addressed that issue. Which will be a persuasive precedent now that the case has been remanded to the seventh circuit to decide how Tyler’s case should be redressed, and will hold sway in any similar future cases where this constitutional question is one the Courts are being asked to take judicial notice of.
In Polselli v. Internal Revenue Service3, The Court would determine whether the IRS, pursuant to powers granted in §7609 of the Internal Revenue Code4 is entitled to issue third-party summonses, without notice, for bank account records in which the taxpayer targeted by the summons does not have a legal interest. The Court would find §7609 grants the IRS power to issue such a summons.
But Justice Jackson wrote separately joined by Justice Gorsuch, clarifying their ability to issue ‘no notice’ summons is a limited authority and that such notices are important because it allows the target of the summons to exercise procedural protection, especially their ability to file a motion to quash. Take this away and you are limiting a taxpayer’s ability to stop the IRS from obtaining third party records necessarily infringing the rights of taxpayers to proper notice and due process.
In Bittner v United States5, a case where the Court reined in federal fines for taxpayers who fail to report foreign bank accounts Justice Gorsuch authored a very typical Justice Gorsuch opinion in cases that deal with criminal justice issues or administrative state issues, and this case had both. Which is to say, he gave a very narrow textualist reading of the Banking Secrecy Act6 that severely limited the power of the administrative state, and to give strong protections to criminal defendants under that act.
While Chief Justice Roberts, Justice Kavanaugh and Justice Alito joined Gorsuch’s majority decision in part, the only person who joined the opinion in full was none other than Justice Jackson, who was the only member of the Court to join part three of his majority opinion. Here Gorsuch noted that under the rule of lenity, “statutes imposing penalties are to be ‘construed strictly’ against the government and in favor of individuals.”7
The Rule Of Lenity 8 is a principle of criminal statutory interpretation that requires that when a law is unclear or ambiguous, a court must apply the law in the manner that is most favorable to the defendant. This doctrine has a long history in common law, where it traditionally has great importance. Its role in modern jurisprudence seems to be getting far less clear and less common and any decisive invocation of Lenity, such as we find in Bittner is to me, a very welcome occurrence.
This willingness to take principled stands with Justice Gorsuch is part of what I contend constitutes the surprising importance that Justice Jackson will likely have on the Court.
Let’s not forget, as I often point out, this Court does not consist of the 6-3 conservative majority people claim it does. It really is an even split 3-3-3 Court, with the principled conservative faction of Thomas, Gorsuch and Alito, the less principled, pseudo-conservative faction of Chief Justice Roberts and Justices Kavanaugh and Barrett. And the liberal faction of Justices Kagan, Sotomayor and Jackson.
Currently, we have Justices Amy Coney Barrett and Bret Kavanaugh, who are not really originalists, but who can be inclined to sometimes throw their support behind the actual Originalist faction, and you have the Progressive Originalist Ketanji Brown Jackson occasionally willing to side with the actual Originalist faction of the Court. That creates a situation in which it is much more likely that a split vote will result in a solid five vote majority along originalist lines. Which is something you never saw when Breyer was on the Court.
Usually compromise votes and split decisions the last few years had ended up coming out in favor of the middling pseudo-conservative faction of Roberts, Kavanaugh and Barrett, or the liberal faction of (then) Justices Breyer, Kagan and Sotomayor.
Casting The First Pwn
I realize that many people may well argue she was Biden’s appointee and Biden is awful. Which isn’t incorrect— but I would remind anyone saying that, you are doing the very same thing the left did with Justices Gorsuch, Kavanaugh and Barrett. Just completely writing them off as terrible people because they were appointed by Trump and Trump is awful.
But Trump supporters understood how stupid and pointless that criticism was when it was happening to their guy… But, as the Holy Bible says: “Let he whose party did not win cast the first Pwn.” So, if you want to cast judgements on someone using the same criteria you are free to do so. But just understand that you are merely adopting partisan talking points, which do not a strong argument make.
And some of you will be annoyed with me for other reasons, such as pointing out Justice Jackson wouldn’t define what a woman is at her confirmation hearing. Which as I pointed out in my Jackson confirmation video, New Hearings, Same Hypocrisy it was a stupid answer, however it was an even stupider question since that was a strictly partisan political talking point by Republicans to try and make her look foolish, even though that question has absolutely nothing to do with her qualifications, as a judge. And that by asking her that question, Senator Blackburn looked even more foolish then Jackson & by spending two days berating her for it, conservatives like Ted Cruz and Josh Hawley looked even more foolish than Senator Blackburn…
It’s just pathetic to see people like Josh Hawley, Ted Cruz and Tom Cotton complain about conservative appointees to federal courts always getting Borked during their confirmation hearings—
A tactic I tend to define as follows:
…Only to have them turn around and waste everyone’s time Borking a democratic nominee; claiming that because Justice Jackson was once a public defender that means she is “rooting for murderers and criminals.” And yes, Ted Cruz really fucking said that. Rather than using their time to ask meaningful and substantive questions that might actually be helpful in determining whether or not she is a qualified candidate.
There are plenty of reasonable criticisms of Ketanji Brown Jackson, even if most of her opponents are chronically incapable of identifying them— But I would contend that her replacement of Stephen Breyer is a net good for the Court.
I would further argue that any other candidate we would have gotten from Joe Biden would have been either a purposivist or living constitutionalist; therefore, ending up with the progressive originalist we got was the best outcome we could have hoped for.
Cartago Delenda Est