After a week in which Republican Senate Judiciary Committee members Ted Cruz, Lindsey Graham, Josh Hawley, and others played to their QAnon-conspiracy-theory-believing base by outrageously insinuating that Judge Ketanji Brown Jackson has a soft spot in her heart for pedophiles, it was almost refreshing to hear Ben Sasse announce that he would vote against her confirmation to a seat on the Supreme Court because of a disagreement over judicial philosophy. “Judge Jackson has impeccable credentials and a deep knowledge of the law,” the Nebraska senator acknowledged, “but at every turn this week she not only refused to claim originalism as her judicial philosophy, she refused to claim any judicial philosophy at all.”
Although Senator Sasse deserves a few points for not descending into the muck with his Republican colleagues, that’s a very low bar. Moreover, the record contradicts his assertions.
Without endorsing the phrase “judicial philosophy,” Judge Jackson clearly explained what hers is, and it’s quite friendly to originalism. The real problem for Senator Sasse is that the only remotely defensible version of originalism leaves judges and justices a great deal of room to make value judgments, and his values differ from those of Judge Jackson or any jurist a Democratic president might nominate, no matter how impeccably credentialed or deeply knowledgeable.
What is a Judicial Philosophy and Does it Matter?
Senators’ questions during Supreme Court confirmation hearings often focus on judicial philosophy because nominees typically refuse to talk about what really interests the senators and their constituents—how they will likely vote in important cases on contentious issues like abortion, affirmative action, capital punishment, church-state separation, gun control, LGBTQ+ rights, presidential power, voting rights, and more. Nominees deploy what then-Professor Elena Kagan called a “pincer movement,” declining to answer specific questions because doing so supposedly “might forecast a vote and thus contravene the norm of judicial impartiality,” but also refusing to answer general questions because judges deal in concrete cases, not hypotheticals or abstractions. Although now-Justice Kagan wrote those words in 1995 in reference to the confirmation hearing of the late Justice Ruth Bader Ginsburg, they aptly describe the performance of nearly every nominee of either party in the last several decades.
Senators who inquire about a nominee’s judicial philosophy hope to thereby circumvent the pincer defenses. They insist that they are not seeking commitments on specific issues but simply trying to get a sense of how the nominee approaches the judicial task. Is the nominee an originalist who believes that the Constitution’s meaning was fixed at the time of adoption? Do they subscribe to textualism in statutory interpretation? Or does the nominee prefer the respective rival approaches of living Constitutionalism and what is sometimes called purposivism in statutory interpretation?
The senators who inquire about judicial philosophy believe that the dichotomies of originalism/living-Constitutionalism and textualism/purposivism are a kind of secret code for the conservative/liberal dichotomy. And that was roughly accurate through the mid-1980s. In 1976, conservative Justice William Rehnquist wrote an article titled The Notion of a Living Constitution, in which he complained that under the guise of living Constitutionalism, “nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so.” That criticism laid the groundwork for the conservative embrace of originalism, which Rehnquist’s longtime sparring partner, liberal Justice William Brennan, would critique in a 1985 speech as “arrogance cloaked as humility.”
But something happened between the Reagan and Biden administrations. Even as originalists decried constitutional evolution, originalism itself evolved. Rehnquist and his contemporaries urged adherence to the “intent of the framers.” However, critics raised pointed questions about original intent. Why should the subjective intentions of the framers (or ratifiers) matter, when they enacted only the text? How can we, centuries later, discern and aggregate the intentions of people who disagreed among themselves about key matters and did not anticipate our circumstances? In response to these and other concerns, originalists shifted from focusing on the framers’ and ratifiers’ intentions to the constitutional text’s original public meaning.
Yet on the questions that matter most, the original public meaning of the constitutional text is too abstract to nail down a particular result. Rehnquist himself acknowledged as much in 1976:
The framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live. Those who framed, adopted, and ratified the Civil War amendments to the Constitution likewise used what have been aptly called “majestic generalities” in composing the fourteenth amendment.
The latitude to apply the highly under-determinate original meaning of the Constitution to new contexts provides both conservative and liberal jurists ample room for their values to fill in the gaps. Accordingly, in recent years, liberals have mostly abandoned talk of a living Constitution, as they recognize that Originalism 2.0 need not have any particular ideological valence; it is largely an empty vessel.
Meanwhile, one sees a similar convergence in statutory interpretation. In a colloquy at Harvard in 2015, Justice Kagan famously declared that “we’re all textualists now,” by which she most certainly did not mean that she no longer thought it important to effectuate Congress’s purposes in construing statutes. Rather, as Professor Jonathan Molot had observed almost a decade earlier, in practice there was no longer any meaningful distinction between textualism and its supposed rival purposivism.
To be sure, Republican senators apparently still believe that originalism and textualism imply judicial restraint and conservative outcomes, grilling Democratic nominees they suspect will use living Constitutionalism and purposivism to legislate liberal values from the bench. For example, in questioning Judge Jackson last week, Texas Senator John Cornyn repeatedly referred to the right to same-sex marriage, which the Supreme Court recognized in Obergefell v. Hodges in 2015, as “not in the Constitution” and a product of the Court’s “edict.” Insofar as Senator Cornyn was invoking original intent, he made a fair point. Surely, the framers and ratifiers of the Fourteenth Amendment did not intend it to require states to recognize same-sex marriage.
Yet that observation hardly does the work that Cornyn thought it does. For one thing, Cornyn’s statements imply that there is no constitutional protection for any marriages, including between a man and a woman—despite decades of case law to the contrary.
For another thing, Cornyn is out of step with the modern approach to text. The Congress that enacted the 1964 Civil Rights Act’s prohibition on workplace sex discrimination did not thereby intend it to forbid discrimination based on sexual orientation and gender identity. However, that did not stop the Supreme Court, in an opinion authored by Trump appointee Justice Neil Gorsuch and joined by Bush II appointee Chief Justice John Roberts, from holding in 2020 in Bostock v. Clayton County that “the ordinary public meaning of the statute’s language at the time of the law’s adoption” nonetheless carried that implication.
In response to the Bostock ruling, Senator Hawley lamented that the modifications made to originalism and textualism to make them plausible also turned them into tools that no longer ensure ideologically conservative results, going so far as to call the Bostock case “the end of the conservative legal movement.” He was right but probably not in the way he meant. Bostock and numerous other cases reveal that although a Supreme Court with a generally very conservative majority will typically reach ideologically conservative results, that is simply a reflection of the majority Justices’ conservative values; there is nothing distinctly legal about how they get there.
Judge Jackson’s Judicial Philosophy
If textualism and originalism are indeed harmless empty vessels, one might wonder why Judge Jackson did not simply embrace them. The answer is that she did. Senator Sasse’s characterization of her testimony is simply false.
Judge Jackson expressly disavowed living Constitutionalism in roughly the same way that Rehnquist did nearly a half century earlier. “I do not believe that there is a living Constitution in the sense that it’s changing and it’s infused with my own policy perspective or the policy perspective of the day,” Jackson stated. Moreover, she expressly endorsed originalism as it has been espoused by conservatives in recent decades. She said that “when you are interpreting the Constitution, you’re looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority,” adding “I apply that constraint.”
What about Senator Sasse’s complaint that Judge Jackson espoused no judicial philosophy? It is true that when asked about philosophy specifically, she expressed reluctance to announce an “overarching theory of the law,” instead describing her approach of beginning with the facts, turning to the controlling legal texts and precedents, and so forth. Like Senator Sasse, Senate Minority Leader Mitch McConnell complained that this statement was not a “judicial philosophy,” but in light of the quotations in the prior paragraph, it should be clear that Judge Jackson’s actual judicial philosophy fits within the mold conservatives have shaped in recent decades.
Would it have been better if Judge Jackson had labeled her methodology a philosophy? Perhaps, but she is hardly unique in disliking the term judicial philosophy, which may come across as unduly abstract or even pretentious.
Consider that the transcript of the confirmation hearing of Justice Gorsuch contains the term “philosophy” in dozens of places but that Gorsuch himself used it only twice, and then to suggest—just as Judge Jackson did last week—that a judge does not need a fancy one. On two occasions Gorsuch said, “I am not a philosopher king.” He also endorsed the approach of the late Justice Byron White, who, according to Gorsuch, described his own judicial philosophy this way: “I decide cases.” During his hearing, Gorsuch (despite holding a doctorate in legal philosophy from Oxford) was thus openly hostile to the concept of judicial philosophy. Needless to say, none of the Republican senators now protesting Judge Jackson’s supposed lack of a judicial philosophy complained or even seemed to notice the exact same feature of then-Judge Gorsuch’s testimony.
There is really nothing to the emerging Republican talking point that Judge Jackson lacks a judicial philosophy and is thus not an originalist or textualist. She has one, and it is the same one that all of the Justices now favor: original public meaning of the enacted text, which is typically very under-determinate with respect to the controversial questions that come before the Court and thus ensures that other considerations, including the Justices’ different values, will account for most of the disagreement they express.
The Republican senators’ real gripe is that as the nominee of a Democratic president, Judge Jackson’s values are more liberal than their own. It would have saved everyone a lot of time and trouble if they had simply admitted as much at the outset.