Supreme Court confirmation hearings have become a mostly pointless exercise, characterized by bloviating senators asking rambling and frequently incoherent questions while the squirming nominee dutifully recites case law and tries to avoid revealing any of his or her own legal views.
But every now and again the judicial confirmation process does shed a little light on what a justice-to-be actually thinks. One such moment may have occurred in the Senate Judiciary Committee on Tuesday when Sen. Ben Sasse (R–Neb.) asked Ketanji Brown Jackson to elaborate on what she has called her “judicial methodology.”
“Earlier today you said that you ‘do not believe there is a living Constitution’ and you also said that you are constrained to interpret the text and that, I think you said, sometimes that’s enough to resolve the issue,” Sasse observed. “So I think I’ve heard you pay partial tribute to the judicial philosophy of originalism.”
Jackson’s response did not exactly disavow Sasse of that understanding. “I believe that the Constitution is fixed in its meaning,” Jackson said. “I believe that it is appropriate to look at the original intent, original public meaning of the words when one is trying to assess [a constitutional provision] because, again, that is a limitation on my authority to import my own policy views. But there are times,” she continued, “when the meaning—unreasonable searches and seizures, due process, looking at those words are not enough to tell you what they actually mean. You look at them in the context of history, you look at the structure of the Constitution, you look at the circumstances that you are dealing with in comparison to what those words meant at the time that they were adopted, and you look at precedents that are related to this topic.”
Those words came as a pleasant surprise to many originalists. “The description of originalist methodology given by [Jackson] is as good or better than a *Republican* nominee would have given until the past few years,” tweeted Georgetown law professor Randy Barnett, a leading originalist theorist and scholar. “She’s done more than ‘nod’ at Originalism per Senator Sasse. She’s claimed much of it as a part of her own stated methodology. I can’t say what it portends for the future, but she didn’t need to do this to get confirmed.”
Libertarian-minded originalists may also take heart in Jackson’s comments during an exchange with Sen. John Cornyn (R–Texas), who complained to her about the Supreme Court thwarting the will of the majority when it invalidated certain democratically enacted state regulations. “Well, senator,” Jackson calmly and correctly told him, “that is the nature of a right. When there is a right, it means that there are limitations on regulation.”