Ketanji Brown Jackson and the Future of Progressive Originalism

The liberal justice seems ready to fight legal conservatives on their own ground.

Many conservative legal activists today purport to be constitutional originalists, meaning they say they follow the original meaning of the Constitution at the time of its adoption. Yet some of those same activists also embrace dodgy legal theories that, when examined in detail, prove to be entirely at odds with constitutional text and history. The Constitution, properly interpreted, does not always support conservative policy preferences.

Yet many progressive legal activists today are quite contemptuous of originalism, dismissing it as a "dangerous fallacy." But if legal progressives keep on rejecting and denouncing originalism, how will they ever be in a position to properly challenge the bogus originalist arguments of conservatives? In other words, why not defeat your enemy on the actual field of battle, rather than just booing from the sidelines?

University of Virginia law professor Lawrence Solum, a leading scholar and advocate of originalism, thinks the addition of Ketanji Brown Jackson to the U.S. Supreme Court has the potential to kickstart a renaissance of progressive originalism. "Justice Jackson's originalism," Solum writes, "is a direct and forceful response to the conservative justices' increasing reliance on a selective mix of history, tradition, and precedent to undermine the original meaning of the Constitution's text, while claiming to be 'originalists.'"

During her confirmation hearings earlier this year before the Senate Judiciary Committee, Jackson did sound like she was ready to fight the fair-weather conservative originalists on their own ground. "I believe that the Constitution is fixed in its meaning," Jackson told Sen. Ben Sasse (R–Neb.). "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." Sasse said that he was pleased to hear her "pay partial tribute to the judicial philosophy of originalism."

It would certainly be nice these days to have a more forceful originalist voice—progressive or otherwise—in the Supreme Court's criminal justice cases, where the current majority of Republican appointees often pay too little heed to constitutional text and history. A few years ago, the late Justice Antonin Scalia often provided that voice. In one Fourth Amendment case, for example, Scalia lambasted the majority opinion of Justice Clarence Thomas as "a freedom-destroying cocktail" that "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."

Jackson could do American law some real good by adding her originalist voice to the mix in such cases.

Comments

[Spiritus Mundi]

She does not know the meaning of the word 'woman' it is dubious she knows the meaning of any of the words in the Constititution.

[Yatusabes]

She did this to herself and that is all that matters.

Zero credibility.

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[Trutherator]

And the author in this hagiography doth praise too much.
She was pouring anesthetic on the Republicans, giving them ammo to defend themselves later when she starts showing her fangs and sheds her sheepskin.
"Don't know what a woman is" is a dog-whistle for all those donkey-mutts in Congress to let them know she would never overturn Roe v Wade or put the nix on the new Doublespeak dictionary.

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[tzx4]

So I guess we get to hear this line repeated over and over again for however, many years. It makes for a great meme, but it's taken completely out of context, in the same way, Clintons basket of deplorable's comment was taken out of context. But just as long as it's an affective linguistics smear against the opposition, that's just fine with all the right wing freak jobs.

[DesigNate]

I’d love to see the context for both.

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[Liberty Lover]

The context is if you are not a liberal you are stupid degenerate. Not that hard to figure out.

[R Mac]

Cite?

[Cloudbuster]

I've heard the context. The out-of-context interpretation corresponds with the in-context interpretation. It doesn't make her look any better.

[Ted AKA Teddy Salad, CIA/US Ballet Force]

She’s totally unqualified to be a judge at any level. Let alone SCOTUS.

[Eeyore]

Progressivism is inherently immoral. It presumes that you know better what someone else should do and that you have the moral authority to force them to do it. It is a self centered authoritarianism.

[Jefferson's Ghost]

"Progressivism is inherently immoral."

Interesting. I would define 14th amendment as "progressive" since it expanded constitutionally-protected rights to whole new classes of people. Maybe we need to find a new moniker in place of "progressive." A couple examples come to mind, but I don't use that kind of language.

[Bill Dalasio]

I would define 14th amendment as “progressive” since it expanded constitutionally-protected rights to whole new classes of people.

And completely subordinated the states to the federal government in terms of constitutional law.

[Jefferson's Ghost]

"And completely subordinated the states to the federal government in terms of constitutional law."

So do you think that the rights of the "Bill of Rights" being something the States have to respect is a bad thing? (I admit the "transfer" isn't perfect, but overall, I consider it a big "+")

[The Team Struggling]

It would be better if the 14th explicitly said that rather than the inconsistent piecemeal approach of SCOTUS's incorporation doctrine.

[Jefferson's Ghost]

On that we agree entirely!

[Social Justice is neither]

Put to you another way do you find self determination a bad thing given the option to leave bad locations? This is what you defend, the one size fits all primacy of the fed's in everything.

[Jefferson's Ghost]

"This is what you defend, the one size fits all primacy of the fed’s in everything."

Not at all.

I defend the supremacy of the Constitution over the State law, where there is a conflict. And, I am the first to admit that the expansion of the federal government, along with a handful of really terrible SCOTUS decisions, perhaps best-illustrated by inane (insane?) definitions of the commerce clause, has allowed the feds to become well, what it is, which is a sledgehammer.

[Nardz]

Progressivism is 100% statist, centrally planned social engineering implemented via force with the purpose of creating "New" Man. It is often directly opposed to nature (as it is today, though not entirely when it originated).

14th amendment doesn't do that.

[Jefferson's Ghost]

'"Progressivism is 100% statist, centrally planned social engineering implemented via force with the purpose of creating “New” Man."'

I agree with you, at least in the aggregate, which is why I wonder how we let a group of people linguistically steal the term "progressive." The US Constitution is, arguably, the most "progressive" document in human history, in guaranteeing basic human rights. The "Big Brotherism" inherent in too many of today's "progressive" policies is, in fact, often "regressive."

Language is important.

[Eeyore]

Language is tough. Through the magic of semantics, if you can change a word you can change an idea and subvert it.

The constitution is mostly libertarian.

[Jefferson's Ghost]

"The constitution is mostly libertarian."

Yep.

Even "Anarchistic." Not in the "lawless" fashion, but in protecting the rights of people to live their own lives in the manner they choose with minimal government interference. But then the government got big. Then it got huge. Now, it's sort of a all-consuming behemoth. And it consumes more with every passing day.

[epsilon given]

I would add that meanings of words like "progressivism" and "conservatism" vary according to the people using them, and their time and place.

A very good test to see what these words mean in a given context, though, is asking yourself "what is this person trying to progress towards?" or "what is this person trying to conserve?"

The word "progressivism" when applied to the 14th Amendment is meaningless -- there wasn't a "Progressive" movement pushing for its passage -- instead, the 14th Amendment was an attempt by the North, in the era of Reconstruction, to try to eliminate slavery, and Southern attempts to preserve it in all but name. Perhaps it "progresses" towards more freedom -- but that isn't how we look at that era of history, even though forces were pushing us towards more freedom.

In contrast, Wilsonian "Progressivism" isn't about progressing towards freedom. It's about progressing towards Statist power over the individual. Considering that Americans generally don't like this, Americans are right to suggest that "Progressivism is inherently immoral."

Similar analysis can be made about the word "conservatism". What is it that is trying to be conserved? In Europe, it's generally things like monarchy. in the United States, though, it's generally people trying to preserve morality (which can be a touchy subject, depending on what you consider moral) and liberty (because in America, where liberty is a founding principle, and there are people like the Progressives trying to destroy it, any attempt to preserve liberty is necessarily going to be "conservative").

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[Super Scary]

“which is why I wonder how we let a group of people linguistically steal the term “progressive.”

It's a fun game. If you name yourself something good, only bad people will be against you. You don’t like progressives? Why do you hate progress?! Progress is good!

See also: Anti-fa. They are against fascism! So if you don’t like them, you must be a fascist!

[Jefferson's Ghost]

"It’s a fun game. If you name yourself something good, only bad people will be against you. You don’t like progressives? Why do you hate progress?! Progress is good!"

It is sort of fun, I admit.

I get a chuckle out of watching people twist themselves into linguistic knots trying to paint -- whatever be their cause -- as some kind of "progress." It was especially fun at the University. I laughed my way through more than one graduate seminar.

[Utkonos]

Nothing say “anti-fascist “ like Ernst Röhm tactics. It is known.

[Trutherator]

I call them regressives who yearn for feudalism again. Bossman tell us what do do...

[Nardz]

Correct

[kampbell]

“ Progressive Originalism”…sounds like an oxymoron to me…

[retiredfire]

Because it is.

[InsaneTrollLogic]

Progressive originalism. I couldn’t define "ironic oxymoron" better if I tried.

[mad.casual]

Yup. The motivation of liberals to just cram together adjectivenouns without regard for any sort of sense that it may (not) make feels somewhere between very Socialist and very Nationalist Socialist.

[Quo Usque Tandem]

+

[Inquisitive Squirrel]

Nail on the head.

[JimboJr]

Came here to say this^

[Kungpowderfinger]

Progressive originalism. I couldn’t define “ironic oxymoron” better if I tried.

Try “Left Libertarianism”.

[Diane Reynolds (Paul.)]

I believe that the Constitution is fixed in its meaning," Jackson told Sen. Ben Sasse (R–Neb.). "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." Sasse said that he was pleased to hear her "pay partial tribute to the judicial philosophy of originalism."

She can't provide a fixed meaning to what a woman is, and I'm supposed to trust her interpreted 'fixed meaning' of the Constitution?

And shit howdy is this article short on details. Might, could, fight for, stands by, progressive originalism (which is entirely undefined in the article).

I know what originalism is... whether a justice who claims to adheres to it or not is another topic, but I know what originalism is. I don't know what progressive originalism is. So now I need to search elsewhere.

[Diane Reynolds (Paul.)]

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. . . . Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. . . . By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.

Historical evidence suggests that the government’s duty to provide such protection was precisely what the framers of the Equal Protection Clause had in mind. In the aftermath of the Civil War, many newly freed slaves and Union sympathizers suffered from private acts of violence in the South — acts of violence that the former Confederate states would often fail to redress. Reports of the unpunished violence in the South outraged northerners, many of whom demanded a Congressional response. Congress responded by creating the Joint Committee on Reconstruction (the “Joint Committee”), which reported that in the South there were “acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish.” The local authorities’ failure to protect blacks and white Union sympathizers was not necessarily the result of discriminatory laws, but the failure of state officials to enforce “facially neutral laws . . . such as homicide laws when the victims were blacks or Union sympathizers.”

Ok, I'm getting a context here regarding slavery and equal protection. I wonder how this is going to be applied by Jackson to the modern era, and what cases specifically.

“Progressive originalism” sounds like an interesting project. If its goal is for certain rights liberals love to “simply be transplanted to a different home,” a clause that provides a better textual grounding, then at least it will focus more attention on the original intent and meaning of the Constitution. However, I’ll look forward to the day when Doug Kendall et al. file briefs arguing that we ought to get rid of the tiers of scrutiny and almost all the rest of our current equal protection analysis.

Okay... now we're getting somewhere.

“Progressive originalism” sounds like an interesting project. If its goal is for certain rights liberals love to “simply be transplanted to a different home,” a clause that provides a better textual grounding, then at least it will focus more attention on the original intent and meaning of the Constitution.

So... once again, "liberals" who are essentially inventing rights out of whole cloth can use the 14th amendment as a magnifying glass to "discover" all of these rights they couldn't justify not only last week, but 10 minutes after the 14th amendment was ratified... like abortion.

[MWAocdoc]

There is no Federal "right to abortion" unless it's one of hundreds or thousands of unenumerated rights "retained by the people" under the Tenth Amendment. An activist "conservative" Supreme Court will have no difficulty finding evidence that one cannot "retain" a right that they never had in the first place if it so chooses but that violates the original INTENT of the framers of the Constitution and the Bill of Rights in very obvious ways. However, having said that you do not now have and never did have a right to murder someone else. The devil is in the details of the definition of "murder." You clearly have a right to kill someone in self defense who is trying to kill you. If abortion is defined as justifiable homicide and not as murder, then you DO have a right to commit abortion and the conservative idiots who are sowing great destruction across America at the moment in the name of their idiotic religion are wrong.

[Jefferson's Ghost]

"There is no Federal “right to abortion” unless it’s one of hundreds or thousands of unenumerated rights “retained by the people” under the Tenth Amendment."

And that seems to be the crux of the problem. In the US, until the mid-1800's, when the AMA (guess what - a male-dominated organization) starting declaring that only doctors could determine when an abortion could be performed, abortions were widely available and pretty-much stigma-free. That had changed by the early 20th century. So, on which side is history?

[MWAocdoc]

The short answer is that it doesn't matter. It's a made-up excuse to do what the Justices want to do. The original intent of the Founders was to prevent laws that limit the liberty of the people unless there is substantial evidence that the law is necessary to protect the equal rights of other people. The only question here is abortion ALWAYS depriving a person of their equal right to life, or are there exceptions when the baby threatens the mother's life? It's not a simple question but it has nothing whatever to do with whether the right is "retained."

[JFree]

Inventing rights out of thin air is a really screwed up way of talking about expanding individual rights.

This isn't about expanding govt at the expense of individuals. Conservatives are not at all classical liberals when rights are interpreted as only the individual rights that existed in 1790 and only for those who had those rights in 1790

[Diane Reynolds (Paul.)]

Inventing rights out of thin air is a really screwed up way of talking about expanding individual rights.

Giving non-citizens free healthcare on the backs of local taxpayers is inventing rights out of thin air. You can call it a right all you want, but it ain't one. But sure, it "expanded individual rights".

[JFree]

Giving non-citizens free healthcare on the backs of local taxpayers is inventing rights out of thin air.

And huffing glue is not actually evidence that what you are asserting has anything to do with truth.

[Bubba Jones]

"shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War."

How is this different from what Clarence Thomas does?

Isn't he the poster child for relying on the 14th amendment instead of the 5th?

PROGRESSIVES HATE THAT.

[mad.casual]

I know what originalism is…

Take an overview: Your notion of originalism is plainly bogus, you conservative bigot.

[MWAocdoc]

There is a list of several different approaches to SCOTUS rulings including textualism, originalism, strict constructionism, and the leftie "living" constitution among several others that are not easy to define. Having labeled something "originalism" doesn't mean you can avoid performing due diligence and supporting your opinion logically and factually.

[Diane Reynolds (Paul.)]

I have to assume that the modifying word "progressive" added to originalism means something, and means something distinct from "originalism". I'm not denying it exists, but this article literally gave no hint as to what it meant.

[SRG]

When it was assumed that originalism was conservative, there was no need to qualify - just as when the only form of democracy was direct democracy there was no need to qualify the term either.

But as progressive originalism now emerges - just as "indirect/representative" democracy emerged - qualifying the term by con or prog become appropriate.

Conservative originalism is originalism that twists the text to produce results that conservatives like. Progressive originalism is hence...

Here's an example not at present being tested: John Doe warrants. They are clearly counter to any reasonable originalist reading of 4A as well as the evident intent, and yet find me a conservative originalist who is opposed to them? AFAICT Alito is the biggest fan of all. If some of the justices decided that an arrest under a John Doe warrant was unconstitutional, that would assuredly be an example of progressive originalism.

[Diane Reynolds (Paul.)]

My point is not to get into a debate over which originalism is better, but to explore originalism vs "progressive originalism".

If you're looking to argue with me about which conservative justice ignored originalism in service of protecting wayward cops, you'll get no such argument from me.

[SRG]

No - my point is that as long as originalism was seen purely as conservative, "conservative originalism" would be redundant. Now that there is a genuine argument that there is such a thing as progressive originalism, it is not only not redundant to say "conservative originalism" but it becomes necessary to use the term to distinguish it. Hence - as with democracy - there is a genus, "originalism", and two species and as usual with binomial classifications referring to the genus alone doesn't tell you what species you're talking about.

[Ted AKA Teddy Salad, CIA/US Ballet Force]

Originality isn’t conservative. It’s merely correct.

[mad.casual]

I have to assume that the modifying word “progressive” added to originalism means something,

The *exact* same meaning as the "Social" in "Social Justice".

It's a fancy new name for living document that roots the original interpretation of The Constitution in Reconstruction (or anywhere between The Reconstruction and 1619).

It's a specific ambiguity to give Progressivism historical legitimacy.

Personally, I wonder how many of these articles that portray KBJ as a literal token Reason is going to publish before it really does start to offend even normies. She's an actual jurist with actual decisions under her belt, but we don't get that. Instead, we get the 'could maybe stand for [insert white, left coast political jargon here]'.

[AReasonablePerson]

This article offers no proof that Jackson has done anything other than pay lip service to the idea of originalism. Why not link a dissent she wrote that shows us what progressive originalism would look like in practice?

[SRG]

Well, the right pays lip service to the idea of originalism as well, though it's an easier lift, in general.

[epsilon given]

Yes, and I have seen Right-leaning commentators use the Justices' decisions and dissents to dissect originalism, where their favorite justices applied the ideas of originalism correctly, and where they have departed from their originalist ideals, and where they just don't make sense at all.

This kind of thing can make for interesting reading -- and there's no reason why it can't be applied to so-called "progressive originalism".

Incidentally, this article does a disservice to insist that originalism has no meaning because self-serving conservatives are sloppy in their originalist homework, rather than question whether such sloppiness really is originalist thought, and not hogwash that should be refuted with true originalism.

Similarly, this article does a disservice by refusing to show us how "progressive originalism" is different from "conservative originalism" -- because, ultimately, originalism is originalism, and when you bring text and history together, the question isn't which is more "originalist" -- the question is "how does all this gobbledygook help us come to understand the original meaning of the Constitution?"

And furthermore, I can't help but suspect that the author of this article is going to consider well-thought-out-and-researched "conservative originalism" to be gobbledygook because it reaches a conclusion they don't like, and gobbledygook "progressive originalism" to be well thought out and researched because it reaches a conclusion they do like.

[MWAocdoc]

While the jury is still out (so to speak) on KJB, originalism should be the main driving force behind all Supreme Court opinions and rulings. None of the other approaches to Supreme Court cases quite measures up either in theory or in practice. Social engineering and legislating from the bench are horrible and destructive and have left American justice in a very bad mess, but cherry-picking a few words from the original text in order to justify outrageous opinions out of context of the purpose of the Constitution and a limited government is almost as bad and worse in the sense of being more subtle and harder to detect the subterfuge. If originalism had been applied consistently by the Supreme Court - and more often instead of dodging their responsibility over the decades - ninety percent of the legislation passed by Congress and ALL of the new Federal Departments and regulatory agencies created since 1910 would never have been allowed.

[Bubba Jones]

Another way to say "originalism" is "rule of law."

[MWAocdoc]

I don't think it's that simple. Originalism focuses on the intent or the goal of the framers of the constitution and the bill of rights. Rule of law means that no people rule - they only do the best they can to interpret and apply the laws. If you believe in a "living breathing" law then the law keeps changing without warning. You only know you violated the law when the appeals court says so. The prosecutor only knows you violated the law when the appeals court interprets it that way. The intent of the framers was unequivocally to give each person the maximum possible liberty with only the laws necessary to protect each person's rights against everyone else's equal rights.

[NumaNumaPompilius]

In literally every other context, we just call it "reading"

[Dillinger]

now do not a biologist lolwtf

[BYODB]

Progressive ways of 'reading' the constitution preclude any notion of originalism writ large. Progressivism seeks to redefine what's already in the constitution, it has no interest in what's it's meant before and ignores all context to get to preferred outcomes without bothering with the amendment process.

I can't fathom how this is even a thing without drastically redefining well known words and political movements to mean whatever you want at this moment.

[MWAocdoc]

I believe the opinion in the article was meant only in the context of opposing "conservative" transgressions by the Court, not in the sense of progressives using cherry-picked words from the Constitution, taken out of context for the purpose of undermining the Constitution and our "natural" rights. Obviously the "progressives" have ignored the original intent of the framers in so many ways over so many decades that we should not trust them to interpret the Constitution at all any more. But if KBJ uses the original intent of the Constitution to oppose legislation from the bench by "conservatives," that would be a good thing in my opinion.

[BYODB]

Since they preface 'originalism' with 'progressivism' when it comes to this justice in particular, which might as well be an oxymoron, who knows.

Certainly the 'originalists' fuck things up sometimes, but given that 'progressives' have fucked up literally every aspect of everything even including that word in her resume at all is essentially disqualifying in my book.

If she doesn't want that label, and doesn't have anything in common with Progressives, why include it at all.

Either way, this person appears to have more of a resume to be on the SC over Kagan so...there is at least that I suppose. Damning with faint praise, perhaps, but it is what it is.

[Social Justice is neither]

If she cannot provide what a woman is then every word in the constitution is up for redefinition to any scale imaginable just to get to the desired end.

[JoeB]

Yep, that was her Aleppo moment. I've got no delusions about how she will rule.

[Jerryskids]

I believe "progressive originalism" is otherwise what we call "other ways of knowing". Who are we to believe that the founding of America wasn't in 1619 and based strictly on racism?

[JasonAZ]

Living, breathing document wasn't working for progressives, so they're re-marketing the idea with a new moniker.

Similar to how global warming is now climate change.

[SRG]

Similar to how global warming is now climate change.

Wrong-o. The terms were used somewhat interchangeably from the 70s, but Frank Luntz, the GOP consultant, recommended that Bush and the GOP use the term climate change exclusively, and this was duly done.

And then, due either to hypocrisy or ignorance, the denialist right used the changing of terms as evidence that the left were resorting to propaganda, etc. which is ironic, no?

[Sevo]

As opposed to lefty shits who use either term to pitch government control over the economy, lefty shit.
Regardless of what it is called, none of the catastrophists' predictions has been found accurate. Not a one.

[SRG]

The catastrophists, no, the alarmists, categorically yes.

[Ladyhawk]

Example please of how the alarmists have been "categorically" right? We have warmed about 1.1 degrees C in 170 years, something we cannot even notice except in the some areas of polar extremes. The CO2 levels have not yet been convincingly demonstrated to be the cause of any climatic phenomenon. Yes the climate is changing, yes humans can influence climate regionally, but we are already adapting and no one is acknowledging that.

[Ted AKA Teddy Salad, CIA/US Ballet Force]

AGW is bullshit propaganda used as a delivery system for socialist policies and justification for infringing upon American rights. Anyone who supports that is a traitor and should be dealt with as a traitor.

Like we used to do.

American rights > democrat lives

[JasonAZ]

"Jackson could do American law some real good by adding her originalist voice to the mix in such cases."

Sigh. Root's take here is rather naive, especially for a Libertarian. KBJ's track record indicates that she'll side with the government over individual rights, except where she'd like to side with favored preference groups. This should NOT be celebrated.

[Social Justice is neither]

Root is a progressive, his support for this dishonest and evil twat is perfectly predictalible precisely because she holds the positions you lament.

[JasonAZ]

"It would certainly be nice these days to have a more forceful originalist voice—progressive or otherwise—in the Supreme Court's criminal justice cases, where the current majority of Republican appointees often pay too little heed to constitutional text and history."

Wow. Just wow. Setting Roberts aside, it's clear that the Republican appointees often make an attempt to leverage an originalist position for their legal positions. Root finds one case where Scalia disagrees, and pretends this is the standard.

Compare that to the Democratic appointed justices, who open shit all over the original meaning of the Constitution! They don't even pretend to care. They're legal reasoning is all about feelings and social justice or common good, with lip service to the actual law; with very few exceptions.

Root, it's fluff articles like this that make the commentary question whether you and the other Reason Editors are actually Libertarians. Rule of Law is important to Libertarians and respect for the Constitution is respect for rule of law. The Republican justices may not be perfect, especially Roberts, but the Democratic justices are all trash from an individual liberty perspective.

[MWAocdoc]

You apparently did not read the whole article, in which the writer makes your points much more forcefully than you do. The point of the article was conditional: IF the "progressive" Justice uses original intent successfully to oppose "conservative" transgressions, then that would be a good thing! I, too, am skeptical that KBJ will do this or that it would be even partially successful, but the possibility makes me at least a little hopeful.

[JasonAZ]

Uh, I’m not sure we read the same article. I see a lot of words about how the Republican justices are “fair-weather conservative originalists”, but only 1 example is given. Root simply asserts X about Republican justices and substantiates this by 1 rando legal scholar; who also doesn’t give any examples.

Whereas, the articles gives no examples from KBJ’s legal record where she would actually be an originalist in any way.

[BYODB]

Is it worth her siding with the progressive wing just to stick it to those icky conservatives?

Some appear to think so, at any rate.

There is perhaps a case to be made there, but it necessarily means ceding the SC to 'living, breathing document' types to get there one might imagine. Elsewise, there would be no need to preface her beliefs with 'progressive'.

Just tacking extra qualifiers onto 'cancer' doesn't make the underlying cancer more palatable. If the alternative is pneumonia, perhaps that's the least-bad choice available.

[JoeB]

Sorry, but it's total puff. Root provides not one example of KJB's "originalism" in practice. He's a big fan, apparently.

[chemjeff radical individualist]

Jason stopped reading when the author said something mean about a conservative.

[R Mac]

Is that when you got an erection? And if so, can you even see it over your belly?

[Ted AKA Teddy Salad, CIA/US Ballet Force]

No, he gets an election (not that he can find it) when he watches the Disney Channel.

[MWAocdoc]

Another point and then I’m done: Overturning Roe v Wade was a very bad thing done for almost all the wrong reasons based on the excuse that Roe v Wade was a very bad decision in the first place. If the Court had ruled in Roe v Wade that laws against abortion violated the retained rights of the people under the Tenth Amendment, extended to the States by the Fourteenth Amendment, instead of legislating from the bench, then the more recent decision would have been much more obviously incorrect. Now we have a mess to clean up for all the wrong reasons.

[BYODB]

You have it exactly backwards.

The ruling in Roe V. Wade was originally legislating from the bench, so it's difficult to imagine how reversing that decision is somehow a worse example of legislating from the bench.

Reversing the decision, ironically to you perhaps, actually put it back where it belongs; that being the very states and people in question rather than the Federal Government.

[SRG]

It is possible to think something decided on incorrect grounds but the right outcome nonetheless arrived at. So should it be with Roe. The court could easily have said, the reasoning in Roe was wrong, but the right to abortion remains, per 9A/10A etc etc.

[Pear Satirical]

"It is possible to think something decided on incorrect grounds but the right outcome nonetheless arrived at."

Ah, the "means justifies the end" argument. Under that logic, you could justify the Supreme Court overturning an election and installing Trump as president since it was the "right outcome nonetheless."

Oh and I disagree that it was the right outcome, both because of moral objection to abortion and the (pardon the pun) miscarriage of law that Roe was.

[SRG]

Ah, the “means justifies the end” argument.

Perhaps I was less than clear. Try a less controversial example.
All humans have four limbs.
Socrates has four limbs.
Therefore Socrates is human.

Socrates was indeed human but the argument is incorrect. Correcting the argument does not mean Socrates is not human.

[R Mac]

That’s not how the USSC is supposed to work dumbfuck.

[SRG]

"That’s not how the USSC is supposed to work dumbfuck."

Fuckwit, that doesn't mean they don't work like that But it's bloody obvious except to acephalic clowns like yourself that it would have been perfectly possible for the Supremes to say that the ratio decidendi of Roe was wrong, and here's a much better one which retains the right to an abortion.

[Pear Satirical]

So here's a question, why didn't they? Why didn't the Supreme Court say that back when Roe was first decided?

[SRG]

Why didn’t the Supreme Court say that back when Roe was first decided?

A supreme court composed of the justices who decided Roe v Wade isn't going to say that, oops, it made a mistake in the rationale for the decision, obviously.

And later courts obviously didn't think it needed correcting because the consequences of retaining Roe as it stood seemed fine.

Of course, after the anti-freedom judges lied their way onto the court, things changed.

[Diane Reynolds (Paul.)]

It is possible to think something decided on incorrect grounds but the right outcome nonetheless arrived at. So should it be with Roe.

No, doing that causes the foundations of the decision to be shaky, and therefore will be overturned when it fails to maintain its constituency. Which is LITERALLY what happened with Roe. Roe had to maintain a constituency because it was a decision that was made on incorrect grounds, and everyone including RBG knew it.

When you decide something on the correct grounds, it becomes much less likely to overturn once your constituency dies or retires.

[BYODB]

Or, and here is the real fly in the ointment, you could pass it legislatively with an amendment which would put the issue to bed for at least a generation or two.

Since this is nowhere near the ‘vast majority’ they claim in terms of actual legislative agreement, it will not happen any time soon.

Thus returning the issue to the states was the best option available.

More local control over partisan issues like this is probably the best outcome possible, but those who want the FedGov to control every possible aspect of our lives will of course not think as such. Nor, of course, will the useful idiots who don’t know what to believe until they are told.

[SRG]

Returning some things to the states is a good idea, sure. But 14A was passed for a reason, as were the CRA and VRA.

[The New Number Two]

9A does not imply that abortion is one of the unenumerated rights, and 10A would indicate that it's a matter for the states to decide. How does that conclude with Roe?

[Social Justice is neither]

So the Dobbs is wrong because of things that didn't happen to set Roe in place? That's the retarded kind of nonsense I expect from progressives, facts are irrelevant if they can make shit up instead.

[Azathoth!!]

Jackson is not an originalist--of any stripe.

To suggest otherwise is to put one's own intelligence to the question.

[Naime Bond]

Pathetic. Comparing Jackson to Scalia as if their ideas and concepts of 'originalism' are indistinguishable or compatible. Scalia didn't lambaste Thomas and the case had nothing to do with 'originalism'. The case turned on facts applied to settled search and seizure law, NOT what the Constitution says about Search and Seizure. Scalia argued getting an annonymous tip about someone in a specific car, (including license plate) on a specific road, driving erratically AND then confirming the tip (car and location) is not reasonable cause to stop the car. Yet Scalia will allow a cop to search any area where a suspect can '...lunge reach and grab ...' a weapon e.g. a closed glove compartment, closed containers, jacket in the back seat, - find drugs and send someone off to jail for 10 to 20 years. His logic turns 'if you see something, say something' on its head. This was not one of Scalia's shining moments on the bench.

[Agammamon]

Root, you can't be a Progressive and an Originalist. The two things are in opposition.

[Agammamon]

Progressivism doesn't work without a 'living constitution' you can ignore.

[SRG]

You can, if you don't fall victim to the ahistorical idea that the FFs were conservative.

[Agammamon]

The purpose of the constitution is to define and limit government power.

Progressives do not want to have a government of limited and enumerated powers. They want an all powerful government that can give everyone a pony and punish their enemies.

Originalist is not compatible with Progressivism.

[SRG]

Then perhaps liberal originalism should be the term.

[The New Number Two]

The paradox of American conservatism: America's founding documents are classically liberal, so to be a conservative is, in a sense, to be a liberal.

[The New Number Two]

Progressives would be originalists if the Constitution as written contained provisions for everything they want and will want in the future. As it doesn't, they have to rely on creative reinterpretation if they aren't just going to ignore the whole thing.

[Marshal]

So, no examples of her "originalism" then? Seems a pretty weak justification for yet another baseless attack on conservatives. It is in keeping with Reason's core values though: cons are imperfectly originalist and therefore proggies with no originalism are superior originalists.

[Use the Schwartz]

What a weird way to try to hold her feet to the fire.

Her Answer: "I believe that the Constitution is fixed in its meaning,"
Occam's Razor: She Lied
Costanza's Razor: Just remember. It's not a lie, if you believe it.

[The New Number Two]

Maybe the meaning of her answer evolved to reflect the world we live in today. It was an inclusive answer, containing both itself and its contradiction, because bivalent logic systems are an expression of cultural imperialism and white supremacy.

[Agammamon]

Language is inherently queer!

[The New Number Two]

I haven't seen anything from Jackson that would lead me to believe she is an originalist of any stripe.

Conservatives have original intent theory, where they put on their tricorner hats, treat the Declaration of Independence as if it were part of the Constitution, and pretend to be inside the heads of the founders and framers. Or they're strict constructionists because the thought of judges using their own reasoning skills to interpret and apply the law makes them cringe.

The progressives have "living constitution" bullshit that allows them to interpret the law however they like, consistent with lefty moral culture and activist trends.

Textualism is the only theory that makes any sense. It's objective unlike OI and LC, not inflexible like SC but respects the words on the page, and doesn't care about your feelings or your ideological concerns.

[Marshal]

The conservative theory is not "original intent", it is "original public meaning".

[The New Number Two]

Otherwise known as textualism. That was Scalia's approach. But that is not the only conservative framework.

[Quo Usque Tandem]

Progressive originalism.

What would this be in practice?

I am not inclined to believe it would benefit me in any way; government overreach, on the other hand…

[SRG]

It could mean that "cruel and unusual" as criteria would retain original meaning, but what punishment constituted "cruel and unusual" would change, while conservatives like Fat Tony would claim that not only the meaning of the criteria not changed, but what punishments were covered by that criteria hadn't changed. Hence Fat Tony would think executing a child for a non-lethal felony would be constitutional while KBJ - and indeed, any actually decent American - would disagree.

But then, when it came to capital punishment, Scalia was little better than Lord Goddard.

[I, Woodchipper]

We're way past this. The Court upholds the regime. That's their job and it's been generations since any justices were anything but lapdogs to the regime.

[I, Woodchipper]

Also Ketanji seems to be a bit of a moron from what i can tell. Only Sotomayor is outdoing her at this point.

[The New Number Two]

The Wise Latinx on the Court is next-level moronic. It would be quite an accomplishment to outdo her.

[Otis R. Needleman]

What a fucking joke. This person cannot even define what a woman is, and somehow people think she will magically make any sort of difference. My six-year-old granddaughter knows the difference between a boy and a girl. Looks like she's likely going to be on the losing end of a bunch of SCOTUS decisions.

[tommhan]

This article say little for so many words being typed. It did not give the examples of all the times the Conservatives on the Supreme Court used the Constitution not in their original intent. Just an article saying the Left's savior in now on the bench.

[DesigNate]

The only example he had to give was that conservatives are icky and wrong because they don’t believe birthright citizenship should apply to the children of illegal aliens.

I don’t have a strong opinion one way or the other, but it seems plainly obvious to me that the text of the amendment would tend to support that theory.

[SRG]

He could have mentioned John Doe warrants and qualified immunity, for example.

[ITBWTW]

Damon Root needs to resign as a journalist. His standards for reality are so low he even defends jurists that don’t know what a woman is. That lack of knowledge about human beings discredits anything this jurist says, EXCEPT to others of low intellectual standards, like Mr. Root.

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[Think It Through]

Count me among the Reason legal scholars who have read the whole article twice and still don't know what the fuck a progressive originalist is.

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[kfs]

I just wonder if affirmative action Jackson will have to recuse herself if the SC takes up another affirmative action case, because you know...

[GroundTruth]

Bring it on! Let's have the discussion.

If the libertarian thinkers can't tear her to shreds, then all of us may have some thinking to do ourselves. But until she presents a cogent body of work in support of the concept of "progressive originalism", I'll stick with the clear meaning of the words as written, which looks pretty libertarian to me.

[Macy's Window]

What a vacuous article. It couples one criticism of one type of originalist thought with vague applause for someone who will reliably disagree with any actual originalist thought.

There will always be arguments over what the framers of some text intended or how, exactly, to interpret their words. KBJ has no intention at all of actually trying to tackle these questions with any honesty. She can't even define "woman," so how can she make a serious attempt to interpret the Constitution.