The Volokh Conspiracy

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Is Justice Jackson the "De Facto Leader" of Progressive Originalists?

Originalist scholar Larry Solum suggests KBJ could be the Left's Antonin Scalia.


Professor Lawrence Solum, a prominent scholar and defender of Originalism, has an interesting post on Balkinization suggesting that the Supreme Court's newest Justice, Ketanji Brown Jackson, is establishing herself as a powerful force for progressive originaliism on the Court.

His post begins:

A third wave of progressive originalism is now well underway.  Justice Jackson is already the de facto leader of a group of scholars, lawyers, and judges who understand the dangers that judicial supremacy and living constitutionalism pose to democracy and equality—given the reality that conservative justices will dominate the Supreme Court for at least a decade or two.  Justice Jackson's originalism 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."

As Solum describes the history, the "first wave" of progressive originalism was led by Frederick Douglass (who embraced the Constitution quite fervently in his later work), and the "second wave" was led by Justice Hugo Black.

As Solum notes, many contemporary progressives have embraced "opposition to Justice Jackson's embrace of originalism's progressive potential, both as a counter to conservative living constitutionalism and as the key to unlocking the emancipatory power of the Fourteenth Amendment." Solum believes this is a mistake.

Justice Jackson sees the obvious: progressives must oppose a conservative juristocracy.  And the most effective way to do that is to expose the gap between the outcomes that conservatives prefer and the original public meaning of the constitutional text.  Justice Jackson is in the vanguard of the third wave of progressive originalism, and she is not alone.  Progressive constitutional scholars like Akhil Amar and Jack Balkin at Yale, and progressive lawyers like Elizabeth Wydra at the Constitutional Accountability Center, have labored for decades to lay the foundations for a progressive and originalist resistance to a conservative juristocracy.

Why do some progressives ignore this reality?  The answer lies in a misleading but potent narrative about the history of originalism.  That history focuses on the role that originalism played in conservative critiques of the Warren Court.  This false narrative seizes on the fact that the word "originalism" was coined in the early 1980s as basis for the dubious claim that the idea behind originalism—that judges should be bound by the original meaning of the constitutional text—was invented by conservatives during the Reagan Administration.  That narrative is incomplete and inaccurate because it ignores the first two waves of progressive originalism. . . .

If conservative judges are making selective use of history to make originalist arguments for conservative results, then the only way to show this is to make better originalist arguments to the contrary.  Failure to make progressive originalist arguments effectively concedes that the constitutional text supports conservative result, legitimating rather than undermining the conservative juristocracy. . . .

Progressives need to support Justice Ketanji Brown Jackson, not undercut her.  Their reluctance to do so may stem from the fact that good faith originalism offers neither progressives nor conservatives everything they want by way of results.  There is a price to paid for good faith originalism.  But juristocracy, whether conservative or progressive, is a profound threat to the rule of law.  Justice Jackson is right to oppose it.

The full post is worth a read.