Omar Bennett
Justice Ketanji Brown Jackson is the first Black woman to serve on the Supreme Court. Her interpretation of the Constitution has been a topic of much discussion and debate among legal experts and political commentators. During her confirmation hearings, Jackson introduced herself as an originalist, meaning she interprets the Constitution based on how it was understood at the time it was adopted. However, her originalism has been described as progressive, taking into account the three transformative amendments adopted after the Civil War. In her first term on the Supreme Court, Jackson established herself as a distinctive voice, challenging the dominant conservative narrative of the Constitution and advocating for meaningful equality and a thriving multiracial democracy.
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What You'll Learn
Jackson's interpretation of the Fourteenth Amendment
Justice Ketanji Brown Jackson interprets the Constitution through a progressive originalist lens. This doctrine of judicial interpretation follows the Constitution as it was initially intended to be understood at the time of its writing.
Justice Jackson's interpretation of the Fourteenth Amendment is particularly noteworthy. She argues that the Fourteenth Amendment was intended by its framers to be race-conscious rather than race-neutral. The usage of "any person" in the amendment, she asserts, underscores the framers' intent to welcome African Americans as citizens of the United States, abandoning the notion that only white people should be considered citizens. This interpretation aligns with her progressive originalist approach, which offers liberals a new perspective on analyzing race-consciousness in the Constitution.
In her rulings, Justice Jackson has demonstrated a commitment to protecting the rights of minority groups, as intended by the architects of the Fourteenth Amendment. For example, in the case of Pierce v. District of Columbia (2015), she ruled that the D.C. Department of Corrections violated the rights of a deaf inmate under the Americans with Disabilities Act by failing to provide reasonable accommodations.
Justice Jackson's interpretation of the Fourteenth Amendment also extends to voting rights. In the case of Merrill v. Milligan, she countered the argument that redistricting must be race-blind. Instead, she asserted that the framers adopted the equal protection clause reflected in the Fourteenth Amendment in a race-conscious manner. This interpretation aligns with her broader commitment to protecting voting rights and ensuring that minority groups have equal access to the ballot.
Justice Jackson's progressive originalist approach to the Fourteenth Amendment stands in contrast to the interpretations of more conservative justices, such as Justices Scalia and Thomas. By embracing the race-conscious intentions of the framers, Justice Jackson's rulings have the potential to shape civil rights and voting rights issues in a manner that protects the rights of minority groups and upholds the ideals of equality and fairness enshrined in the Fourteenth Amendment.
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Her stance on abortion
During her confirmation hearings in March 2022, Ketanji Brown Jackson introduced herself as an originalist. Legal originalism is a doctrine of judicial interpretation that follows the Constitution as it was initially intended to be understood at the time it was written. This doctrine is often associated with the Court's more conservative justices, who have used it to argue against abortion and gun rights.
However, Justice Jackson's interpretation of originalism has taken a new, progressive form. During her hearings, she declined to settle on a specific approach to interpreting the Constitution, steering a course between originalism and pragmatism. She said that while the high court looks to the text of the Constitution "as originally intended", it must apply "those principles to modern-day".
On the topic of abortion, Jackson has been purposefully vague about her stance. During her confirmation hearings, she was asked several times about her abortion views. She agreed that Roe v. Wade, the court's 1973 decision legalizing abortion nationwide, was a binding precedent. When asked if she would respect the Supreme Court's decision if it overturned Roe v. Wade, she said she would treat it as she "would any other precedent". She also said it's very important to "set aside one's personal views about things" when acting as a judge.
In June 2024, Jackson penned a fiery dissent in an abortion ruling, slamming her fellow justices' decision to dismiss a case over whether a state can ban abortions to protect women's health. She argued that the dismissal would drag out the case and potentially endanger Americans. She said: "We cannot simply wind back the clock to how things were before the court injected itself into this matter. Our intervention has already distorted this litigation process".
In summary, while Justice Ketanji Brown Jackson has not explicitly stated her personal stance on abortion, her interpretation of the Constitution as an originalist with progressive tendencies, her commitment to treating precedents as binding, and her dissent in the Idaho abortion case suggest that she supports keeping abortion legal.
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Her views on child pornography sentencing
Judge Ketanji Brown Jackson has been criticized for her views on child pornography sentencing. During her Supreme Court confirmation hearings, she defended her apparent sympathy for offenders and evaded questions about her responsibility for appropriate sentencing. She has a history of light sentencing in child pornography cases, and has been criticized for her commentary about such cases. While serving on the U.S. Sentencing Commission, she asked if there could be "a less-serious child pornography offender".
Jackson has forcefully defended her sentencing decisions, calling the act of balancing punishment to reflect the seriousness of the crime with the circumstances of a case the essence of what a judge is called to do. She has pointed to Congress' responsibility, stating that "Congress has decided what it is that a judge has to do in this and any other case when they sentence". She has also cited the "parsimony" clause of 18 U.S.C. § 3553, or the "Sentencing Reform Act of 1984", where Congress established a new federal sentencing system based on sentencing guidelines.
One specific case that has been brought up during her confirmation hearings is that of Wesley Hawkins, who was sentenced to three months in prison for child pornography by Jackson in 2013. Hawkins had uploaded five videos of prepubescent boys engaged in sex acts to YouTube. Although federal guidelines called for a sentence of eight to ten years, prosecutors recommended two years due to Hawkins' age and lack of criminal record. A U.S. probation officer recommended a year and a half, while Hawkins' defense attorney asked for one day in jail and five years of supervised release. Jackson rejected so-called enhancements to Hawkins' sentence, including one that would have extended his prison term because of the young ages of those pictured. She stated that "most child pornography offenders are middle-aged adults who are deviants drawn to pictures of vulnerable children… This case is different because the children in the photos and videos you collected were not much younger than you".
Jackson's views on child pornography sentencing have been described as "mainstream" and "correct" by some, who argue that she has followed the guidelines at the low end of the sentencing range, as most judges do. However, others, particularly Republicans, have criticized her views as being dangerously soft on crime.
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Her approach to affirmative action
Judge Ketanji Brown Jackson's approach to affirmative action has been a topic of much discussion and debate. During her confirmation hearings in 2022, Justice Jackson introduced herself as an originalist, a doctrine of judicial interpretation that follows the Constitution as it was initially intended to be understood when it was written.
However, Jackson's interpretation of originalism has been described as progressive. In the case of Merrill v. Milligan, she reasoned that the Fourteenth Amendment was intended by its framers to be race-conscious rather than race-neutral. She argued that the Amendment was drafted to ensure the freedom of people who had been discriminated against based on their race and to give a constitutional foundation for legislation that aimed to address inequalities and ensure equal rights for all.
In June 2023, Justice Jackson issued a dissenting opinion in a Supreme Court ruling against affirmative action, specifically regarding the consideration of race in university admissions. She argued that race-based gaps exist in health, wealth, and well-being, and that holistic admissions programs, such as the one at the University of North Carolina (UNC), are a solution to achieving racial equality rather than a problem.
Justice Jackson further asserted that government policies have historically operated to exclude Black people and dole out preferences to those who are not Black. She also questioned how plaintiffs could demonstrate that they had been rejected by a university as a result of affirmative action, given the subjective factors involved in admissions decisions.
To appeal to her conservative colleagues, Justice Jackson has employed arguments rooted in originalism, pointing out that the same Congress that passed the 14th Amendment and equal protection clause also deliberately targeted funding to schools serving Black children. She has pursued strategies that give affirmative action a fighting chance of surviving, indicating her commitment to advocating for her progressive beliefs even on a conservative Court.
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Her views on racial discrimination
Judge Ketanji Brown Jackson, the first Black woman to sit on the nation's highest court, has expressed her interpretation of the U.S. Constitution, which has been labelled as "progressive originalism". This interpretation has been praised for its progressivism, marking a departure from the conservative nature of legal originalism.
During her confirmation hearings in 2022, Jackson introduced herself as an originalist, subscribing to the doctrine of legal originalism, which interprets the Constitution as it was initially intended at the time of its writing. However, her specific approach to originalism has been described as progressive.
In the case of Merrill v. Milligan, Justice Jackson employed progressive originalist rhetoric, reasoning that the Fourteenth Amendment was intended by its framers to be race-conscious rather than race-neutral. She argued that the Amendment was drafted to ensure the freedom of people who had been discriminated against based on their race. Jackson cited historical context, including the Report of the Joint Committee on Reconstruction from 1866, to support her interpretation. This case demonstrated Jackson's commitment to interpreting the Constitution through a lens that acknowledges the existence of racial discrimination and seeks to address it.
In another instance, Jackson's interpretation of the Constitution was evident in her response to a case concerning a Maryland school district's LGBTQ+ curriculum. While some parents objected, Jackson appeared to side with the school district, indicating a willingness to prioritise inclusivity and the rights of the LGBTQ+ community.
While Jackson has provided insights into her judicial philosophy, she has also demonstrated a commitment to impartiality and independence. She has emphasised her limited power as a judge and has urged her colleagues to show courage in the face of political pressure.
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Frequently asked questions
Jackson has been described as a progressive originalist, meaning she interprets the Constitution based on how it was understood at the time it was adopted but also takes into account the three transformative amendments adopted after the Civil War. She has also been described as pragmatic, taking into account other factors such as the "reasonableness" of a decision.
Jackson has argued that the Fourteenth Amendment was intended to be race-conscious rather than race-neutral. She cited the Report of the Joint Committee on Reconstruction from 1866, which stated that "unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated Freedman.".
Jackson has not explicitly stated her stance on abortion, but her interpretation of the Constitution as a progressive originalist suggests that she may support abortion rights. During her confirmation hearings, she said that she would rule impartially and was aware of her limited power as a judge.
In her first term on the Supreme Court, Jackson dissented in a case regarding a Mississippi felon-disenfranchisement law, arguing that "Constitutional wrongs do not right themselves." She also joined Justice Neil M. Gorsuch in exploring a possible violation of the Eighth Amendment's prohibition of "excessive fines" when states seize and sell private property to recoup unpaid taxes.
