Progressives Need to Support Justice Ketanji Brown Jackson

Lawrence B. Solum

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.”

Ironically, the fiercest critics of progressive originalism are not conservatives.  Instead, it is progressives themselves who have gone on the warpath.  Prominent examples include “Originalism is Bunk,” by Ruth Marcus of The Washington Post, “Worse than Nothing,” a slender monograph by Erwin Chemerinsky, and “Resisting Originalism, Even When ‘Done Well,’” a post on the Yale Journal of Regulation’s Notice and Comment Blog by Lisa Heinzerling.  What these critics and their many supporters share is an 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.

The progressive originalism of the twenty-first century has deep roots, starting with the first wave of progressive originalism led by Frederick Douglass.  The rediscovery of abolitionist constitutionalists like Douglass and his allies, has highlighted an important set of ideas that anticipate today’s public meaning originalism.  Douglass’s devastating criticism of Dred Scott was simple: it is the public meaning of the constitutional text and not the racist intentions of some of its authors that must be treated as the binding source of constitutional law.  The abolitionist constitutionalists never gained the upper hand on the Supreme Court, but their constitutional vision was enshrined in the Reconstruction Amendments.

Notoriously, a conservative Supreme Court then reacted by effectively nullifying many of these provisions.  For example, in the Slaughterhouse Cases and the notorious Cruikshank decision, the Court all but erased the Privileges and Immunities Clause.  That provision, in tandem with the Birthright Citizenship Clause, was drafted to safeguard the basic rights of the former slaves and all other American citizens.  In these cases, the Supreme Court used living constitutionalist reasoning (based on its own sense of a proper balance between the powers of the national government and the states) to undermine the original public meaning of the constitutional text.  This process of judicial nullification culminated in Plessy v. Ferguson in which the Justices elevated their own beliefs about mixing of the races above the original meaning of the Birthright Citizenship and Privileges or Immunities Clauses.

The second wave of progressive originalism was a reaction to what we now call the Lochner era.  During this period, the Supreme Court seized upon the word “liberty” in the Due Process of Law Clause and created the modern doctrine of “substantive due process” out of whole cloth.  Opposition to Lochner took many forms, one of which was the second wave of progressive originalism led by Justice Hugo Black.

When Black was appointed to the Supreme Court in 1937, the Court was faced with a formidable array of living constitutionalist precedent than enshrined the conservative values of the Justices in constitutional decisions that could not be overruled by the New Deal Congress.  Justice Black saw then what Justice Jackson sees now, the best and most effective way to attack a conservative juristocracy is to show that conservative living constitutionalism is inconsistent with the original public meaning of the constitutional text.  Living constitutionalism grows and flourishes in shadows created by judicial obfuscation.  Those shadows can only be dispelled by exposing them to the clear and bright light cast by original meaning.

Justice Black carried the torch of what we now call “originalism” proudly, until he retired in 1971.  For most of Justice Black’s career as a Justice, the Supreme Court was dominated by liberals and progressives, including Chief Justice Earl Warren and Associate Justices William Brennan and Thurgood Marshall.  These liberal lions rejected originalism and instead embraced juristocracy for progressive ends.  When the liberals revived substantive due process in the mid-1960s, they knew they were letting the genie out the bottle. But they made what seemed like a safe bet at the time—that the arc of history would lead to a permanent progressive majority on the United States Supreme Court.  We now know that they lost that bet!  The current Supreme Court has only three members appointed by Democratic presidents; the majority of the Court has consisted of Republican appointed Justices since the 1970s.

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.

The erasure of Frederick Douglass’s contributions to the history of American constitutional thought is especially shameful. By ignoring Douglass, progressive law professors have essentially adopted William Garrison’s reading of the Constitution as “a covenant with death and an agreement with hell;” and they’ve endorsed the view that both Dred Scott and Plessy were consistent with original meaning.  But Frederick Douglass was right, and the progressive critics of Justice Jackson are wrong.  By arguing against the legitimacy of the Constitution itself, the “New Garrisonians,” have undermined their own credibility and thereby undercut all of the progressives Justices.

Critics of the third wave of progressive originalism have arguments aplenty, but their most important claim is that some conservative Justices and judges have been flying under a false flag, claiming the mantle of originalism when in fact they are covert living constitutionalists.  So far, so good.  Progressive originalists agree!

It is precisely at that this point, however, that the critics of progressive originalism go astray.  Because of their deep seated antipathy towards originalism, they argue that progressives should refrain from making originalist arguments—even if those arguments support progressive outcomes and even if those arguments provide the only realistic chance of success given the current composition of the Supreme Court.  Why?  Marcus and others believe that if progressives invoke the original meaning of the constitutional text to reach progressive results, this will legitimate the conservative juristocracy.

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.

What the critics of third wave progressive originalism do understand that it takes a theory to beat a theory.  Ruth Marcus’s editorial for The Washington Post recognizes this point. It endorses a theory known to legal scholars as “constitutional pluralism.” Expressed by the Dobbs dissenters, this is the view that constitutional meaning “can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.”  But constitutional pluralism is the exactly the method now being overtly or covertly used by conservative Justices.  Chief Justice Roberts is open about this, but Justice Alito is almost as frank, even when he calls himself a practical originalist.  Endorsing constitutional pluralism legitimates the use of conservative principles, conservative history, and conservative precedents to nullify the constitutional text.

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.

 

Lawrence Solum is William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law and Douglas D. Drysdale Research Professor of Law at the University of Virginia. You can reach him by e-mail at lsolum@law.virginia.edu.