Nathan News

WASHINGTON — During her confirmation hearings in March, Ketanji Brown Jackson declared herself an original, meaning, she explained, she would interpret the Constitution based on how it was understood at the time of her adoption.

“I look at the text to determine what it meant to those who wrote it,” she said.

Conservatives were thrilled she said that, but some questioned whether she really meant it. On Tuesday, in her second day of hearing arguments as a member of the Supreme Court, Justice Jackson demonstrated that she means business — and that she thinks originality can demand liberal results.

She spoke during a dispute over the meaning of the Voting Rights Act of 1965, a landmark of civil rights. The immediate question in the case was whether a map of Congress drawn by Alabama lawmakers violated the law by diminishing the power of black voters.

But a larger question loomed in the background: Was the law itself in tension with the equal protection clause of the 14th Amendment, which was passed after the Civil War?

Many conservatives say the clause prohibits the government from making distinctions based on race – that the Constitution is color blind. It was a misinterpretation of historical evidence, Judge Jackson said, which demonstrated that “the purpose of the amendment was to secure the rights of former freed slaves.”

“I don’t think,” she said, “that the historical records establish that the founders believed racial neutrality or racial blindness was necessary.”

A week before Judge Jackson’s remarks, Judge Samuel A. Alito Jr. delivered a speech at Catholic University’s Columbus School of Law. His topic was “Originalism and the Catholic Intellectual Tradition”, and he noted that “Originalism has often been thought, rightly or wrongly, to be associated with conservatism”.

Justice Alito, who wrote the majority opinion in the June decision overturning Roe v. Wade, has raised a series of questions about the meaning and limits of originalism now that liberal justices have said they have embraced it.

“Are we really all originalists? he asked, mentioning one of the liberal members of the court. “A lot of people, including my colleague Elena Kagan, said ‘we’re all originalists now.’ Is it true?”

Only up to a point, he says. While many justices agree that the Constitution “must be interpreted in accordance with its original public meaning,” he said, “there is much disagreement about how that meaning should be found.”

“To illustrate this, my Exhibit A is Obergefell v. Hodges,” he said, referring to the 2015 Supreme Court ruling that the 14th Amendment’s Due Process Clause guaranteed the right to same-sex marriage.

Justice Alito dissented in that case, and in 2020 he joined a statement by Justice Clarence Thomas saying the Obergefell decision was unconstitutional. In June, in his majority opinion in the abortion case, he said the decision did not threaten other rights.

In his speech last month, Judge Alito focused on Obergefell’s “scathing dissent” written by “an original quirk”, Judge Antonin Scalia, who died in 2016.

“For him and many other originalists, Obergefell’s decision was the exact opposite of originalism,” Judge Alito said. “In 1868, when the 14th Amendment was passed, no one – no one – understood that it protected the right to same-sex marriage.”

He appeared to take Judge Kagan to task for his vote in the case. “Judge Kagan, who must consider herself an originalist – she said ‘we’re all originalists now’ – joined the majority at Obergefell,” he said.

Justice Kagan discussed originalism in her own confirmation hearings in 2010, saying the framers of the Constitution had different purposes in different parts of the document.

“Sometimes they have very specific rules,” she said. “Sometimes they set out great principles. Anyway, we apply what they say, what they wanted to do. So in that sense we are all originalists.

She expanded on that statement last month in a public interview at Northwestern University that appeared to anticipate Justice Alito’s criticism.

A specific provision of the Constitution, such as the one that states presidents must be at least 35 years old, requires no interpretation, she said.

In other arrangements, she said, the authors “knew they were writing for the ages” and so “wrote in general terms and in what you might call vague terms.” Interpreting these provisions, she said, requires judgment and attention to contemporary reality.

“They had some understanding,” Judge Kagan said of the drafters, “that life was going to change and you were supposed to apply those principles — and you had to apply those principles — but to circumstances they couldn’t. to imagine.”

In his speech, Justice Alito acknowledged that originalism has limits, particularly in cases which “could not have arisen at the time the relevant constitutional provision was enacted”, mentioning a case concerning restrictions on the sale of violent video games.

When the case was argued in 2010, Justice Scalia asked what those who had ratified the First Amendment thought of the depictions of violence.

Judge Alito replied with a quip: “What Judge Scalia wants to know is what James Madison thought of video games. Did he like them? »