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Justice Jackson Joins the Supreme Court, and the Debate Over Originalism


WASHINGTON — At her confirmation hearings in March, Ketanji Brown Jackson declared herself to be an originalist, meaning, she explained, that she would interpret the Structure based on the way it was understood on the time it was adopted.

“I have a look at the text to find out what it meant to those that drafted it,” she said.

Conservatives were pleased she had said this, but some wondered whether she had meant it. On Tuesday, during her second day of hearing arguments as a member of the Supreme Court, Justice Jackson demonstrated that she was serious — and that she believes originalism can require liberal outcomes.

She spoke during an argument over the meaning of the Voting Rights Act of 1965, a civil rights landmark. The immediate query within the case was whether a congressional map drawn by Alabama lawmakers had violated the act by diminishing Black voters’ power.

But a bigger query loomed within the background: Was the act itself in tension with the 14th Amendment’s equal protection clause, which was adopted after the Civil War?

Many conservatives say the clause forbids the federal government from drawing distinctions based on race — that the Structure is colorblind. That was a misreading of the historical evidence, Justice Jackson said, which demonstrated that “the complete point of the amendment was to secure rights of the freed former slaves.”

“I don’t think,” she said, “that the historical record establishes that the founders believed that race neutrality or race blindness was required.”

Every week before Justice Jackson’s remarks, Justice Samuel A. Alito Jr. gave a speech at Catholic University’s Columbus School of Law. His topic was “originalism and the Catholic mental tradition,” and he noted that “originalism has often been thought, appropriately or incorrectly, to be related to conservatism.”

Understand the Supreme Court’s Recent Term

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Affirmative motion. The marquee cases of the brand new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put greater than 40 years of precedents in danger.

Discrimination against gay couples. The justices will hear an appeal from an online designer who objects to providing services for same-sex marriages in a case that pits claims of non secular freedom against laws banning discrimination based on sexual orientation. The court last considered the difficulty in 2018 in an identical dispute, but did not yield a definitive ruling.

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

“Are we actually all originalists?” he asked, mentioning considered one of the liberal members of the court. “Many individuals, including my colleague Elena Kagan, have said that ‘we’re all originalists now.’ Is that true?”

Only to some extent, he said. While many judges agree that the Structure “must be interpreted in accordance with its original public meaning,” he said, “there may be loads of disagreement about how that meaning must be found.”

“For example this, my Exhibit A is Obergefell v. Hodges,” he said, referring to the 2015 Supreme Court decision that said the due process clause of the 14th Amendment guaranteed the suitable to same-sex marriage.

Justice Alito dissented in that case, and in 2020 he joined a press release from Justice Clarence Thomas saying the Obergefell decision was at odds with the Structure. In June, in his majority opinion within the abortion case, he said that ruling didn’t threaten other rights.

In his speech last month, Justice Alito focused on the “blistering dissent” in Obergefell written by “a pioneering originalist,” Justice Antonin Scalia, who died in 2016.

“To him and lots of other originalists, the choice in Obergefell was the precise opposite of originalism,” Justice Alito said. “In 1868, when the 14th Amendment was adopted, no one — no one — understood it to guard a right to same-sex marriage.”

He looked as if it would take Justice Kagan to task for her vote in that case. “Justice Kagan, who must regard herself as an originalist — she has said ‘we’re all originalists now’ — joined the bulk in Obergefell,” he said.

Justice Kagan discussed originalism at her own confirmation hearings, in 2010, saying that the framers of the Structure had different goals in numerous parts of the document.

“Sometimes they laid down very specific rules,” she said. “Sometimes they laid down broad principles. Either way, we apply what they are saying, what they meant to do. So in that sense, we’re all originalists.”

She elaborated on that statement last month in a public interview at Northwestern University that looked as if it would anticipate Justice Alito’s criticism.

A selected provision of the Structure, just like the one that claims presidents have to be at the least 35 years old, needs no interpretation, she said.

In other provisions, she said, the framers “knew that they were writing for the ages” and so “wrote in broad terms and in what you may call vague terms.” Interpreting those provisions, she said, requires judgment and a spotlight to contemporary reality.

“They’d some understanding,” Justice Kagan said of the framers, “that life would change and that you just were presupposed to apply these principles — and also you needed to apply these principles — but to circumstances that they couldn’t imagine.”

In his speech, Justice Alito acknowledged that originalism has limits, particularly in cases that “couldn’t have arisen on the time when the relevant constitutional provision was adopted,” mentioning a case concerning restrictions on the sale of violent video games.

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

Justice Alito responded with a quip: “What Justice Scalia desires to know is what James Madison thought of video games. Did he enjoy them?”

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