Apr 11, 2022

Ketanji Brown Jackson's judicial philosophy.

Ketanji Brown Jackson's judicial philosophy.

Plus, a question about the "gap" in White House call logs on January 6.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

We're covering Judge Jackson's confirmation and what it means for the court. Plus, a question about the "gap" in Trump's call logs on January 6.

Ketanji Brown Jackson speaks at the White House after being confirmed. Photo: CNN screenshot
Ketanji Brown Jackson speaks at the White House after being confirmed. Photo: CNN screenshot

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Quick hits.

  1. Donald Trump endorsed Dr. Mehmet Oz over David McCormick on Saturday night, officially throwing his hat in the ring in the Pennsylvania Senate race. (The endorsement)
  2. Ukraine says the tortured bodies of 132 citizens were found in Makariv, a suburban town outside of Kyiv. (The bodies) Russia appointed a new general known for his brutality to take central command of its war efforts in Ukraine. (The appointment)
  3. 67 of the 630 attendees at last week's Gridiron media dinner have now tested positive for Covid-19, including three Cabinet members. House Speaker Nancy Pelosi also tested positive for the virus last week. (The spread)
  4. Two men were acquitted of a plot to kidnap Michigan Gov. Gretchen Whitmer in 2020, a stunning defeat for the U.S. government. (The acquittal)
  5. Twitter CEO Parag Agrawal announced that Elon Musk has reversed his plan to join the social media company's board, but remains its largest shareholder. (The reversal)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

Ketanji Brown Jackson. On Thursday, Jackson became the 116th justice to be confirmed to the Supreme Court. The Senate voted 53-47 to confirm her nomination, with three Republicans — Sens. Mitt Romney (UT), Lisa Murkowski (AK) and Susan Collins (ME) — voting in favor, along with all 50 Democrats. Jackson will replace Justice Stephen Breyer when he retires at the end of this summer. She will also become the first Black woman to ever sit on the court, and her appointment marks the first time ever that white men have not been the majority of sitting justices.

We covered Jackson's qualifications in this Tangle edition, and we covered her hearings in this Tangle edition. Today, we are going to focus on how the addition of Jackson to the court impacts the ideology of the court, with a focus on her judicial philosophy.

Today, the court is considered to have a 6-3 "conservative" majority, with Justices Breyer, Elena Kagan, and Sonia Sotomayor the liberals on the court. Chief Justice John Roberts, as well as Justices Brett Kavanaugh and Amy Coney Barrett, are generally considered to be more moderate and less predictable conservatives, while Neil Gorsuch, Samuel Alito and Clarence Thomas are generally considered staunch conservatives on the bench. Jackson will be replacing Breyer, meaning her appointment won't fundamentally change the balance of the court. However, justices serve lifetime appointments, so Jackson could be the first step towards liberals regaining some balance on the court.

Every justice and judge is asked to interpret three kinds of law when reviewing cases: the Constitution, pertinent statutes and case precedents. In each category, they typically rely on a personal judicial philosophy — or a combination of them — to come to conclusions. There are many theories of law or legal philosophies associated with the Supreme Court.

Originalism and textualism are typically considered related theories that should restrain how justices interpret the law. Originalism is the enforcement of the "original public meaning" of a constitutional provision, or how it was understood at the time of ratification. Textualism is when judges apply the words of a statute to a ruling literally, rather than applying legislative history or original intent. In recent decades, both of these terms have become associated with conservative justices. The counter to these philosophies is judicial pragmatism (often referred to as a "living Constitution") which holds that the Constitution is dynamic and evolving, and it must be interpreted to fit the present day even without its actual text being amended.

There are other legal philosophies, too. Justice Breyer is often said to follow prudentialism, which government scholar John E. Finn defined it as a philosophy that counsels judges to "avoid setting broad rules for future cases and offers a particular understanding of the limited role courts should play in a constitutional democracy." Justice John Roberts is said to practice doctrinalism, where he relies more heavily on precedent to make his analyses.

During her confirmation hearings, Jackson declined to identify her judicial philosophy, or any judge she looked to as a role model, a path other nominees have taken as well. However, given that Republicans have been on a decades-long push to place Federalist Society originalists and textualists on the Court, several of Jackson's comments — which seemed favorable to both of those philosophies — created a stir, on the right and left, and left a lot of people questioning how she might rule.

Below, we'll take a look at some commentary from the left and right on how they see Jackson's judicial philosophy. Then, my take.


What the right is saying.

  • The right gave mixed reviews of Jackson's judicial philosophy, with some praising her for leaning into textualist and originalist thought.
  • Others said she owed the nation a clearer explanation of how she will handle court cases.
  • Some argued that none of this means Biden will regret his pick.

Quin Hillyer said Judge Jackson "sounds conservative" and that is actually important.

"Nobody should believe Jackson will be anything other than a very liberal justice. Still, the degree to which she answered questions by adopting textualist or originalist thought processes is a testament to how conservative jurisprudential approaches now frame most constitutional law discussions. Even liberals are now arguing within parameters set by jurists such as Justice Clarence Thomas and the late Justice Antonin Scalia. That’s a good sign," Hillyer wrote. "For example, Jackson regularly spoke about 'the greatness of this nation' being evident in how much progress the United States has made in numerous ways in just a generation or two, rather than asserting that the country is irredeemably flawed. She repeatedly spoke of 'adherence to the text' of the Constitution and laws as a proper 'restraint on my own authority as a judge.'

Rather than saying legal texts have meanings that 'evolve' with the times, she said that a text should be interpreted according to 'what it meant to those who drafted it.' (Actually, conservatives believe slightly differently, namely that the original, publicly understood meaning of the text, not the drafters’ ‘intent,’ should guide judges. But Jackson’s answer is very much in the right ballpark.) Unlike a number of Democratic judicial nominees in the past two decades, Jackson also sounded conservative when speaking very definitively against the use of international law to adjudicate U.S. domestic cases," Hillyer said. "She said she agreed with a questioner that international law should not be used 'for interpreting enumerated or unenumerated' constitutional rights.”

Scott Douglas Gerber said Jackson owes us an answer on her judicial philosophy.

"Judge Ketanji Brown Jackson testified during her Senate confirmation hearing that her judicial 'philosophy' is her judicial 'methodology,' and that her judicial methodology is to be neutral, to understand the facts and to interpret the law. That testimony was problematic," Gerber wrote. "Different theories can lead to different answers. For example, a textualist approach would conclude that the Constitution does not guarantee an individual’s right to privacy – what has come to be known as 'personal autonomy' – because the word 'privacy' does not appear in the Constitution, whereas a moralist would likely conclude that privacy is protected by the Constitution because individual liberty is central to the Constitution's ethos.

"The aforementioned theories of constitutional interpretation are not mutually exclusive, and a specific Supreme Court justice sometimes employs different theories in different cases," Gerber added. "But each case requires more of a judge than a professed commitment to impartiality and to the application of the facts to the law. Even an impartial judge must interpret the law before he or she can apply the facts of the case to the law. And that requires a judicial philosophy about legal interpretation... Jackson came across during her confirmation hearing as a bright and well-credentialed judge, and as a nice person. But a Supreme Court justice needs a judicial philosophy. Jackson should tell the American people what hers is."

The Wall Street Journal editorial board said her answers invoked the late great Antonin Scalia.

"Somewhere Justice Antonin Scalia must be singing, as he was known to do before he ascended. The great Scalia, who brought originalism to the fore before his death in 2016, might furrow his brow at the word 'intent,' since his judicial philosophy was to examine the plain meaning of words, not to divine what James Madison was really thinking," the board said. "Yet Judge Jackson’s comment is a mark of Scalia’s influence. He once joked that originalism was viewed as a 'weird affliction that seizes some people—‘When did you first start eating human flesh?’' Now even Judge Jackson, whom President Biden expects to be a reliable liberal vote, wants to be seen as a believer.

"That doesn’t mean Mr. Biden will regret this nomination. 'We’re all textualists now,' Justice Elena Kagan said in 2015, which hasn’t stopped her from flying with the Court’s left wing," the board added. "Originalism doesn’t mean that even conservative Justices always agree. Other factors come in play, such as when to overrule a decaying precedent. A Justice who starts with the text can always finish with something else. To that point, it’s no credit that Judge Jackson insists she has no judicial philosophy, merely a 'methodology' with three steps: She says that she clears her mind of personal views, evaluates all the facts and arguments, and then applies the law. That’s a fine answer for a nominee to be a trial judge, but not for a Justice. If originalism is only one tool in Judge Jackson’s toolbox, she might also have a buzz saw in there."


What the left is saying.

  • The left praised Jackson's responses for being independent and for not allowing senators to shoehorn her into a position.
  • Some said she clearly explained her philosophy; Republicans just didn't know what to do with it.
  • Others said her responses were a shrewd way to be honest and avoid being pigeonholed.

In USA Today, Barbara McQuade said Jackson made it clear "she will not let anyone else define her."

"Jackson was asked repeatedly Tuesday to explain her 'judicial philosophy.' The senators wanted to know whether she was, for example, an originalist or a textualist, or, if not, someone they could label a judicial activist," McQuade said. "Perhaps she shares the belief of her former boss, Justice Stephen Breyer, in 'active liberty,' a view he described in his book of that title as 'recognizing the changing needs and demands of the populace.' Each time she was asked, Jackson patiently explained that her judicial philosophy is best understood as a methodology – to decide a case, she starts from a neutral posture, considers the facts and the law, including the text of a statute or the Constitution and relevant precedents.

"Jackson similarly denied that any other justice was a role model, telling Sen. Ben Sasse (R-NE), 'I don’t really have a justice that I’ve molded myself after.' Jackson would not be pinned down as an adherent to anyone else's school of thought," McQuade wrote. "Jackson is not the caricature that some senators are trying to draw. She is a former public defender who has been endorsed by police unions. She has written articles on the rights of criminal defendants and has close relatives who are police officers. She has fairly applied the law in child pornography cases, even though she considers such crimes 'the worst of humanity.' In other words, she appreciates the law's complexities and applies the law faithfully.

Conor Casey and Adrian Vermeule called it a "Pyrrhic victory" for originalism.

“If and when most judicial nominees, liberal and conservative, Democratic and Republican, assent to some form of originalism, it will come at a steep price for originalists: Their method will be shown to do nothing at all, save, perhaps, providing a jargon in which to rationalize decisions reached on other grounds,” they said. “It will become clear — even as the justices resolutely deny it — that all the real work, in hard cases of constitutional interpretation, is done by implicit or explicit commitments of political morality. Moreover, the Pyrrhic victory for originalism will be a defeat for the nation at large, diminishing transparency about the real grounds of judicial decisions and exacerbating cynicism about constitutional law.

“This brand of originalism suffered years of scathing critique, mostly from liberals, who argued that the methodology failed to live up to its promise of neutrality — and moreover that there was no reason to think this aspiration was possible in any event," they wrote. "This is precisely why supposedly originalist justices, in hard cases, constantly appeal to contemporary views of justice to fix the meaning of vague, general or ambiguous texts... Against this backdrop, Jackson’s comments this past week are best read as the self-defeating triumph of a vacuous form of originalism. Lawyers of any and all substantive views can agree with its core slogans, it seems, but those slogans are banalities that offer no guidance about how to make the moral choices that inevitably arise in hard cases. When every judicial nominee calls herself an originalist, the method cuts no ice. If everything is originalism, nothing is."

Mark Joseph Stern praised her testimony*, saying it was a "shrewd" way to appease the conservative senators.

"Her embrace of the conservative legal movement’s prized judicial philosophies delighted many commentators on the right, who cheered Tuesday’s 'thorough rout for progressive theories of law,'" Stern observed. "These commentators are correct that Jackson’s rhetoric signals the triumph of originalism and textualism, which are now firmly established as the default mode of judging. But her rhetoric does not mean that she is further to the right than Democrats assumed, let alone a secret reactionary... This commentary reflects some antiquated assumptions about liberal judging today. Many Democratic politicians do still describe the Constitution as a living or 'evolving' document (in President Joe Biden’s words). But progressive jurists rarely do. Instead, they understand that originalism and textualism are genuinely useful tools that can frequently result in a liberal outcome.

"It turns out that how you apply these theories is just as important as whether you apply them," Stern wrote. "A rigidly textualist reading of the Civil Rights Act, for example, protects LGBTQ employees, while a looser analysis that factors in congressional intent does not. When the text is not perfectly clear, judges will inevitably draw on other sources, such as the purpose of the statute, to fill in the gaps. Moreover, originalism is quite easy to manipulate: Judges can frame original meaning at a high level of generality or cherry-pick historical texts to reach a desired result. Oftentimes, the original meaning of a constitutional provision is simply unknowable, forcing judges to look elsewhere when elucidating its meaning. Because these methodologies have proved just as flexible as 'living constitutionalism,' judges across the ideological spectrum freely deploy them."

*We cited this piece on March 23, but it seemed worth sharing again.


My take.

I don't really have a horse in this race; I just find the whole thing so fascinating. Judge Jackson really did sound the way so many conservative politicians wanted her to, yet she earned very little conservative backing and garnered absolutely zero liberal or Democratic opposition that I could find.

If her responses indicate any clear, defining historical shift, it's that adherence to originalism or textualism may no longer associate justices with one political party or the other. Kagan started that trend with her famous “We’re all textualists now" quote, but Jackson may have just completed the obliteration of this litmus test.

To be frank, I'm not sure I totally buy the framing from Mark Joseph Stern and others that this was "shrewd" or in some way an act, as such language implies. I think Jackson's judicial philosophy sounds conservative because it is in line with the way conservative activists have become used to framing conservative justices. As many other experts have pointed out, the entirety of the current Supreme Court now favors originalist and textualist philosophies, which tells us very little about how they will rule in the cases that come before the court. Textualism or originalism have "won" in the sense that all of the modern judicial views of the top justices seem rooted in their own versions of those philosophies. The difference in how that plays out is reflected in each justice's values.

As for Jackson's short-term impact, I think that it might be limited. If anything, the court's prioritization of seniority will make the Democratically-appointed wing less influential with the addition of Jackson and the retirement of Breyer, not more. Cases on Roe v. Wade, second amendment protections in public and the EPA's ability to regulate in a climate-friendly manner will all be determined before Jackson joins the Court. And Jackson has already pledged to recuse herself from a challenge to Harvard's admissions program, which will be one of the biggest affirmative action cases of the next term.


Your questions, answered.

Q: What do you think happened during the missing 7 hours and 37 minutes in the presidential log on January 6, 2021? And do you think they were tampered with? Is there a coverup for the crime Trump “more likely than not” engaged in?

— Anonymous, California

Tangle: Anything I say here would be pure speculation. And it's worth noting that this story may actually be a big nothingburger.

The "seven-hour" gap in the call logs from Jan. 6, which was first reported by Washington Post and CBS, caused a lot of speculation that the logs were tampered with or erased to cover up some communications as the Capitol was breached by rioters. But a CNN story that followed up on this, which got much less coverage, said the gap wasn't mysterious at all: It just reflected "Trump's typical phone habits." From the CNN story:

He mainly placed calls through the switchboard when he was in the residence but rarely used it when he was in the Oval Office. The fact the log does not show calls on January 6, 2021, from the Oval Office is not unusual, said the sources, because Trump typically had staff either place calls directly for him on landlines or cell phones. Those calls would not be noted on the switchboard log. The six pages of White House switchboard logs for January 6, 2021, are complete based on an official review of White House records, according to a source familiar with the matter... There are no missing pages and the seven-hour gap is likely explained by use of White House landlines, White House cell phones and personal cell phones that do not go through the switchboard.

In other words, the "gap" is probably a non-story. That doesn't mean Trump wasn't actually communicating with organizers on the ground or allies in Congress — we know that he was. And what he discussed, with whom, are important questions to answer. But it also means the alleged "gap" may not be the product of any tampering, just a reflection of what method Trump was using to communicate with people outside the White House.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

President Biden is "making his move" on gun regulation. Today, the administration is unveiling a new rule to curb so-called "ghost guns," which are firearms made from kits purchased online making them very hard to trace. He has also named a new candidate, Steve Dettlebach, to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives (his previous nominee, David Chapman, was forced to withdraw). If Dettlebach is confirmed he'll become the agency’s first full-time head since 2015. Democrats are also ramping up pressure on Biden to issue new executive orders on federal gun licensing and to create a centralized task force to address gun violence. Politico has the story.


Numbers.

  • 49%. The percentage of voters who said the Senate should confirm Jackson to the Supreme Court.
  • 26%. The percentage who opposed her confirmation to the Supreme Court.
  • 1 in 4. The number of voters who said they don't know or didn't have an opinion about Jackson.
  • 7%. The percentage of Democrats who opposed her confirmation.
  • 24%. The percentage of Republicans who supported her confirmation.

Have a nice day.

In an unprecedented move, U.S. police agencies are now sending protective gear to Ukrainian civilians. Governors in Iowa and Nebraska announced initiatives last week to donate police protective gear like helmets and vests to civilians in Ukraine. Nebraska is sending 550 pieces of protective gear while Iowa is sending 860 pieces. Those agencies are joining others in California, Ohio and Vermont already donating to Ukrainian civilians. CNN has the story.


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