When George H. W. Bush got his first opportunity to pick a Supreme Court Justice, he (or perhaps his chief of staff, John Sununu) devised a stratagem for avoiding a Bork-level controversy: He would choose someone whose writings and record couldn’t be attacked, because they effectively didn’t exist. This “stealth nominee” would be immune to demagogic denunciations and thus would breeze through his confirmation hearings and Senate vote, after which he would be a reliable “conservative”, replacing “liberal” William Brennan.
The man chosen for this mission was Judge David Souter, recently appointed to the First Circuit Court of Appeals after several years of service on the New Hampshire Supreme Court. He came highly recommended by Sununu, a former governor of New Hampshire, and Senator Warren Rudman, the state’s occasionally conservative Republican Senator. Except for a reputation as a tough-on-crime prosecutor, a college thesis on Justice Oliver Wendell Holmes, Jr., and registration as a Republican, his biography was bare of clues to his judicial philosophy. He had not, during his few months as a federal judge, authored any opinions.
Nonetheless, both Right and Left were sure that they knew how the nominee would decide controversial cases. The president of the National Organization for Women yelped that, if confirmed, he would “end freedom for women in this country”, and the NAACP added its opposition. Ted Kennedy berated him. Conservatives rallied behind him. There was, however, no flare-up of opposing ideologies, because the fire lacked kindling. The Senate vote for confirmation was 90-9.
As it turned out, Justice Souter truly was a stealth choice – for the progressive view of law and the Constitution. Perhaps more attention should have been paid to his paper on Justice Holmes. By the end of his first term on the Court, the New York Times’s Linda Greenhouse, arbiter of left-wing judicial orthodoxy, was praising his “moderation” (i. e., adherence to the progressive party line).
The preceding memories have surfaced as President Biden’s Court nominee, Judge Ketanji Brown Jackson, progresses toward what is now an all but inevitable confirmation (“all but” to account for the slender possibility that Tsar Putin really will start a nuclear war). Progressive organizations have praised her in terms that would be overboard for John Marshall (not that they would ever praise Marshall). John Sununu called the Souter nomination “a home run for conservatives”, but he didn’t go so far as to laud the nominee’s “unique wisdom and perspective”.
The progressives’ confidence may be well founded. They presumably think that they have a window into Judge Jackson’s mind, and they could be right! Still, the evidence is shrouded in mists.
When asked at her confirmation hearing about her judicial philosophy, Judge Jackson sounded like someone who had clerked for Antonin Scalia rather than Stephen Breyer:
During her exchange with Senator Charles Grassley (R., Iowa), Jackson rejected the idea “that there is a living Constitution in the sense that it’s changing and it’s infused with . . . the policy perspective of the day.” Later, in response to Senator Mike Lee (R-Utah), she said that “in order to interpret provisions of the Constitution, we look to the time of the founding and ascertain . . . the original public meaning.” Later, she reiterated the claim, telling Senator Ben Sasse (R., Neb.) that “I believe that the Constitution is fixed in its meaning. I believe that it is appropriate to look at the . . . original public meaning of the words . . . because again, that a limitation on my authority.”
“Original public meaning” is one of the key concepts of the “originalist” school of Constitutional and statutory interpretation. It is anathema to progressive jurists. It’s possible, of course, that the judge was lying. The Democratic senators who will vote for her unanimously in a week or two must believe that she is. If they thought she was sincere, she wouldn’t get ten votes from their caucus. As one commentator put it, the hearings were “a rout for progressive pieties”.
There is, however, a more charitable interpretation. District court judges aren’t often called upon to delve into Constitutional theory, and Judge Jackson has never, so far as one can tell from her public record, explored the topic deeply on her own. Originalist ideas, hated though they are on the Left, are “in the air” among lawyers. The shibboleths are familiar, and they roll off the tongues of many people who haven’t given them much thought and don’t apply them in practice. It was, after all, self-identified “originalist” Justice Gorsuch who decided that the original public meaning of “discrimination on account of sex” was “discrimination on account of sexual practices”. Puns are the lowest form of wit and even lower as a canon of construction.
I don’t think that there’s a high likelihood that Justice Jackson will become a disciple of Justice Thomas. I do see a probability that she has no well-formed notions about how to read and take direction from the Constitution.
There are a couple of other, albeit faint and flickering, signs that Judge Jackson hasn’t fully absorbed progressive dogma.
One was her much derided response – “I’m not a biologist” – when she was asked to define “woman”. If she were truly “woke”, she wouldn’t have said anything so cisgenderist. Denying biology has become a central principle of progressivism. Again, she might have been lying, afraid to say outright, “A woman is someone who identifies as a woman – and people who believe in chromosomes and testosterone and estrogen are bigots who deserve to be canceled.” And, again, her progressive admirers evidently believe that she’s a liar. But they may be wrong.
Another sign will make sense, I fear, only to lawyers, but I’ll try to explain it anyway. (Feel free to let your eyes glaze over.) A bête noir of progressive jurisprudence is “contributory negligence”, the rule that someone who is injured can’t collect damages if his own actions contributed to his injury. Since it was first enunciated by Lord Ellenborough (“that immortal blockhead”, one of my liberal law school professors called him), it has been unpopular. It is now festooned with qualifications and exceptions and has been abandoned wholly or partially in many jurisdictions. Nevertheless, it endures. It is, for example, part of the law of the District of Columbia, where Judge Jackson sat on the bench, and she heard a case in which it played a leading role (Whiteru v. Washington Metropolitan Area Transit Authority, 480 F. Supp. 3d 185 (D. D.C., 2020), reversed and remanded, 25 F.4th 1053 (D.C. Cir., Feb. 11, 2022)). An intoxicated man fell between two walls in a Washington Metro station, lay there for several hours and died of his injuries. His parents sued the Metro, alleging that his death was due to Metro workers’ negligent failure to discover him in time for medical assistance to be of avail. Judge Jackson dismissed the action on the ground of the decedent’s contributory negligence.
A curt opinion by the District of Columbia Court of Appeals reversed the dismissal and sent the case back for further proceedings, pointing to a clearly defined exception to the contributory negligence rule that fit the circumstances. Conservative legal commentator Ed Whelan, in describing the case, suggests Judge Jackson’s failure to recognize that exception reflects poorly on her analytical skills. Maybe so (or maybe the plaintiffs’ lawyer overlooked it, and a busy trial judge didn’t have time to engage in independent research), but what is interesting to me is that she apparently exerted no effort to find a loophole in D.C.’s law of contributory negligence that would enable her to keep the plaintiffs’ case in court. It’s almost as if she didn’t think that Lord Ellenborough was such a blockhead.
All this not to say that Joe Biden’s stealth Justice will be the mirror image of Justice Souter, ironic and amusing as that would be, but her future career may be more interesting and less predictable than many observers anticipate.
Note: Lord Ellenborough was, in truth, a highly skilled jurisconsult, though hardly a model of judicial temperament. In Patrick O’Brian’s nautical novel The Reverse of the Medal, Captain Jack Aubrey comes before Ellenborough on a charge of stock fraud and suffers severely at his hands. The fictional trial is based on based closely the real trial of the naval hero Thomas Cochrane, over which Ellenborough presided.