The Supreme Court confirmation hearings are now a pointless activity. It is characterized in part by senators who ask rambling, often uncoherent questions and the nominees who squirmingly recite case law while trying to keep their legal views hidden.
Sometimes, however, the confirmation of judicial justices sheds some light on how they think. One such moment may have occurred in the Senate Judiciary Committee on Tuesday when Sen. Ben Sasse (R–Neb.) Ketanji brown Jackson was asked by Ben Sasse (R-Neb.) to give more details about her “judicial method.”
Sasse noted that “Earlier today you claimed that you do not believe that there is a living Constitution”. He also stated that you feel constrained by the text to interpret. So I feel I heard you partially pay tribute to originalism’s judicial philosophy.
Jackson did not disavow Sasse’s understanding of the question in his response. Jackson declared, “I think that the Constitution’s meaning is set.” Jackson said, “It’s appropriate to consider the original intention and the public meaning of words in order to make an assessment.” [a constitutional provision]Because, yet again, this is a restriction on my authority import my policy views. But there are times,” she continued, “when the meaning—unreasonable searches and seizures, due process, looking at those words are not enough to tell you what they actually mean. It is important to look at these words in historical context.
These words were a pleasant surprise for many originalists. Originalist methodologies are described as follows: [Jackson] is as good or better than a *Republican* nominee would have given until the past few years,” tweetedRandy Barnett is a Georgetown law professor and a prominent originalist scholar. She’s more than just a Senator Sasse ‘nod at Originalism. It was a large part of her stated method. While I cannot predict what the future holds, she did not need to make this claim to be confirmed.
Libertarian-minded originalists may also take heart in Jackson’s comments during an exchange with Sen. John Cornyn (R–Texas), who complained to her about the Supreme Court thwarting the will of the majority when it invalidated certain democratically enacted state regulations. Jackson calmly explained to him correctly that it was the nature of rights. A right is when regulation can be limited.