Judge Jackson on the Stand

Is Ketanji Brown Jackson a pragmatist judge who will tack toward the center? Or is she actually a Trojan horse for leftist radicalism?

Some on the Left clamored for the next Supreme Court Justice to be a “truth-telling,” hardline dissenter, and on the eve of Biden’s pick, they rallied around Ketanji Brown Jackson. Yet, the former Breyer clerk touted her pragmatism in her introductory press conference. So, which is it? Is Ketanji Brown Jackson a pragmatist judge who will tack toward the center? Or is she actually a Trojan horse for leftist radicalism?

Senators on the Judiciary Committee ought to ask questions designed to get Judge Jackson on the record as to whether or not she affirms the most radical constitutional interpretations advanced by the progressive wing of the Court (not only by Justice Sotomayor but also the extreme positions taken by the occasionally pragmatic Justices Breyer and Kagan). And they also ought to accept progressives’ invitation to apply the test of “truth”—particularly, scientific truth. The following are some questions that should be asked.

The Founders believed religious freedom was the first freedom and codified it as such in the First Amendment. In a recent landmark case, the Court held that so-called Blaine Amendments, which prohibit state aid to religious schools just because they are “religious,” violate the Constitution’s guarantee of free exercise of religion because they deny otherwise generally available benefits to eligible recipients simply because of their religious character. Do Blaine Amendments unconstitutionally discriminate against religion? Or would you agree with Justices Breyer, Sotomayor, and Kagan that, despite being born of anti-Catholic bigotry, Blaine Amendments are constitutional? 

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As a follow-up to the previous question: What does the Constitution mean by the term “religion”? Please illustrate the definition with one example of a law that does and one example of a law that does not violate the Establishment Clause. If you define it very broadly to be maximally inclusive, then isn’t it true that virtually any policy could be construed as advancing religion if you take a strict separationist approach? Or if you define it too narrowly, isn’t it true that some religious minorities would be excluded from the protection of the Free Exercise clause? Or, would you define religion in the way that Justice Potter Stewart once defined pornography as “I know it when I see it”? But, if so, isn’t that a radically subjective standard that invites the justice to legislate her own preferred policies from the bench?

The Fifth Amendment to the Constitution of the United States guarantees that property shall not be taken for public use without just compensation because the Founders believed that property was a fundamental right essential to liberty and the pursuit of happiness. Do you believe that when government physically appropriates real property, as when it took 30 percent of the raisins of the small, family-owned Horne farm, that a taking has occurred, which requires the government to pay just compensation? Or would you agree with Justice Sotomayor that such an appropriation is not a taking?

Because one’s fundamental rights can be threatened by the rapaciousness of others, the Founders believed there was a fundamental right to self-defense. Would you agree with the Founders that self-defense is a fundamental human right?  

The Court has interpreted the Second Amendment as codifying the preexisting right to self-defense, which guarantees the fundamental right of the people to keep and bear arms. Do you believe the Constitution protects a fundamental right to keep and bear arms? If so, what do the words “bear arms” mean, in your view? Please give specific examples. Is it confined to carrying one’s firearm from one’s bedroom to one’s bathroom? Or does it include a right to carry outside of one’s home?

Or would you agree with Justices Breyer and Sotomayor that the Constitution does not protect a fundamental right to keep and bear arms? If so, can you explain why you believe Americans’ constitutional rights are secure when only the police have guns?

Criminal justice is supposed to check rapaciousness through the threat of and enforcement of punishment, but the Fifth and 14th Amendments guarantee that no person shall be denied life, liberty, or property without due process of law. And the Eighth Amendment forbids cruel and unusual punishments. In United States v. Tsarnaev, the Court recently reinstated the death penalty for confessed Boston Marathon Bomber and jihadist Dzhokhar Tsarnaev. As a matter of principle, do you believe that the Constitution ever permits the federal government to impose the death penalty as a punishment for jihadist domestic terrorism? Or would you agree with your former boss that the death penalty is, necessarily, always cruel and unusual punishment?  

You have said that race would play no role in the kind of judge you will be. Does this mean that you understand your role to be a colorblind judge applying a colorblind Constitution? How would you compare and contrast your role as a judge with university admissions officers who, in the name of “diversity,” give preferential treatment on the basis of skin color?

The absolutist kings of England from James I forward arrogated to themselves legislative powers that were exercised through various regulatory edicts. Despite the Founders’ rejection of monarchism, this sort of executive power lives on today in administrative rule making under the fig leaf of “intelligible principles” derived from congressional legislation. Since you are on the record stating that “President are not kings,” do you agree that Congress has the unique authority to legislate binding rules of conduct, exclusive of the Executive?

In some pandemic-era cases, dissenting justices have intimated and openly suggested that when the Court has struck down some Covid-19 regulations as violative of the Constitution, it has betrayed its disbelief in “science.” Do you believe in science?  

As a follow-up to the previous question: Scientifically speaking, is a 15-week unborn entity inside of a pregnant woman merely a part of her body? If yes, would that not lead to scientifically absurd conclusions, namely, that the pregnant woman has two sets of DNA, two heads, four eyes, four arms, four legs, etc.? If not, then what is the point at which the admittedly distinct, genetically-human being, whose life 95 percent of biologists believe begins at conception, deserves equal protection of the laws? Or, if you don’t believe that judges have unique insight into the correct answer to this question, then why shouldn’t American citizens, rather than five judges on the Supreme Court, be able to deliberate and decide this question for themselves at the State level?

Another follow-up about your belief in science. What role should science have in a case alleging that the male-only draft unconstitutionally discriminates against men? Would you agree that the biological criteria for maleness and femaleness is the correct scientific standard for determining whether a person who is required to register for the draft is indeed a man and a person who is not required to register for the draft is indeed a woman?  

In closing, can you name one example during your time as a judge in which you interpreted the law to require an outcome that you personally and/or morally disagreed with? Or have you personally agreed with the legally required outcome of every opinion that you have authored? If the latter, do you consider yourself incredibly lucky and do you think that, if confirmed, you’ll continue to be that lucky for the next thirty years?  

And, finally, if so, could you please help me fill out my busted, second chance March Madness bracket?

[Photo Credit: Anna Moneymaker/Getty Images]

  • Kody W. Cooper

    Kody W. Cooper is UC Foundation Assistant Professor of Political Science at the University of Tennessee at Chattanooga. He is the author of Thomas Hobbes and the Natural Law (University of Notre Dame Press, 2018) and coauthor of the forthcoming book The Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the American Founding (Cambridge University Press).

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