On Tuesday, President Joe Biden’s nominee to the Supreme Court sounded like a textualist and an originalist.
Ketanji Brown Jackson stated, “I believe that the Constitution is fixed in its meaning,” and, “I believe that it is appropriate to look at the original intent, original public meaning of the words” when deciding a case. Some have argued that these statements show the triumph of originalism and textualism as the unrivaled approach to interpreting the Constitution.
Mark Joseph Stern counters that these victory laps misunderstand Jackson and the broader liberal response to originalism and textualism. Instead of surrender, Stern sees Jackson and the Left engaging in sly appropriation. They see that they can manipulate these tools to arrive at their preferred outcomes in cases and controversies. But Stern’s explanation undermines the judicial Left in two ways.
First, it is far from clear that judicial liberals can play such a manipulation game long-term. Consistently working within originalist and textualist paradigms means always thinking within an alien system of thought. While one might often see how to get to the justice’s preferred outcome, these approaches restrain a justice well beyond other methodologies. They also threaten to influence the justice subtly: Practice leads to habit, which leads to principle.
This chameleon act means not cultivating a judicial philosophy that truly aligns with the Left’s view of judicial power. Past liberal justices, such as William Brennan Jr., sought to critique originalism and textualism and articulate an alternative. Now, liberal justices seem content playing the visiting team, ceding home turf to their opponents.
Second, Stern’s description plays down too much the admission of defeat Jackson’s appropriation entailed. Leftists aren’t cultivating an alternative to originalism and textualism because they really don’t have one. “living constitutionalism” and other alternatives lost the jurisprudence battle. And so they should have.
Ultimately, originalism and textualism seek to fulfill the duty of a judge as described by Alexander Hamilton in “Federalist 78.” Hamilton wrote that the judge would exercise neither force nor will but “merely judgment.” A judge possesses no police to enforce decisions. More importantly for present debates, a judge cannot decide a case based on his or her own will. The will that matters is that of the sovereign people as expressed through their Constitution and the laws made by their legislative representatives in Congress and state legislatures. The judges exercise “merely judgment” when they set aside their own preferences and seek to apply the law as the lawmaker intended.
Originalism gives tools to understand this intent. Textualism places primacy on the written law as the place where such intent is binding on the judge and on everyone else.
In the end, the Left struggles with articulating an alternative to originalism and textualism because many seem to reject that a judge can do what Hamilton said a judge should. They seem to reject, and Stern’s article is a prime example of doing so, the notion that a judge can set aside his or her own policy preferences and carry out the will of another. In so doing, they reject the constitutional structure itself, seeing judicial power as yet another form of legislating and judges as a distinct form of lawmaker.
So, originalists and textualists should take heart that Judge Ketanjji Brown Jackson sings from the songbook of their approach. She likely will engage in loose, even fanciful usage of these methods. But so long as liberals are forced to speak, write, and decide this way, originalists and textualists will retain home-field advantage.
Adam Carrington is an associate professor of politics at Hillsdale College.
