Tangle - Ketanji Brown Jackson's judicial philosophy

Episode Date: April 11, 2022

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.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we're going to be discussing Ketanji Brown Jackson, which we have done a couple times before, but today's going to be a little bit different because we're going to be talking about her judicial philosophy. We've previously covered some stuff around her nomination and the hearing or qualifications, how she was treated, that sort of stuff. But today we're going to try and focus on what she's going to do for the court, what her nomination means to the court.

As always, before we jump in, we'll start off with some quick hits. First up, Donald Trump endorsed Dr. Mehmet Oz over David McCormick on Saturday night, officially throwing his hat in the ring in the Pennsylvania Senate race. Number two, Ukraine says the tortured bodies of 132 citizens were found in a suburban town outside Kiev. Russia appointed a new general known for a history of brutality to take central control of its war efforts in Ukraine. 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. Number four, two men were acquitted of a plot to kidnap Michigan Governor Gretchen Whitmer in 2020, a stunning defeat for the U.S. government who is prosecuting the case.

Number five, Twitter CEO Parag Agrawal announced that Elon Musk reversed his plan to join the social media company's board, but will remain its largest shareholder. Alright, that is it for our quick hits today, which brings us to today's main topic, Ketanji Brown Jackson. today, which brings us to today's main topic, Katonji Brown Jackson. On Thursday, Jackson became the 116th justice ever to be confirmed to the Supreme Court. The Senate voted 53-47 to confirm her nomination, with three Republicans, Senators Mitt Romney of Utah, Lisa Murkowski of Alaska, and Susan Collins of Maine 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 mark the first time ever that white men have not been a majority of sitting justices on the court. We covered Jackson's qualifications in a previous Tangle podcast, and we also covered her

hearings in a previous Tangle podcast. 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 is considered a more moderate conservative, and Justices Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and Clarence Thomas are generally considered staunch conservatives. 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 in liberals regaining some balance on the court they don't have today. Every justice 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 often cited as judicial pragmatism. 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 as a philosophy that avoids setting broad rules for future cases and offers a particular understanding of the limited role courts should play in a constitutional democracy. 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 analysis. During her confirmation hearings, Jackson declined to identify her judicial philosophy or any judge she looked up 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 the left, and it left a lot of people with questions about how she might rule. In a moment, we're going to hear some commentary from the right and the left on how they see Jackson's judicial philosophy, given her reluctance to name one. Then, my take. First up, we'll start with what the right is saying. The right had 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. Quinn Hillier 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 Jewish prudential 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 is a good sign, Hillier said. For example, Jackson regularly spoke about the greatness of this nation being evident and 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 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 different, namely that the original publicly understood meaning of the text, not the drafter's 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, Hillier said. against the use of international law to adjudicate U.S. domestic cases, Hillier said. She said she agreed with the questioner that the 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 Katonji Brown Jackson testified during her Senate confirmation 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 the 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-credential 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 intense, since his judicial philosophy was to examine the plain meaning of words, not to define 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 his 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. Originalism doesn't mean that even conservative justices always agree. Other factors come into 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 buzzsaw in there. Alright, that's it for what the right is saying, which brings us to 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 without being pigeonholed. In USA Today, Barbara McQuaid said Jackson made 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, McQuaid said. Perhaps she shares the belief of her former boss, Justice Stephen Breyer, in active liberty, a view he described in his book title that as, quote, recognizing the changing needs and demands of the populace, end quote. 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 in 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 Senator Ben Sasse, 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, McQuaid wrote. Jackson is not the caricature that some senators are trying to draw. She's 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 Adam 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 explicit or implicit 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 exasperating 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 that 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 vaucus 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 route 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 liberal outcomes. It turns out that how you apply these theories is just as important as whether you apply them, Stern said. 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-picked 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. Alright, that's it for what the right and the left are saying, which brings us to my take.

So I don't really have a horse in this race. I just find the whole thing fascinating. I mean, 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 legal methodology or philosophy has ushered in any clear defining historical shift, it's that adherence to originalism or textualism may no longer associate a justice 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 ways an act, as such language seems to imply. I think Jackson's judicial

philosophy sounds conservative because it is in line with the way conservative activists have become used to framing conservative judges. As many other experts have pointed out, the entirety of the current Supreme Court now favors the original public meaning of an enacted text, which tells us very little about how they will rule in the cases that come before the court. Textualism or originalism have won, quote-unquote, in the cases that come before the court. Textualism or originalism have won, quote-unquote, 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 in each justice's values. As for Jackson's impact, I think it's going to 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. All right, that is it for my take, which brings us to your questions. This one is an anonymous reader from California who said, what do you think happened during the missing seven hours and 37 minutes in the presidential log on January 6th, 2021? And do you think they were tampered with? Is there a coverup for the crime Trump more likely than not, quote unquote, engaged in? So anything I say here would be pure speculation. And it's worth noting that this story

may actually be a bit of a nothing burger. The seven-hour gap in the call logs from January 6th, which was first reported by the Washington Post and CBS, caused a lot of speculation that they were tampered with or erased to cover up some communications as the Capitol was being breached by rioters. But a CNN story that followed up on this, which got much less coverage, said the gap wasn't really mysterious at all. It just reflected Trump's typical phone habits. This is from the CNN story. He, meaning Trump, 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 overview 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 the 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 is an important question to answer. But it also means the alleged gap may not be the product of any tampering, but just a reflection of what method Trump was using to communicate with people outside the White House. All right, that is it for our reader question today. A quick plug, we have a poll in today's newsletter about how much you trust Tangle. There is a link to it also in the podcast description. It would be awesome if you click that link and took the poll or open the newsletter and click the link there to take the poll. It's really important and it could help

us out quite a bit. So please go do that if you haven't yet. All right, next up is our story that matters. President Biden is making his move, quote unquote, on gun regulation. Today, the administration is unveiling a new rule to curb so-called ghost guns, which are firearms made from kits that are bought online and make them very hard to track. He also named a new nominee, Steve Dettelbach, to lead the Bureau of Alcohol, Tobacco, Firearms, and Explosives. His previous nominee, David Chapman, was forced to withdraw. If Dettelbach is confirmed, he'll be the first full-time head since 2015. Now, Democrats are 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. All right, next up is our numbers section. The percentage of voters who said the Senate should confirm Jackson to the Supreme Court is 49%. The percentage who opposed her confirmation to the Supreme Court is 26%. One in four is the number of voters who said they don't know or didn't have an opinion of Jackson. Seven percent is the percentage of Democrats who opposed their confirmation, and 24% is the percentage of Republicans who supported it. Alright, last but not least, our have a nice day story. 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. Those agencies join others in California, Ohio, and Vermont that have been donating to Ukrainian civilians. CNN has a story about the donations. There's a link to it in today's newsletter. All right, everybody, that is it for the podcast. As always, you can find us right here, you know, 1230, one o'clock every day. And if you want to support our work, please go to the episode description, click a couple of those

links, give us a five-star rating, donate, become a subscriber. All of it helps. We greatly appreciate it. And we'll be back here same time tomorrow. Peace. Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle's social media manager, Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor Eichhorn, and music for the podcast was produced by Diet75. For more from Tangle, subscribe to our newsletter or check out our content archives at www.readtangle.com.