B2 EZ BD THE WASHINGTON POST.SUNDAY, MARCH 27 , 2022
one step forward, forces are coalescing to
ensure that we take two steps back. And,
based on her measured, steady performance
this week, Justice Jackson will have a front-
row seat for all of it.
When pressed about her views of unenu-
merated rights this week, Jackson insisted
that she would follow the court’s precedents.
In so doing, she was modeling those who
came before her, including from in the
conservative wing. In his 2005 hearings,
then-Judge Samuel Alito assured the commit-
tee that he, too, would uphold past prec-
edents, noting that the principle of stare
decisis, which requires courts to follow past
decisions unless compelling reasons warrant
a departure, is “important because it re-
flect[s] the view that courts should respect
the judgments and the wisdom that are
embodied in prior judicial decisions.” Like-
wise, before his 2018 hearings went off the
rails with allegations of sexual assault, then-
Judge Brett Kavanaugh agreed, in the face of
skeptical glares from pro-choice protesters
clad in red handmaiden robes, that Roe and
another abortion ruling, Planned Parenthood
v. Casey, were binding precedents that jus-
tices were obliged to follow.
Despite these assurances, however, both
Alito and Kavanaugh have voted to limit
abortion rights since they were sworn in. At
the December oral arguments in the Missis-
sippi challenge, both Alito and Kavanaugh
signaled where they stood on the question of
upholding the right to abortion. Echoing a
frequent conservative argument, Alito lik-
the court’s 2015 decision legalizing same-sex
marriage, pressing her as to whether the
decision was properly decided. Sen. Marsha
Blackburn (R-Tenn.) took her turn at the
microphone to criticize Griswold v. Connecti-
cut, the 1965 case that legalized contraception
use. Even before the hearings, Sen. Mike
Braun of Indiana suggested that Loving v.
Virginia, the 1967 decision legalizing interra-
cial marriage, should have been left to the
states to comport with a broader view that
the court shouldn’t back unenumerated
rights.
All this underscores that abortion was
never the conservatives’ endgame. It is mere-
ly a way station on the path to rolling back a
wide range of rights — the rights that scaffold
the most intimate aspects of our lives and
protect the liberty and equality of marginal-
ized groups.
The timing could not be more ironic. The
advent of the first Black woman on the court
will probably coincide with a battle to
overturn some of the very gains that made her
historic ascent — and indeed, much of her life
— possible. Jackson came of age in the wake
of Griswold, Roe and the “privacy revolution”
these decisions spearheaded. Indeed, the
image of her husband, Patrick, sitting behind
her wiping away proud tears, is a poignant
reminder of the real-life impact of the court’s
decision in Loving v. Virginia. As Sen. Cory
Booker (D-N.J.) reminded his colleagues on
Wednesday, the Jacksons’ marriage would
have been impossible only a generation ago.
And perhaps that is the point. As we make
JABIN BOTSFORD/THE WASHINGTON POST
rights that are not explicitly articulated in the
Constitution’s text. These include the right of
parents to raise their children in the manner
of their choosing, the right to procreate, the
right to use contraception, and the right to
marry the person of your choice. The consti-
tutional protections for intimate life that we
take for granted proceed from the court’s
recognition of rights that are implied from,
but not explicit in, the Constitution’s guaran-
tee of liberty.
In focusing on these rights, Republican
senators are giving us a glimpse of the culture
war clashes to come. There are already
warning signs — including the Texas directive
that prohibits parents from legally providing
gender-affirming treatment and therapies to
their children, as well as various state
officials’ questioning whether the Constitu-
tion sanctions contraceptive use. Indeed,
some Republican senators have gestured
toward these future conflicts. In his questions
to Jackson, Sen. John Cornyn (R-Tex.) repeat-
edly sought her views of Obergefell v. Hodges,
JACKSON FROM B1
The hearings showed
what the next legal
battles will be after Roe
U.S. Supreme Court
nominee Judge
Ketanji Brown
Jackson testifies on
Wednesday, the
third day of her
confirmation
hearings before the
Senate Judiciary
Committee.
ened Roe to Plessy v. Ferguson, the infamous
decision that enshrined the principle of
separate but equal until it was overruled by
1954’s Brown v. Board of Education. Ka-
vanaugh mused that overruling Roe and
Casey would merely return the question of
abortion to the states — a “neutral” settle-
ment of a divisive issue.
The disjunction between the nominees’
assurances at their confirmation hearings
and their work as justices should not be
surprising. Both Alito and Kavanaugh are
products of a conservative legal movement
that has railed against “unenumerated
rights” and has insisted upon the primacy of
“text-based” protections for religious liberty
and gun rights. When she joins the court as a
justice, Jackson will be part of a hobbled
liberal bloc that lacks sufficient votes to stem
the rising conservative tide.
The Republican senators’ questions reflect
the conservative sensibilities that have
shaped the court and will undoubtedly shape
the post-Roe landscape in the coming years.
The senators’ dogged emphasis on unenu-
merated rights at the sunset of Roe should
worry us. Rather than basking in the success
of unraveling almost 50 years’ worth of
abortion precedents, the conservatives are
gathering their resolve. The next set of battles
will determine whether we as individuals will
control the most intimate aspects of our lives.
Twitter: @ProfMMurray
Melissa Murray is the Frederick I. and Grace
Stokes professor of law at New York University.
professing loyalty to original meaning begs
the critical questions. Bork, for instance,
claimed to have found an originalist justifica-
tion for Brown v. Board of Education: The
14th Amendment, he argued, enshrined the
principle of “no-state-enforced discrimina-
tion.” By contrast, many conservatives in 1953
insisted, plausibly enough, that most ratifiers
of the amendment would not have thought it
banned school segregation, in particular. The
choice between these different levels of
abstraction requires moral argument.
This is precisely why supposedly original-
ist justices, in hard cases, constantly appeal to
contemporary views of justice to fix the
meaning of vague, general or ambiguous
texts. For example, in recent years, conserva-
tive justices have appealed to largely ahistori-
cal libertarian ideals and concerns when
interpreting the scope of the First Amend-
ment’s guarantee of freedom of speech, the
extent of Congress’s ability to delegate rule-
making authority to the executive branch and
the level of control the president must have
over removing federal officials from office.
That flexibility helps to explain how even
some progressive, and libertarian, scholars
have come to embrace originalism — which
was once associated with cultural conserva-
tives. Yale’s Jack Balkin, for example — a
much-cited scholar who advocates “living
originalism” — reads constitutional texts at a
sufficiently high level of generality to encom-
pass abortion rights. And Northwestern’s
Steven Calabresi, a founding member of the
Federalist Society, reads constitutional texts
at a sufficiently high level of generality to
encompass same-sex marriage. Both scholars
deny that they are authorizing judges to
change the constitutional meaning. Rather,
they claim to offer entirely faithful arguments
about what the original meaning has always
been; the fixed meaning, they argue, has
always embodied abstract principles that
permit legal outcomes congenial to contem-
porary morality. But all this makes risible the
frequently heard originalist claim that the
method promotes the stability and durability
of constitutional meaning over time.
Against this backdrop, Jackson’s com-
ments this past week are best read as the
self-defeating triumph of a vacuous form of
originalism. Lawyers of any and all substan-
tive views can agree with its core slogans, it
seems, but those slogans are banalities that
racy and popular sovereignty. Originalism
promised to do all this by ensuring judges
could not de facto amend the Constitution by
changing the meaning of text through inter-
pretation; its meaning would not change with
every personnel shift on the court. Instead,
judges were to find the original meaning fixed
at the time the constitutional text was ratified
and apply it to current legal disputes, and not
rely on considerations of morality to aid their
interpretation. In a famous 1989 law-review
article, Scalia argued that originalism’s main
virtue was that it helped judges avoid the
“main danger in judicial interpretation of the
Constitution” — that is, mistaking “their own
predilections for the law.”
Originalists have been notably scathing
about the Warren court’s identification of a
“right to privacy,” for example — supposedly
implied by other constitutional provisions —
which led, first, to the striking down of a state
ban on contraception and, later, to the
rejection of laws banning abortion. This, they
said, was a classic case of the imposition of
modern “predilections” onto a text that was
silent on these questions.
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 this
aspiration was possible in any event. The
scholar Ronald Dworkin, for example, argued
that originalists could not escape drawing on
political morality whenever the language in
constitutional text is unclear, ambiguous or
capable of being read at different levels of
generality (which is often). Insisting that the
meaning of, say, the 14th Amendment’s
“equal protection of the laws” has been fixed
at a historical point in time merely poses,
rather than answers, the crucial question of
how best to faithfully interpret that meaning.
Do we apply provisions to a contemporary
dispute exactly as people at the time would
have applied those provisions, or do we
instead focus on respecting the broad princi-
ples they adopted, applying those principles
in light of our current circumstances? If we
do rely on broad principles, how do we apply
them to changing circumstances without
stretching them so far we end up replacing
them?
When making such choices, there is simply
no escape from moral and political argument;
I
n her 2010 confirmation hearing, Justice
Elena Kagan famously quipped that “we
are all originalists” while affirming her
close adherence to constitutional text and
structure. Judges, said Kagan, ought to take
seriously and apply “what they [the framers]
say, what they meant to do.” And this week,
quite remarkably, President Biden’s Supreme
Court nominee, Judge Ketanji Brown Jack-
son, told senators that her judicial philosophy
centered on adhering to the text of the
Constitution at the “time of the founding and
what the meaning was then,” looking for the
“original public meaning,” and trying to
determine what the text “meant to those who
drafted it.” Jackson’s statements were im-
mediately heralded by liberal and conserva-
tive legal commentators alike as a victory for
originalism and a compelling example of its
dominance as the leading theory of constitu-
tional interpretation in the United States.
But if this is a victory for originalism, it is a
Pyrrhic victory of epic proportions. 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. It will become clear — even as the
justices resolutely deny it — that all the real
work, in hard cases of constitutional interpre-
tation, is done by implicit or explicit commit-
ments of political morality. Moreover, the
Pyrrhic victory for originalism will be a defeat
for the nation at large, diminishing transpar-
ency about the real grounds of judicial
decisions and exacerbating cynicism about
constitutional law.
Originalism’s early proponents — includ-
ing Edwin Meese III, Judge Robert Bork and
Justice Antonin Scalia — fought for it under
the banner of curbing judicial discretion and
promoting goods like the rule of law, democ-
If every judge is an
originalist, originalism
i s an empty legal theory
Ketanji Brown
Jackson is the
latest liberal
jurist to
embrace the
term, say law
professors
Conor Casey
and Adrian
Vermeule
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.
More broadly, this Pyrrhic victory is an
outright defeat for society at large. Wide-
spread embrace of a contentless originalism
distorts and obfuscates how Supreme Court
decision-making works. If justices of all
ideological stripes insist that they are en-
gaged in a purely neutral and technical
exercise, consulting the Federalist Papers,
ratification debates and aged dictionaries,
when they are in fact drawing on consider-
ations of political morality, the real grounds
of decision in hard cases are papered over.
This pretense of amoral technique detracts
from public oversight if the public is fooled,
and risks widespread cynicism if the public
isn’t fooled.
To be sure, candor about the moral
grounds of decision in hard cases is merely
the prelude to difficult substantive argu-
ments about what principles of political
morality the Constitution embodies. Views
that put liberty and individual autonomy
front and center are only one possibility.
Elsewhere, we have laid out a different
approach, based on the classical legal tradi-
tion — rooted in commitment to human
flourishing and “the common good.” Judges
will always disagree, to some extent, about
how the Constitution can best be read as a
morally attractive document — but these are
the grounds on which the debates should
proceed.
In contrast, the present widespread em-
brace of originalism — by judges of every
ideology — is a kind of systemic falsehood,
and falsehoods are no foundation on which to
anchor the most sensitive and far-reaching
questions of legal interpretation in a political
community. The pseudo-victory of original-
ism, on display at this week’s hearings, is
society’s genuine loss.
Twitter: @Caseyco231
@Vermeullarmine
Conor Casey is an assistant professor at the
University of Liverpool School of Law and Social
Justice. Adrian Vermeule is the Ralph S. Tyler Jr.
professor of constitutional law at Harvard Law
School. His most recent book is “Common Good
Constitutionalism.”
