President Biden nominated Kentanji Brown Jackson to the Supreme Court on February 25, 2022 – taking Justice Breyer’s place. Jackson’s nomination is a historic moment indeed, as she will be the first black woman to sit on the highest Court in the U.S. if confirmed.
The Supreme Court has endured severe ideological oscillations in the last couple of decades; regardless, women have been added to the Court since 1981 when President Reagan appointed Sandra Day O’Connor as the first woman to become a Supreme Court Justice.
Next came the Notorious R.B.G. or Ruther Bader Ginsburg, in 1993 by President Clinton, the first Jewish woman to serve as a Supreme Court justice. And then the first Hispanic justice and third woman ever on the Supreme Court: Sonia Sotomayer, she was appointed in 2009 by President Barack Obama. Following Sotomayer was Elena Kagan, the second Jewish but fourth woman appointed to the Supreme Court in 2010.
Mrs. Jackson is a registered Democrat and will likely espouse left-leaning ideology and defend America’s liberties. Finally, giving those who lean left some breathing room to accept that the right-leaning dominance amongst the Supreme Court since 2016 will not be gaining the strength of a new conservative voice.
Or in Amy Coney Barrett’s words, the fifth woman to ever be appointed to the Supreme Court, appointed by President Trump in 2020, ¨̈This Court is not comprised of a bunch of partisan hacks. The media, along with hot takes on Twitter, report the results and the decisions. That makes the decisions seem result-oriented.¨
The Supreme Court public-approval ratings are at an all-time low, and the justices are concerned. Washington has been waffling through wacky ideas such as shorter-term limits or considering expanding the bench’s numbers. At this time, there is a particular frustration between citizens and the Supreme Court. As Barrett points out, there is a disconnect between how court information facilitates information to the general public. This digital communication tendency is just another extension of the political dysfunction prevalent in America right now.
Considering the Court’s accountability with public opinion, political scientists and professors Dr. Valdini and Dr. Clucas from Portland State University claim that “the role of information in the idea of accountability is in terms of its facilitation of evaluation, not of expression.” Ultimately, it is how the citizen essentially interprets the information provided by the Court, keeping in mind that the facilitation of such evaluation is pre-determined, i.e., the reports posted on Twitter – thus, a shaped, inevitable personal bias will ensue.
This phenomenon segues into how bias affects not only citizens but also justices. (Law is inherently fickle.) Lee Epstein, a law professor at Washington University who studies judicial behavior, comments on this matter. “They can talk about their legalistic analysis, but history and text can be read multiple ways, and their values are going to come into play – you can’t get around it.” On the contrary, and more interestingly enough, the Supreme Court has been undergoing an “originalist era” in recent years. An originalist refers to one who remains disciplined with the text of the Constitution when it comes to applying the law.
For example, an originalist will agonize over the detail of whether or not the material or law is written or referenced in the Constitution. The originalist neglects to ask oneself: “am I doing the right thing?” “Or is this the wrong thing to do?” There isn’t much apprehension involved; their judicial reasoning process resembles enforcing an austere mathematical formula.
If x + z are both variables of the Constitution, then y = an originalist. However, shouldn’t we be emphasizing the power of discernment? Especially when it is coming from the most powerful Court in the nation?
Instead, the originalist process affronts the highlight of judicial reasoning: critical thinking skills. Without considering any other factors, other than whether or not the text of the Constitution can support this notion is not only a vapid approach; it is also a form of overbearing judicial asphyxiation. How sustainable can a court be with personal, dynamic cases that only reserve solely Constitutional consideration? And yet when the originalist boasts their ruling, it is like they are frantically jabbering the variables into the TI-83 calculator and calculating the “originalist answer.”
Not surprisingly, as they suffer an imposter syndrome even to be a competent public official; disguised as a victim; indeed, it is rather very clever. The originalist judicial process is not considering the outliers, which poses a risk to the Court’s continuing vitality. For instance, when a justice responsibly leaves room to be inclusive of all modern factors, it embraces the effort to evolve with the changing country legally.
Consider the Third Amendment, for example; we don’t ever run into the problem of needing to quarter soldiers anymore, on American soil present day respectively. Now how do you think an originalist would view this amendment if it came into question in the Court of law? Archaic and superfluous? Or noble and nostalgic, even? Indeed, the latter. They would intend to “honor” the Constitution and uphold the amendment despite the paradoxical reality of modern-day America.
This is a lucid example of how our Founding Fathers, despite their precocious insight on several matters (i.e., checks and balances, protection preparation for future intellectual property), still leave us with the inevitable baggage of pursuing an active timeline in an ever-changing world; consistently trying to apply the determined text to a non-static realm.
The originalists suffer from tunnel vision when considering elements of the Constitution. It is a reductive process. Ultimately, the originalist is not a conclusion achieved after rewarding or creative thought. Frankly – the originalists glorify merely a computation.
Quite possibly, the most well-known originalist on the Court was Scalia. He proudly identified as an originalist. Barret refers to herself as an originalist as well. An accurate representation of being an originalist means that sometimes one may come to a conclusion they are not comfortable with.
Scalia experienced this in 1989 when he sided with the majority in a 5-4 decision holding that the First Amendment does protect flag burning in protest. ¨That was very painful for Justice Scalia,¨” reported Barrett. She and Scalia, two peas in an originalist pod, previously worked together in the late nineties, where she clerked for him. Later she shared during a lecture at the Rose Garden where Trump introduced her that – ¨Scalia’s judicial philosophy is mine.¨
In addition to originalism affecting the courts in the past years, so has religion. According to Eric Posner from the University of Chicago, rulings in favor of religion have increased from about forty-six percent under Chief Justice Earl Warren (1953-1969) to eighty-three percent today, with a dramatic increase under the Roberts court (2005-present).
Before the eighties, conservative Catholics and white evangelical Protestants never mixed, but now ever so increasingly are these parties more likely to share the same stance on wedge issues like abortion and gay rights. According to David Campbell, a political science professor at Notre Dame, is one of the main reasons Barrett, a stout Catholic, received such strong support from the white evangelicals.
Most pointedly, and more recently, on December 1, 2021, the Supreme Court had its day of oral argument in a landmark abortion case, Dobbs v. Jackson Women’s Health Organization – a pending case on the constitutionality of a 2018 Missippi state law banning abortion after the first fifteen weeks. The first time in three decades where the petitioners bluntly requested to overturn Roe v. Wade, the 1973 case that legalized abortion, an issue that ensued under Burger’s Court.
Roe v. Wade’s decision was 7-2, where Chief Justice Warren E. Burger and six other Justices voted for “Jane Roe. “Whereas, Justices Rehnquist and White voted against it. Indicating, yet again another ideological oscillation the Supreme Court has endured compared to Warren’s or Robert’s Court.
Roe v. Wade was affirmed later on in 1992 in Planned Parenthood v. Casey. Terrifyingly enough, both of these abortion precedents are at risk of being overturned because of the Dobbs v Jackson Women’s Health Organization case from 2021.
The current risk of losing the abortion precedents is why Jackson’s presence, a left-leaning voice, on the Court is such a big deal right now. We’re all waiting to hear what she will have to say. Even though liberal justices on the bench right now are outnumbered, it wouldn’t make a difference even if Jackson is confirmed and she votes to uphold Roe v Wade.
These are dismal times for the Supreme Court. Nevertheless, the liberal justices: Kagan, Sotomayer, and Breyer, remained a tenacious composure in Court. With distinctive points, like arguing that eradicating current abortion access from America would offend the principle of stare decisis.
Stare decisis refers to the legendary process of precedent-setting where judges essentially recognize one particular, prodigious, and relevant case that rules as the blueprint.
It translates to “to stand by things decided” in Latin. Examples of historic precedents include Marbury v. Madison (established judicial review in 1803), Plessy v. Ferguson (established separate but equal doctrine in 1896), and lastly, Brown v. Board of Education (enforcing desegregation in public schools in 1954).
As for Kagan’s argument, she challenges that Roe is so clearly embedded, at an institutional level, at this point that overturning it would be disproportionately disruptive to society. “There’s been fifty years of water under the bridge, fifty years of decisions saying that this is part of our law. This is part of the fabric of women’s existence in this country.”
Sotomayer argued more to the defense of stare decisis, “Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts?
To which, Barrett responded, “it’s not an inexorable command, and that there are some circumstances in which overruling is possible.” Further to Barrett’s perspective, Roe v. Wade as an actual legal precedent lacks credibility, according to Barrett, as she shared with Senator Amy Klobuchar.
Or, in Barrett’s words, she doesn’t see Roe as “a super-precedent¨. In contrast, the Marbury v. Madison, as mentioned earlier or Brown v. Board of Education, are so established that they are considered legitimate as a precedent, in Barrett́’s mind. Further, Barret refers to 1992 when Casey upheld Roe, where the Court viewed stare decisis differently, as it had a pronounced interest in gauging public opinion. i.e., ̈a different conception of stare decisis insofar as it very explicitly took into account public reaction.”
Interestingly enough, considering the approval ratings are at an all-time low, the present-day Supreme Court is keen on absorbing opinion and maintaining legitimate public accountability.
Eloquently put by Dr. Valdini and Dr. Clucas, co-authors of ‘The Character of Democracy’ and both political science professors at Portland State University, claim that “accountability refers to the citizen’s awareness of policy results, as well as those political actors responsible for said results.”
Sustaining the Supreme Court’s theory is simply ambivalent and cavalier regarding their curiosity to know public opinion, one critical factor would be absent: reform. Yet, discussions of term limits and increasing the bench number on the Court have occurred.
Ultimately, this means that Barrett’s generation defense, “a different conception of stare decisis insofar as it very explicitly took into account public reaction,” is based on a timeline in 1992 specifically.
The grounds she is basing her argument on are fluid – and therefore moot. Barrett claims that the Court́’s prerogative was more reliant on public reaction in 1992- with Casey; however, plenty of public opinions affected Dobbs in 2021.
Suppose she has no more poignant points to make other than the different pressures of public opinion at their respective times, twenty-nine years apart. In that case, she is merely describing the nature of the High Court, where there is a ubiquitous and fluctuating public opinion. Regardless of the time, there is perpetual paranoia on behalf of the Court of how public opinion will unfold according to what the Court decides; this is why Barret’s point is moot.
Ironically enough, the conservative Justices’ lack of willingness to embrace the tradition of stare decisis exposes the short reach of their limited practical reasoning. Instead, it shows unfounded spite and bigotry over a wedge issue that will always be dichotomous, though it doesn’t have to be so extreme, the way it is evolving to be.
There is no need to completely eviscerate the abortion precedents that have been in place for fifty years, roughly, already. Yet, the conservative justices remain doe-eyed, acting as though “their hands are tied.”
Indeed, such educated and experienced individuals of the highest Court in the nation can make practical, erudite discussions. Both parties ought to utilize creativity to find alternative solutions to reach a cooperative agreement.
One of life’s greatest privileges is the liberating choice to form one’s response. Yet, the conservative’s responses to upholding abortion are, in actuality, presented with such malice and animosity that one forgets that democratic ideals were ever once proposed. i.e., “God is going to punish you, murderer!¨ a man yelled through his megaphone outside the Court while he stood on the marble steps.
Who is one person to decide that another person’s life will be threatened or vilified? A proponent of abortion herself, Pramila Jayapal, a Democratic U.S. representative from Washington State, shared that she is “one of the one in four women in America who have had an abortion. Terminating my pregnancy was not an easy choice, but it was my choice.”
Moreover, judicial review refers to the Court’s power to evaluate and change written law by reviewing its constitutionality based on stare decisis, otherwise known as precedents. As Dr. Valdini and Dr. Clucas claim, “the presence of strong judicial review triggers clear consequences for democratic ideals.”
In other words, this notion explains the high emotions and political behavior seen outside the Court on February 25, 2021. It is vital to distinguish the word “consequences,” as it does not necessarily carry a wholly negative implication. Instead, the claim is that there is a guarantee that definitive outcomes, subjectively excellent or bad, ensue when the Court strikes down on law or upholds its constitutionality, i.e., judicial review.
Alas, America is one of the most convincing examples of solid judicial review when considering the high courts of the world. Go figure, fealty to the Founding Fathers.
Now the Court is stacked with conservative Justices including Alito, Kavanaugh, Thomas, Gorsuch, and Barrett. Then there is Chief Justice Roberts, who usually leans right, and the liberals, including Kagan, Sotomayer, and hopefully soon, Jackson. If Jackson’s nomination is confirmed by the Senate (must pass by simple majority), then her presence at this time with the Supreme Court will be crucial.
Remarkably enough, even though the conservative voice has more power with the Supreme Court at the moment, many conservative adherents play up a floundering flailing fish act right now. As though their religious freedom is on the brink of extinction, along with beloved gun rights. Best said in political theorist Teddy Kaczynski’s words published in 1971, ̈The conservatives are fools: They whine about the decay of traditional values, yet they enthusiastically support technological progress and economic growth.̈
Conservative’s paradoxical thinking brings to light the futility of originalism when applied to the courts. Yet, here now is this lengthy conservative legal movement sustaining and even “ḧand-picking¨ Barrett to reverse abortion precedents in the country still may not be able to reach a 5-4 conservative vote.
Kelly Shackleford, the head of First Liberty Institute, said, “if the justices can’t get it right with these abortion cases, what’s the use of a conservative legal movement that follows originalism?¨ However, the originalists/plaintiffs follow suit in their argument and state that “nothing in constitutional text, structure, history, or tradition supports a right to abortion.”
As David Fontana, a professor from George Washington University, pointed out, “Barrett is the center of the story – either she’s the woman who voted to overturn Roe v. Wade or she doesn’t.¨ Or, as another veteran court observer, Mary Ziegler, a law professor at Florida State University, with expert knowledge in abortion law, said, “Barrett didn’t seem as obviously ready to get rid of Roe as some of the others….But if you were betting and oral argument was the evidence you had, it would sure look like they had the votes to overturn it.”
However, one can be comforted knowing that Chief Justice Roberts attempted to see the situation differently, as he has done before; perhaps there is a clever provision to sustain the Mississippi law without annihilating Roe.
Even more optimistically, Senate Majority Leader Chuck Schumer expressed his confidence that Jackson will receive bipartisan support and receive a Senate confirmation, as her track record boasts three successful Senate confirmations already.
Further, Schumer reported, “This historic nomination of Judge Jackson is an important step towards ensuring that the Supreme Court reflects the nation as a whole. As the first Black woman Supreme Court justice in the Court’s 232-year history, she’s going to inspire countless future generations of young Americans.”
Jackson shares her gratitude for the nomination with poise and grace. “Among my many blessings, and indeed the very first is the fact that I was born in this great country … The United States of America is the greatest beacon of hope and democracy the world has ever known.”
On that bright note, let’s hope the future generations heed the Court’s decisions and information responsibly to the point where public opinion remains pertinent and citizens remain productively engaged. May there be hope for a world that indeed can exist, where fundamental functions of democracy come alive genuinely and effectively. Lastly, may those of opposing ideologies learn to ask questions first, embrace their child-like curiosity, and resist the impulse to criticize ignorantly. May there be hope.