Ketanji Brown Jackson’s Heterodox Critiques of SCOTUS’s Right Wing
“Our interpretative task is not to seek our own desired results (whatever they may be),” Jackson argued. “And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress’s aims does exactly that—and no more.”
Most justices would have probably stopped there, but Jackson went further to critique textualism as a whole. “By ‘finding’ answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as ‘textual’ inevitabilities,” she explained. “So, really, far from being ‘insufficiently pliable,’ I think pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.”
This bluntness isn’t without precedent among Supreme Court justices. Sotomayor and Justice Elena Kagan have both disparaged conservative legal philosophies and goals in their own terms, albeit less directly. (Sotomayor, who joined most of Jackson’s dissent in the ADA case, explicitly did not join her footnote on the majority’s “desired outcome.”) While those examples can be found sporadically throughout their tenures on the bench, Jackson’s approach increasingly looks like the norm. All of the cases that I mention in this article come just from this term.
To that end, it more closely resembles the scorn that the court’s conservative justices once heaped upon the court’s liberal and moderate majorities. Justices like Antonin Scalia and Clarence Thomas used to argue frequently in defeat that the majority was not just wrong as a matter of legal reasoning, but that its entire jurisprudence was a vehicle for their personal policy preferences on abortion, LGBT rights, criminal justice, and so on. Now the worm has turned.
