Is Ketanji Brown Jackson’s Job to Create New Rights out of Thin Air? – Opinion

The reaction to Senate confirmation hearings for Ketanji brown Jackson has been centered on her responses to questions about sentencing, women’s rights, when life starts, and what she was doing to them. We have covered those pretty extensively ourselves.

There are other problems that can be troubling for people who want to see the Supreme Court become more restrained and stop judicial activism. One of those is the ability of the Supreme Court to create new rights that don’t exist anywhere in the Constitution (much like the Court did in Roe V. Wade).

Under all the talk of child pornography is this questioning line from Senators John Kennedy Marsha Blackburn John Cornyn John Cornyn Ben Sasse and Mike Lee.

Jackson stubbornly avoided answering questions regarding unnumerated right, in spite of being asked many times. Conservatives are concerned that progressive judges will retake the majority of the bench and create new rights by interpreting other rights in a broad way. This isn’t some made-up concern, either. Biden explicitly said that’s what he wants from his pick.

Perhaps the President is more knowledgeable about the Supreme Court nominations process then any Washington politician. For eight years, he was the chairman of the Judiciary Committee and oversaw six Supreme Court confirmation hearings.

Biden spoke out Tuesday about what his team and he will be looking for in the nominee. Speaking to reporters, Biden said he views the Constitution as a document that is “always evolving slightly in terms of additional rights or curtailing rights.” Referring to notes on a long, white card in his hand, Biden explained he is looking for a nominee with “character” who is “courteous to the folks before them,” treats people “with respect,” and has a judicial philosophy that suggests there are “unenumerated rights in the Constitution.”

This type of rhetoric was clearly heard by the Republicans of the Senate Judiciary Committee. They had several questions for Jackson and she declined to answer them all. Cornyn started it all.

CORNYN. Is it your concern that the court will assume the task of identifying unnumerated rights? It creates an entirely new right declaring anything that could conflict with it unconstitutional. It creates an environment for people who hold traditional beliefs, such as marriage. They will be stigmatized and criticized for not agreeing to the new orthodoxy.

JACKSON I’m not in a position to comment about either my personal views or whether or not…

Kennedy dug deeper, asking where judicial restraint plays into the court’s creation of these brand new rights.

KENNEDY: OK. Where does judicial restraint begin with fundamental rights? Let’s take the ninth amendment, OK? Is it true? It’s something you already knew, because we talked about it before.

JACKSON: Well, it says that, it indicates that there are rights that — the fact that there are some enumerated rights in the Constitution doesn’t mean that there aren’t others.

KENNEDY: How can we determine which others are there?

JACKSON – I believe the Supreme Court did not find any additional constitutional provisions arising from this specific provision.

KENNEDY – Could they be?

JACKSON: I can’t speak to that, Senator.

KENNEDY: I mean, it’s possible, right, if they get five votes, right?

JACKSON

KENNEDY

JACKSON: Senator, I can’t speak to a hypothetical about whether or not it would be a prudent course of action for the Supreme Court to hold that there were other rights in the Ninth Amendment that’s…

It was Tuesday. Kennedy continued asking her questions on Wednesday.

KENNEDY? Then, how can you help or explain what I am seeing. This doctrine has been judicially constructed and there is no textual foundation in the Constitution, nor in a statute entitled substantive due process. And through substantive due process, our Federal Courts let’s just narrow it down the United States Supreme Court has given itself the authority to read into the Constitution unenumerated, unmentioned rights.

You can’t just read the Constitution and think, “Well, freedom of speech already exists, but they are not mentioned, unnumerated.” Isn’t that making policy?

JACKSON: Senator, the Supreme Court interprets revisions of the Constitution and there are provisions of the Constitution that require interpretation because they don’t just on the text in every circumstance answer the question before the Court. What does due process mean? The Supreme Court also has due process as a word in its Constitution text. Now the question is: What is it? The Supreme Court — oh, sorry.

KENNEDY: I’m just going say…

JACKSON: Go ahead.

KENNEDY: … but when they do it, aren’t they making policy?

JACKSON: Well, Senator, the role of the judiciary is to interpret the law to the extent that somebody argues to the Court that there’s been a violation of the Due Process Clause of the Constitution. It is within the role of the Court to determine what that means, whether the person is correct that what happened with respect to their case violated the Due Process Clause, and so there’s an interpretive function that is a part of the judicial function.

One year ago, she stood for election before the Senate to represent the District of Columbia. Circuit she stated that she was not qualified to judge constitutional cases and therefore could not give a clear view of how the Constitution should be understood. However, she reinforced her claim this week that she had the authority as a judge to review an immigration policy that was within its statutory bounds as detailed by Congress — it was a decision, she acknowledged, that was overturned on appeal.

Conservatives should consider this a warning sign more than her inability publicly to state when life began. Although she has personal convictions, she doesn’t let them get in the way her duties as judge. On the other side, she can invent judicial reviews in ways that are not acceptable by any Obama-appointed judge. Evidently, she sees herself in a position where the court can create rules and interpretations that are not already there. This is something Republicans will never stand for, especially on hot issues. These are issues that will likely be brought before the Court soon.

For example, if she and the progressive judges regain the majority, she will be more than happy to invent the right of a transgender athlete to compete in women’s sports — an unenumerated right that would, among other things, negatively impact others’ First Amendment rights.

It was not something that she would say publicly. She was obviously well-prepared to not say such things, as I said earlier in the week. So she has to say she doesn’t have an opinion or that her opinion isn’t “appropriate” to share — all code for “Oh boy, do I have an opinion. But you won’t like it and I don’t want it to be a distraction.” Because it would be a distraction.

But not her confirmation. That’s pretty much assured. However, many Americans will be concerned about her views on issues such as what it means to be a woman and when life begins. And ahead of a virtually guaranteed bad election cycle for Democrats, they don’t want to give voters any more pause than they already have. They are scared of such views becoming public.

But Republicans should oppose Jackson’s nomination, even though they’ll lose on the issue. She will be confirmed along party lines (or close to them) and she’ll sit on the Supreme Court. It will reflect the American people and be more historical. However, this is not as important as good jurisprudence.