The night before her first trial case as a district judge, Justice Ketanji Brown Jackson stayed up late with her clerks carefully reviewing trial rules and procedures. Though the case was straightforward by legal standards––the defendant was an alleged bank robber who made his fingers look like a gun in his pocket to intimidate bank tellers––Jackson was nervous. After years of doing appellate work as a lawyer, Jackson wanted her return to trial court from the other side of the bench to be perfect.
As Jackson walked into the courtroom, she saw a note on the judge’s bench: “Breathe.” One of her clerks, knowing she was nervous, had left it for her early in the morning.
Despite Jackson’s anxiety, the trial ran smoothly, lasting only three hours. The thorough preparation with which she approached the case would soon become her trademark among her clerks. Joseph Slaughter YLS ’10, a member of Jackson’s first class of clerks when she was a judge for the U.S. District Court for the District of Columbia, recalled the “meticulous” determination she brought to each case. While some judges prefer to stay mostly removed from their clerks, Jackson made frequent trips to the clerk’s room to debate cases, exploring every angle.
Jackson has brought this same tenacity to her new role as a justice on the United States Supreme Court. In her time on the court thus far, she has embraced an angle that is increasingly popular in liberal legal circles: progressive originalism.
After oral arguments in Merrill v. Milligan, a redistricting case in Alabama, the Washington Post, Politico, and Slate ran pieces dissecting what they called a novel usage of progressive originalism at the Supreme Court level. Some commentators lauded this approach as a promising tool for progressives to win over the court’s conservative majority, but others have called progressive originalism ideologically incoherent and questioned its effectiveness.
The term originalism broadly refers to judges who base their decisions on the Constitution’s original meaning. This view remains popular among conservatives, who see originalism as a counter to liberal attempts to apply the Constitution in ways that are tailored to today’s problems. Progressive originalism, which arose in response to conservatives’ use of originalism, draws on original meaning to promote progressive legal ideas.
Originalism was not always dominant in the U.S. legal system. In the 1980s, when liberal ideas like living constitutionalism were widely popular, students at Yale Law School founded the Federalist Society to promote conservative legal theory. The organization began a campaign to persuade law students to focus on the original meaning of the Constitution and produce court decisions that better reflected conservative values. The Federalist Society consolidated its influence by organizing forums for conservative legal discourse and creating lists of recommended judicial nominees for presidents. As law students joined the Federalist Society at their schools, and then went on to be nominated as judges and justices, the organization and its adherence to originalism grew in prominence.
Today the Federalist Society acts as the gatekeeper for conservative legal scholarship. All six conservatives justices on the Supreme Court are former members. As the organization’s power grew, liberal legal scholars recognized a need to find a way to represent their ideas within a court system that was increasingly shaped by conservative power. The result was a slow adaptation of the originalist mindset into liberal circles. Indeed, years before Ketanji Brown Jackson took the bench, Justice Elena Kagan famously remarked at her 2010 confirmation, “We’re all originalists now.”
This movement to take on an ideology based in a conservative school of thought exposes a certain peculiarity of the judicial system.
The courts must produce not only a decision, but also the reasoning that justifies it. Minority members of a court can assert their perspective during deliberations with other judges and in dissenting opinions.
Thus, in using progressive originalism as their own ideological foundation, liberal justices make the attempt to weaken conservative arguments against it by using their own framework. In Merrill, Justice Jackson used an originalist framework to argue that the Constitution was race-conscious rather than race-blind, and thus redistricting maps should be able to consider race in their creation. Since the 13th, 14th, and 15th amendments were written in recognition of the need to create protections for those who faced disadvantages after slavery, the Constitution indeed considers race, Jackson argued.
“It puts the conservative originalists on a kind of defensive, which is if they want to say that the Constitution is colorblind and always was, they’ve got this problem because if if they’re going to subscribe to originalism, the people that originally passed the 14th Amendment, were not colorblind,” said Gordon Silverstein, the Assistant Dean for Graduate Programs at Yale Law School.
Silverstein has written and taught on the importance of constitutional interpretation and the unique power of judicial reasoning. He points out that because the court must provide a reasoning to validate their decision, justices must create decisions that have a strong logical basis. In this view, liberals’ decision to use progressive originalism would seem to force conservative justices to consider their views if they want to use originalism to validate their decision.
However, in Merrill, originalist Justice Samuel Alito shifted the discussion away from Jackson’s arguments for originalism and to the need to uphold an earlier precedent, regardless of concerns over their maintenance of originalism. Relying on precedent to overcome originalist arguments puts conservatives on shaky ground, Silverstein pointed out.
“That’s a very tough position for them to maintain after spending last term blowing up old precedents. They’re not exactly the poster children for precedent,” Silverstein said.
The diversity with which the idea of “original meaning” may be interpreted engenders results like these, in which two justices can profess to understand the Constitution in an originalist context yet disagree on the other’s usage.
Leslie Goldstein, a political scientist at the University of Delaware who has written on what influences justices’ decisions to overturn precedent, noted the broad nature of the Constitution’s “original” meaning: “I have observed that in cases where both sides make claiming-to-be-originalist arguments, neither side convinces the other side. This is one of the many problems with originalism, that it’s not it’s not easy to prove one way or another.”
Some legal scholars see these fruitless discussions and question any implication that Supreme Court justices have coherent constitutional interpretations.
“None of them really have a view,” said Mitch Berman, a professor of law and philosophy at the University of Pennsylvania Carey Law School.
Berman has spent most of his career thinking about constitutional interpretation and has developed a theory of organic pluralism, which recognizes a multitude of sources for constitutional interpretation. As a progressive legal thinker, Berman finds himself disappointed with the state of progressive scholarship because of its incoherency and weakness. Despite supporting certain progressive causes, he does not support this progressive originalism Justice Jackson promotes, or originalism in any form, because he disagrees with the fixation on original meaning and wants a stronger foundation for progressive thinking.
To Berman, the courts have become less about upholding certain constitutional interpretations and more about producing political outcomes. Despite the supposed apolitical nature of the court, legal reasoning is increasingly motivated by partisanship. Though removed from some political processes, their executive selection and legislative confirmation has led to the development of decisions based on outcomes rather than consistent and coherent interpretation. He did point out this inconsistency in those justices who supposed tout originalism, conservative or not.
“To me, it’s a bad sign for originalism if it consistently generates the political results that its practitioners like—that’s a good indication that it’s not a real theory that is sincere, serious theory, but rather, it is a vehicle by which conservatives can opportunistically reach the results they like,” Berman said.
Other scholars have pointed to recent cases such as New York State Rifle & Pistol Association v. Bruen, in which Justice Clarence Thomas used a convoluted history of gun rights in America to affirm the individual right to own guns. Originalism provided a guise for justices to legalize conservative values. Berman wants better for liberal justices.
He would prefer that progressive members of the judicial system like Justice Jackson use a more coherent and consistent ideology rather than making interpretations to fit political outcomes. He points to theories such as common law constitutionalism, Dworkian theory, and justice-seeking constitutionalism that have this more rigorous approach to interpretation but have not been picked up by progressive leaders because they would not consistently produce victories for liberal aims.
“A better theory than originalism that maybe more liberals and progressives might like ought not to be something which can guarantee you liberal and progressive results. That’s not the way law works,” Berman said.
In this debate over whether the influence over Supreme Court decisions comes from the strength of a justice’s political power or their intellectual argument, the answer may not rely on just one of those components. For certain decisions, conservative justices who hold the strength in voting power on the bench might be more amenable to the constitutional arguments made by their liberal counterparts. For others, persuasive appeals to original meaning might fall on unsympathetic ears.
Observers of the Supreme Court look to the court’s upcoming cases against Harvard and University of North Carolina at Chapel Hill and their affirmative action plans for another opportunity for Jackson to flex her intellectual reasoning. While Justice Jackson could make another originalist argument for the race-conscious constitutionality of universities promoting racial equity, in the end, conservative justices hold a majority on the bench. They have expressed skepticism of the constitutionality of affirmative action.
Up against an unrelenting conservative majority, some might wonder what rhetorical arguments might do for the liberal power on the court. Dahlia Lithwick, Slate’s Supreme Court correspondent, has observed the bench for years now. While acknowledging the limitations of Jackson’s power in the current moment, she looks to how the justice’s progressive arguments could build the movement for the future.
“I think she’s going to be in dissent on this for a long time,” Lithwick said. “But if the true purpose of dissent is to write a letter to the law students of the future and the racial justice lawyers of the future, then I think that’s where she’s going to be salient.”
Lithwick’s hopes echo Silverstein’s conception of the power of the judicial deliberation process. Even though Justice Jackson and her opinions may appear mostly in dissent during this iteration of the court, records may serve as a foundation for work by the legal system’s future progressive originalists.
She compares this approach to that of the late Justice Antonin Scalia, a conservative who helped cement the originalist approach in the Supreme Court. Though now known for being the “anchor” of conservative in the court’s history, his theory, like Justice Jackson’s, was not widely used at the time, but with his insistence in dissents, originalism cemented itself within the Supreme Court.
“He used to say ‘I write dissent, not to persuade my colleagues but to have a marker for what the world should look like and to tell law students what they should work toward.’ I think that’s what she’s doing,” Lithwick recalled.
Lithwick points out that Justice Jackson’s dissenting opinions might also be an attempt to bring back the younger generation that has become increasingly disillusioned with the court. According to a Pew Research poll in August 2022 found that 63% of young adults aged 18-29 hold unfavorable views of the Supreme Court. Most young adults have lived through a Supreme Court more political than it has ever been, with precedents being set and overturned within years of each other.
“I see her trying very, very hard to say especially to generations of young people who have lost confidence in the courts and in the law that actually the law is an instrument of fairness and justice and here’s what it does,” said Lithwick. “And I think that’s the opposite of dramatic, it’s very painstaking, and very meticulous.”
The partisanship of the Court provides a powerful motivation for young people to distrust the judicial system Still, if Justice Jackson continues to do this work as meticulously as she did with her straightforward first trial cases, perhaps her work has the potential to inspire young generations to put their faith back in the courts.