Commentary: Behind Last Week’s Viral Clips, Republicans Signal the Real Supreme Court Fight
Last week's Senate confirmation hearings for Judge Ketanji Brown Jackson went viral several times as Republicans asked questions geared toward social issues, Jackson hesitated or outright denied answering, and Democrats painted the whole thing as racist, sexist, and unfair.
But whether it was Sen. John Kennedy asking when life begins or Sen. Marsha Blackburn asking "What is a woman," the viral clips and responses in the media and social media actually distracted most Americans from what the Republicans were really aiming to highlight.
On dozens of occasions, Republicans used the word "unenumerated" during last week's hearings, attempting to pin Jackson down on the issue of rights that are explicitly stated in the Constitution and rights that are, essentially, invented by the Supreme Court. For Republicans, the ultimate example of the latter is the right to an abortion, which was created by the Supreme Court in Roe v. Wade.
Sen. Kennedy, along with the other Republicans, hit this topic again and again.
KENNEDY: OK. When you talk about judicial restraint, where does the restraint start with fundamental right? Let’s take the ninth amendment, OK? What does it say? I know you know because you talked about it earlier.
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: And how are we supposed to determine what others there are?
JACKSON: I think the Supreme Court has not found any others coming from that particular constitutional provision.
KENNEDY: Could they?
JACKSON: I can’t speak to that, Senator.
KENNEDY: I mean, it’s possible, right, if they get five votes, right?
JACKSON: Well, any time the Supreme Court has five votes, then they have a majority for whatever opinion they determine.
KENNEDY: But do you think that would be a prudent course of action to start creating fundamental rights through the Ninth Amendment, unenumerated now, without consulting Congress?
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…
KENNEDY: Then how do you explain or help me understand the following. We have a judicially created doctrine with no textual basis either in the Constitution or a statute called 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.
Not read the Constitution and say, well, there already is freedom of speech, but these are unmentioned, unenumerated. 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. So, due process, what does that mean? And the Supreme Court has the words due process do appear in the text of the Constitution and the question is, what is covered by that provision? 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.
Jackson very deftly skirts the questions, and for good reason. One of her rulings against the Trump administration was overturned on appeal because she essentially made up a power she didn't actually have at the time of her ruling. She essentially gave herself the power to judicially review something the U.S. Court of Appeals for the D.C. Circuit said was under the "sole and unreviewable discretion” of the secretary of homeland security.
However, the two judges concluded that federal immigration law appeared to put the decision issued last year by acting Homeland Security Secretary Kevin McAleenan beyond the reach of the Administrative Procedure Act, which courts often use to assess agency actions. In addition, Millett and Edwards said DHS did not appear to have been obliged to release the policy for public comment before adopting it.
The immigrant advocates “do not have a likelihood of success on their APA notice-and-comment and reasoned decisionmaking claims because the Secretary’s decision to expand the scope of expedited removal within statutory limits is committed to agency discretion by law,” wrote Millett, in an opinion joined by Edwards.
Millett noted that the statute actually gives the secretary “sole and unreviewable discretion” to apply the expedited removal process within certain constraints. “There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment,” she wrote.
What Republicans currently fear from more Jacksons being on the Supreme Court is that, should they gain the majority, they will find a lot more rights they say are implied by the Constitution than are already there.
The right for a biological male to compete in women's sports, for example.
It's not as though this is some unfounded fear, though. This was a requirement from President Joe Biden himself, who told the press that he was looking for a judge who "has a judicial philosophy that suggests there are “unenumerated rights in the Constitution." The Democratic Party wants to find new rights and create new "protected" groups, despite the fact that doing so forces the Constitution to be tied into insanely complex knots and undermines the idea that there are absolute rights guaranteed to citizens.
Because if you were to, say, use the Supreme Court to create new rights for trans athletes, you are undoubtedly creating a First Amendment issue in the process. Do biological males have the right to compete in women's sports? If the Supreme Court says yes, then it's forcing Christian institutions to allow something that would otherwise violate their faith. It would be a nightmare.
That's why you have Republicans worried about this and saw them pushing Jackson for answers. They needed to know if the threat was there. The fact that she dodged all the answers was, essentially, the answer: She was prepped to avoid the questions by the team that was preparing her for the hearings because she does, in fact, support creating more unenumerated rights.