Ketanji Brown Jackson believes in something Republicans have abandoned — ‘judicial restraint’: conservative

During the Senate confirmation hearings for Judge Ketanji Brown Jackson — President Joe Biden’s nominee to replace the retiring Justice Stephen Breyer on the U.S. Supreme Court — the 51-year-old Washington, D.C. native expressed a strong belief in the legal/judicial doctrine known as stare decisis, which essentially means “respect for precedent.” Never Trumper and Washington Post opinion writer Jennifer Rubin analyzes Jackson’s judicial philosophy in her March 23 column, arguing that modern-day Republicans have abandoned “judicial restraint” — unlike Biden’s nominee, and unlike Republicans of the past.

“Not so long ago, ‘conservatives’ used to insist that the judiciary operate within constraints,” Rubin explains. “Judges shouldn’t venture far from precedent, they finger-wagged. They should spell out the reasoning behind their rulings. In statutory interpretation, they should stick to the words of a text and the intent of its drafters.”

The 59-year-old columnist continues, “Indeed, Supreme Court nominee Ketanji Brown Jackson, during her confirmation hearing this week, has offered a refreshing reminder about how judges should comport themselves — and how radical the current majority on the Court has become.”

Rubin, now 59, has voted Republican in most presidential elections during the last 40-plus years, starting with Ronald Reagan back in 1980. But she has been a blistering critic of former President Donald Trump and the MAGA movement and voted for Hillary Clinton in 2016 and Joe Biden in 2020. And one of the issues Rubin has with MAGA Republicans is what she considers their belief in judicial radicalism.

“It’s no secret that right-wing justices are on a crusade to rip up precedent,” Rubin argues. “From their efforts to weaken union rights to their threats of abandoning decades of abortion law, they have revealed their willingness to undertake dramatic shifts in law simply because they now have the votes to do so.”

Justice Clarence Thomas, Rubin notes, has “opined that New York Times Co. v. Sullivan, decided in 1964, should be overridden” and “has said the same about Roe v. Wade.”

Rubin observes, “As the late justice Antonin Scalia, no fuzzy-headed progressive, once said of Thomas, ‘He does not believe in stare decisis, period.’ Now, along comes Jackson, who repeatedly explained, on (March 22), the purpose of stare decisis and its roll in keeping justices in ‘their lane.’”

Indeed, Jackson used the terms “stare decisis” and “settled law” a lot when U.S. senators were questioning her on March 22. In Latin, stare decisis means “let the decision stand.” And Jackson addressed the concept on March 22, explaining, “Although the Supreme Court is not bound in the sense of having to apply prior precedent, there is stare decisis in our system. There are now standards in the stare decisis world that the Supreme Court applies.”

Far-right MAGA Republicans often complain about “activist judges,” but these are the same Republicans who would like to see the High Court overturn everything from Griswold v. Connecticut to Stanley v. Georgia to Lawrence v. Texas. And with GOP-appointed justices now enjoying a 6-3 majority, it’s entirely possible that they will.

If Jackson is confirmed, it won’t be a game-changer — as she would be replacing a Democratic Bill Clinton appointee. But at least Breyer would be replaced by someone who has no desire to butcher Supreme Court rulings that have served the U.S. well for many years. And being a 51-year-old Gen-Xer, Jackson could be on the Court 25, 30 or 35 years from now. She is 32 years younger than Breyer.

“(Jackson) reminded senators that precedent operates as a significant restraint on judges, who must overturn precedent only when certain criteria are met,” Rubin emphasizes. “Humility, deference to the past, avoiding wild pivots in the law that erode confidence in the Court as a neutral fact-finder — gosh, that’s how conservative justices used to sound. Now, Jackson’s noncontroversial statements sound like an indictment of the rogue majority. And they are.”