At Balkinization, Lawrence Solum, guest blogging: Progressives Need to Support Justice Ketanji Brown Jackson. From the introduction:
A third wave of progressive originalism is now well underway. Justice Jackson is already the de facto leader of a group of scholars, lawyers, and judges who understand the dangers that judicial supremacy and living constitutionalism pose to democracy and equality—given the reality that conservative justices will dominate the Supreme Court for at least a decade or two. Justice Jackson’s originalism is a direct and forceful response to the conservative justices’ increasing reliance on a selective mix of history, tradition, and precedent to undermine the original meaning of the Constitution’s text, while claiming to be “originalists.”
Ironically, the fiercest critics of progressive originalism are not conservatives. Instead, it is progressives themselves who have gone on the warpath. Prominent examples include “Originalism is Bunk,” by Ruth Marcus of The Washington Post, “Worse than Nothing,” a slender monograph by Erwin Chemerinsky, and “Resisting Originalism, Even When ‘Done Well,’” a post on the Yale Journal of Regulation’s Notice and Comment Blog by Lisa Heinzerling. What these critics and their many supporters share is an opposition to Justice Jackson’s embrace of originalism’s progressive potential, both as a counter to conservative living constitutionalism and as the key to unlocking the emancipatory power of the Fourteenth Amendment.
And from later on:
Justice Jackson sees the obvious: progressives must oppose a conservative juristocracy. And the most effective way to do that is to expose the gap between the outcomes that conservatives prefer and the original public meaning of the constitutional text. Justice Jackson is in the vanguard of the third wave of progressive originalism, and she is not alone. Progressive constitutional scholars like Akhil Amar and Jack Balkin at Yale, and progressive lawyers like Elizabeth Wydra at the Constitutional Accountability Center, have labored for decades to lay the foundations for a progressive and originalist resistance to a conservative juristocracy.
—
If conservative judges are making selective use of history to make originalist arguments for conservative results, then the only way to show this is to make better originalist arguments to the contrary. Failure to make progressive originalist arguments effectively concedes that the constitutional text supports conservative result, legitimating rather than undermining the conservative juristocracy.
(Thanks to Michael Rosman for the pointer.)
Posted at 6:06 AM