The conservative critique of Earl Warren’s Supreme Court was twofold—that it ignored the original meaning of the Constitution and statutes and that it transgressed traditional limits on judicial power. The John Roberts Court is far from perfect, but its output tries to avoid these errors. Justice Elena Kagan, the most impressive of the Court’s Democratic appointees, works largely within this paradigm. She often argues that the Roberts Court is insufficiently textualist and not judicially modest when it overrules precedent.
Justice Ketanji Brown Jackson has increasingly taken a more radical path by questioning originalism and textualism while adopting a selectively imperial view of judicial power, one that makes the Warren Court look modest and principled by comparison. She likely foretells the direction of future Democratic appointees. First, Democrats have been moving leftward and increasingly seek policy victories even when those would require a new judicial paradigm. Second, the Biden pool of lower-court judges from which future Democratic appointees are likely to emerge is considerably more left-leaning than the pools assembled by previous Democratic presidents.
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Jackson’s dissent in this past term’s Wolford v. Lopez ruling is particularly telling. There, the Supreme Court assessed Hawaii’s decision to amend its law and make it illegal to carry arms on private property open to the public without the owner’s express permission. The Court held that this flip from the common-law rule, which allowed such carry, imposed burdens on the right to bear arms and was unconstitutional.
Justice Jackson contended that Hawaii had merely altered its property law and therefore had not triggered a Second Amendment review. Justice Amy Coney Barrett responded that, on Jackson’s theory, a law requiring every property owner expressly to permit someone to wear a hijab before entering would have nothing to do with the Free Exercise Clause. States would then be authorized to manipulate their property laws to disfavor rights they did not like. Jackson did not directly answer the hypothetical. She argued instead that, historically, variable consent rules were incorporated into the Second Amendment because it was a preexisting common-law right. But many other rights, including the First Amendment, also protect such preexisting rights, as Justice Antonin Scalia observed in District of Columbia v. Heller. The Court has never suggested that changes in property law can defeat their operation. Jackson’s opinion establishes an unjustified hierarchy of rights, with the Second Amendment at the bottom.
In Wolford v. Lopez, she also questioned originalism, saying, “I am doubtful that originalism can be done right.” This skepticism sits in tension with her testimony at her confirmation hearing, in which she stated, “I believe that the Constitution is fixed in its meaning.” In that hearing, she also said, “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” While Justice Sonia Sotomayor joined Jackson’s dissenting opinion relying on a property theory and disparaging originalism in Wolford v. Lopez, Justice Kagan did not. She instead offered her own separate dissent.
Jackson’s skepticism about original meaning is not confined to very old texts. In West Virginia v. B.P.J., the Court decided that neither Title IX nor the Equal Protection Clause required West Virginia to permit transgender children to play on the teams of the gender to which they had transitioned. Though Jackson accepted the concession for purposes of the case, she wrote separately to insist that the Court leave open whether “sex” might receive a “more capacious” interpretation in the future. Yet almost no one at the time of the Founding would have understood “sex” that way.
Jackson’s approach to discrimination law recalls that of Justice William Brennan—the moving spirit of the Warren Court—who permitted racial preferences under Title VII despite that section’s flat prohibition against discrimination based on race. Justice William Rehnquist commented that, in escaping the constraints of the law, Brennan’s opinion resembled less the work of a jurist than that of Houdini. Jackson is signaling a return to Brennan’s methods. Neither Sotomayor nor Kagan joined her language about a “more capacious” definition.
Nor will Jackson be constrained by the traditional restraints on judicial power. In Trump v. CASA, from the previous term, Justice Barrett held that district courts did not have the power to issue universal injunctions—those that run against the executive—because such injunctions exceeded the traditional equitable powers to grant complete relief to the parties. Jackson argued that the Court’s law-declaring function supported injunctions ordering universal compliance with the Court’s view. Jackson’s separate opinion is radical because it treats this function as capable of overriding the conventional distinction between adjudicating parties’ rights and supervising the legality of government generally. This theory sits uneasily with Marbury v. Madison’s recognition that unlawful executive conduct does not provide jurisdiction or remedial authority. Again, neither Justice Sotomayor nor Justice Kagan joined Jackson’s separate, solo dissent, and neither embraced her remedial theory.
As the Democratic Party moves further left, one can expect more appointees who openly question originalism and textualism and make their own view of social inequity central to constitutional judgment, as Jackson did in her Students for Fair Admissions dissent in 2023. Democrats are considering trying to pack the Court or remove sitting judges through term limits. Should they regain power, they may accelerate new judicial appointments.
Just as political victories are never permanent, judicial triumphs are never enduring. The conservative movement in law has won many intellectual victories over the past decade. But intellectual victories do not appoint judges. Without political victories to sustain them, these gains will not endure.