April 8, 2022
In the debate over the nomination of Ketanji Brown Jackson, senators announced their intention to vote for or against confirmation. These decisions typically focus on three issues.
First, are questions about the qualifications of a nominee. The nominees to the U.S. Supreme Court are almost uniformly successful as attorneys or law professors and, usually also as judges. In the case of Judge Jackson, some have noted a unique aspect of her resume: that she worked as a public defender. Some have seen this as a disadvantage, but most senators are likely to, appropriately, see this as an advantage. It indicates familiarity with the criminal justice system and dedication to the constitutional principle that those accused of crimes deserve legal representation to ensure fair treatment.
Second, are questions about specific legal issues. This is sometimes reflected in questions during the confirmation hearings about how a nominee would rule on abortion restrictions, gun control laws, etc. Since nominees are very unlikely to answer questions about how they will rule on specific questions, advocacy groups and legislators may look at prior statements. This was an important factor in the defeat of Judge Robert Bork who had published widely as a law professor.
It appears that presidents now try to appoint nominees without a history of writing or commenting on legal issues to avoid prior statements becoming the grounds of objection. Those nominees who served as lower court judges, though, will have decided cases. Those published decisions become the target of criticism or support, as with the questions raised about Judge Jackson’s decisions on challenges to Trump Administration policies and other cases.
Third, are questions about a nominee’s approach to interpreting the Constitution and other laws. For instance, whether a judge should confine his or her analysis solely to the original meaning of a specific legal provision, or try to discern the intent of lawmakers, or even try to effectuate the spirit of a concept like “liberty” which appears in the Constitution.
Some of these, particularly the latter, are important questions in assessing a nominee. But there is another factor that might be appropriate to think about.
Interestingly, the recent nomination of Judge Diana Hagen to the Utah Supreme Court raised this factor. In a news report about Governor Spencer Cox’s announcement of the nomination, the Deseret News said: “He also noted that the Supreme Court is a team, and he was considering how certain candidates would add to the team and work well with their colleagues.”
Though it is not usually raised, this is an important subject. The work of the U.S. Supreme Court, and of state Supreme Courts, necessarily involves the interaction of the judges with one another. Decisions are made by majority opinion and though one justice typically writes an opinion resolving a case, other justices must join that opinion to make it controlling in future cases and for lower courts.
So, a nominee’s approach to working with colleagues is significant. There is not, however, only one possible approach that the justices may take. Two general approaches have benefits and drawbacks.
Chief Justice John Marshall, probably the most consequential chief justice of the U.S. Supreme Court, worked hard to promote unanimity in the Court’s decisions and succeeded the vast majority of the time. It is probably safe to assume that most people see this approach as the ideal. Justice William Brennan was known for his good relations with colleagues and ability to build consensus. That quality is undeniably valuable. It allows a justice to get majorities, ideally unanimity, to support an outcome.
It has drawbacks, as well. Attaining consensus can require balancing principles and pragmatics for the sake of getting agreement. This is a strength in legislative decision-making but can be problematic in a court setting, since the role of the court is to accurately interpret and apply legal texts. This cannot always be done by majority vote.
Another approach is for a justice to clearly lay out and steadfastly adhere to firm principles and wait for other justices (or new justices) to come around to them. Justice Clarence Thomas, for example, has created a remarkable body of written opinions that outline a coherent and principled approach to constitutional interpretation. His opinions have not always gained majority approval, but are influential because of their consistent, principled quality.
A famous example is the comment of now-Justice Elena Kagan during her confirmation hearing that “we are all originalists.” The basic idea of originalism – that the Constitution’s meaning would not change over time with the vagaries of judicial opinion, but needed to be discerned from the text itself – was not always popular with the majority of the Court. It was steadfastly defended (often in dissents) by Justices like Clarence Thomas and Antonin Scalia, and has now become a widely accepted notion (though, of course, with a variety of perspectives about details).
The obvious drawback to this approach is that if other justices don’t accept the principled arguments of a colleague at some point, they never become law.
Perhaps a time will come that a nominee’s approach to working with judicial colleagues will become a more significant factor in confirmation hearings. It is an important subject that deserves more attention than it typically receives.
This case should establish whether the state can require creative professionals and businesses to send messages even if it does not express antipathy to the professional or business beliefs.
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