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The New Justice And HIstory’s Bag Of Tricks

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The New Justice And History’s Bag Of Tricks

INDIANAPOLIS—Again and again, history has demonstrated a capacity to surprise us.
Who, for example, would have predicted that a former Ukrainian situation comedy star would become an international symbol of courage, resilience, and resolve as the president of his embattled nation?

Or that a gangly, self-taught lawyer from an undistinguished family who had known more defeats than victories in his political career would lead America through its most rending crisis and emerge as this nation’s greatest president?

The link that unites the tales of Volodymyr Zelenskyy and Abraham Lincoln is that each was a human being of not readily apparent depths. In each case, the surface not only did not reveal all but deceived.

It was easy—too easy—for contemporaries, friend and foe alike, to dismiss the two leaders as nothing more than a song-and-dance man and a prairie jokester, punchlines rather than potent forces. Those observers missed the tempered steel beneath the smiling surface.

History soon may add newly seated U.S. Supreme Justice Ketanji Brown Jackson to its list of surprises.

I suspect that many, many people—again, friend and foe alike—have not fully taken Jackson’s measure.

During the battle over her confirmation, her nomination was weighed primarily in symbolic terms.

Her opponents attempted to portray her as a representation of all that they see as wrong with modern-day America. They painted her as an apologist for licentiousness and permissiveness, an enabler of those who wish to demolish established moral codes and evade the consequences of evil and destructive behavior.

Her advocates and allies understandably saw her as something else, something finer. They depicted her as a barrier-smasher and pioneer, the first Black woman to serve on America’s high bench. She was proof, they said, that the essential American promise could be fulfilled, that the highest mountains could be climbed by those talented and hard-working enough to scale them.

The common theme to these portraits of Jackson is that they denied her individuality.

Her humanity.

What I saw as I watched Jackson move through the confirmation was something and someone much rarer and more special than any symbol.

An original, discerning and independent thinker.

Jackson’s arguments about originalism—interpreting the U.S. Constitution as it was written and intended—were both provocative and persuasive.

They also were unlikely to give unalloyed comfort to either liberals or conservatives. She made it clear that she was going to look at every constitutional question through the lens of what the drafters of our great national contract meant to say.

That definitely will be troubling to conservatives. Despite their decades of protestation about judicial activism, conservatives have been remarkably eager to discard precedent and invent new constitutional concepts when they were in power and the mood to do so fell upon them.

In the Heller decision the gun industry and lobby love so much, for example, the late Justice Antonin Scalia ignored key language in the Second Amendment and two centuries of precedent to establish for the first time that firearms ownership was an individual rather than a collective right. An unceasing epidemic of mass shootings and gun violence has followed.

It appears that Jackson will not be reluctant to point out and dissect such logical, legal and constitutional inconsistency—even hypocrisy—when it confronts her in the court.

But she also doesn’t seem likely to be a source of constant reassurance to progressives. She made clear during her testimony that, whatever her personal feelings about an issue might be, her duty as a judge compels her to look at that issue through the lens of what the Constitution says.

That means she probably won’t support expansions of either individual or collective rights unless there is constitutional justification for doing so.

Her independence may make her exactly what this Supreme Court and this nation need right now.

The John Roberts court has come to be perceived as blatantly political and partisan by an increasing number of Americans not just because of the blatantly political and partisan battles over Supreme Court nominations. It’s also because the court itself, often at the behest of the chief justice, often has seemed to tack with political winds.

Ketanji Brown Jackson seems the sort of person who stands her ground, regardless of how hard the wind blows.

That will be good for the Supreme Court and good for the nation.

As well as a welcome surprise.

FOOTNOTE: John Krull is director of Franklin College’s Pulliam School of Journalism and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students.
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