The Dangers of Judicial Activism: The Case Against Ketanji Brown Jackson


Philip Mahoney, Staff Writer


With abortion becoming a centerfold topic this spring, all eyes are on the Supreme Court as the originalist-those who believe in the constitution as explicitly written-majority seems poised to potentially reshape abortion laws throughout the country. In recent times, particularly with Democrats during the nominations of the three Trump judges, we have seen a politicization of the court and fear of a woman’s right to abortion being smudged away. 


Justice Stephen Breyer, appointed by President Clinton before his drift to the center, was as left as they come, and yet appears to have been driven out by the demands of the progressive mob that holds the reins of the Democratic Party. President Biden and company rejoiced; what has been a washout of a presidency thus far will yet permit him to cement somewhat of a legacy after he has passed. Supreme Court nominees tend to be the most long-lasting and impactful part of a President’s tenure; I have argued often that President Trump will be remembered mostly for his court picks.


Having pledged during his campaign to nominate an African-American woman to the court, Joe Biden intentionally seems to have limited the plethora of options he could choose from. While Mrs. Jackson’s academic credentials as a graduate of Harvard’s undergraduate and law school are undeniable, her professional career has caused a great deal of concern. I do not believe Mrs. Jackson has demonstrated throughout her rulings as a Federal Judge, whether it be on the District Court or Court of Appeals, that she holds enough respect for the Constitution. 


Before I dissect what I consider to be her disqualifications, there are benefits to her potential confirmation. In the final term of the Rehnquist court, the SCOTUS ruled that Guantanamo Bay Prisoners could file lawsuits challenging their endless detainment. These convicts could not afford to hire extravagant law firms to take their case – and with the stigma associated with defending jihadists, not many would agree to take their case. A certain public defender Mrs. Jackson was assigned by the District Court of D.C to defend them.  This unique background would provide a unique perspective for the court.


While Senate Republicans are no doubt going to attempt to use this as a means to scrutinize and make an argument against her confirmation, I would like to remind them that in this country everyone, no matter what they are accused of, is entitled to a fair defense. In addition, as aforementioned, the Supreme Court has usually been filled with prosecutors; never has a public defender served on the bench in its 233 year history.


But being a unique case does not grant you a seat on what has become the most influential branch of government. If confirmed, Mrs. Jackson will truly be a Trojan horse of judicial activism (where a judge exercises their own personal views as a basis for decision making), which will undermine constitutional values and civil liberties. In 2001, Jackson wrote a brief in McGuire v. Reilly that viciously attacked pro-life demonstrators whom she described as ‘in-your-face’ and ‘hostile’ despite these activists merely demonstrating their first amendment right to protest. The descriptions she provided of these activists is the most troubling part, Justices obviously can support a woman’s right to choose but the rhetoric used to describe these activists is unbecoming. This would naturally disqualify her from any case on abortion; it is quite clear that Mrs. Jackson is not malleable in regard to the law but rather on her opinion of the law.


The same concern was brought up by Senate Democrats and concerned voters who thought the same about Trump’s last court pick. Amy Coney Barrett’s strong opinions against abortion also came under severe scrutiny during her expedited confirmation process shortly before the election. As the nation awaits to see her written thoughts on the abortion cases that approach this spring, we will see if Justice Barrett’s stance on abortion will be swayed by the authority of the states or her own personal beliefs.


Furthermore, in Jackson’s challenge against Homeland Security Secretary Kirstjen Nielsen in 2019, she sided with pro-illegal immigration activists that made ludicrous claims that the Trump administration’s revised deportation policies were errant. Naturally, this disregard for the authority of Homeland Security was reversed by the D.C. Circuit. I show concern for Judge’s who do not understand the authority of the various executive branches, especially considering the Supreme Court tends to settle disputes between such. 


In fact, most of Judge Jackson’s decisions have suffered from reversal. Her judicial philosophy appears to be whatever pleases the special interest groups she is beholden to for endorsements, such as AFL-CIO, the Southern Poverty Law Center, and Demand Justice. Her lack of an understanding of the Constitution was made apparent when during her blusterous nomination speech, the President reaffirmed that she will “[c]hoose what she thinks is right.” Typical rhetoric from the President, who after obstructing the movement of Congress in unpassable progressive legislation, would ideally want to use the Supreme Court to legislate.


Although the framers envisioned an equal triumvirate of branches, the truth is the Supreme Court is emerging as the most powerful of the three. And to their credit, Republicans have prided themselves on picking judges who wish to interpret the law through the Constitution, the party seems united in near worship of this document.  This has been ignored ever since Justice Bork’s contentious nomination in 1987 in which the Democrats have seen fit to graciously extend a nexus of ad hominem attacks for any justice who happens to be appointed by a GOP President. 


The role of the court is not to legislate, judges are not there to share their opinion on whether they feel something is right or wrong, that is not impartial justice. The sole purpose of the Supreme Court is to determine whether legislation is constitutional, settle disputes between branches, and interpret laws. Judge Jackson is a clear sign of the President’s base demanding he swing this institution to the far left, which would have disastrous implications for our country. This notion of a living constitution is something that will ultimately be destructive, and contrary to what our founding fathers had in mind.