Law Professor: KBJ’s Vague ‘Judicial Philosophy’ Leaves Door Open for Expansion of ‘Governmental Power,’ Erosion of ‘Liberty’

Jennifer Mascott, an associate professor of law at George Mason University’s Antonin Scalia Law School, warned on Wednesday that Judge Ketanji Brown Jackson’s refusal to clearly embrace the judicial philosophy of originalism raises concerns about the Supreme Court nominee’s possible reluctance to apply constitutional limitations on government power if confirmed to America’s highest court.

Mascott was invited by Republicans to offer her analysis during the Senate Judiciary Committee’s confirmation hearings for Brown, President Joe Biden’s Supreme Court nominee.

She said, “When asked about judicial philosophy, Judge Jackson has declined to identify express commitment to a particular philosophy, instead focusing on a multi-step interpretive method, highlighting the steps she had taken deciding cases, such as looking at briefs, the factual record, congressional intent, purpose, and precedents.”

Mascott noted how Brown’s ambiguous subscription to originalism and textualism may provide the judge with a jurisprudential ideology of “flexibility” relative to Supreme Court Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and the late Antonin Scalia. 

“It’s challenging to definitely discern or predict a jurist’s future methodological approach in the Supreme Court on the basis of service on a federal district court, but hesitance to commit to a particular judicial philosophy could leave flexibility for incorporation of various interpretive approaches during Supreme Court service,” she said.

She concluded, “The interpretation of law consistent with originalism and textualism as traditionally applied is important to maintain limits on governmental power and to preserve liberty.”