KEY VOTE: Senate · Apr 6, 2022

Heritage Action opposes the confirmation of Ketanji Brown Jackson to the Supreme Court and will include it as a key vote on our legislative scorecard.

As soon as this week, the Senate will vote to confirm Ketanji Brown Jackson to fill retiring Justice Stephen Breyer’s seat on the Supreme Court. Senators should recognize Judge Jackson’s long record of judicial activism and history of decisions disregarding the Constitution in order to favor Left-wing causes and organizations. Judge Jackson’s record demonstrates she is not qualified to be on the Supreme Court, and Senators should oppose her confirmation.

While many have pointed out that Judge Jackson is replacing a similarly liberal appointee and thus will not immediately shift the ideological balance of the Court, it is important to remember Jackson could be on the Court for decades. The fact that a previous Senate confirmed a justice to run roughshod over the Constitution should not excuse the current Senate from making the same mistake. America has witnessed the damage that activist judges have wrought by stepping outside their constitutional role, and Senators should confirm justices that will uphold the Constitution as written instead of legislating from the bench. Jackson’s record must be seriously scrutinized with this in mind.

The most important consideration for a Supreme Court nominee is their judicial philosophy and how they view their role as a justice. A justice’s job is to be faithful to the original intent of the Constitution and interpret laws as they are written, rather than to create policy by interpreting laws in ways that fit their political views. In previous confirmations, Judge Jackson has indicated she either does not have a defined judicial philosophy or has chosen to hide it because she knows it would be disqualifying. During her confirmation hearing for the U.S. Court of Appeals, she directly told Senators, “I do not have a judicial philosophy, per se.”

Only during her Supreme Court confirmation hearings did Jackson begin to answer important questions about how she views the Constitution, the law, and her role as a judge. Americans should be extremely skeptical of these answers, as they are part of a “confirmation conversion,” where a nominee shifts their views during the confirmation process in order to get the necessary votes to be confirmed. Given that it is impossible to know Jackson’s judicial philosophy from her words alone, an examination of her professional record to try to understand that philosophy is critical. Looking at her judicial decisions and her time on the United States Sentencing Commission reveals she has a history of favoring judicial activism in service of her political views at the expense of the law as written.

Perhaps nowhere is her judicial activism more obvious than in her treatment of those convicted of breaking child pornography laws. Dating as far back as her time in law school, Jackson has discussed her opposition to the way that sex offenders are punished in the U.S. As Senator Josh Hawley noted, this worldview has resulted in a demonstrated track record of light sentences for convicted child pornography offenders, heinous crimes that victimize the most vulnerable members of our society.

Her judicial activism has also bled into other policy areas as well, particularly in illegal immigration cases. The most notable example is from 2019 when Jackson blocked the Trump administration from expanding a policy that allowed for the expedited removal of illegal immigrants. This ruling was unanimously reversed by a three-judge panel, two of which were nominated by Democratic presidents.

If Jackson has bent her judicial interpretations to fit her political views on these issues, Americans should assume she will be willing to do so on all issues. As a private citizen, Jackson wrote in support of a Massachusetts law that would have created buffer zones around abortion industry facilities for protesters, essentially silencing the First Amendment rights of pro-life Americans. In speeches and writings, Judge Jackson has frequently drawn on and cited the ideas of leaders of the radical Critical Race Theory movement which advances the view that someone oppresses others by simply being born white. It raises questions about how these views, coupled with her history of judicial activism, will cause her to rule in cases related to abortion, race, and other policies favored by progressive activists.

Senators should not be fooled by Judge Jackson’s apparent “confirmation conversion,” and should instead recognize her judicial activism and why she was a favorite of leftist dark money groups that have also supported both the defund the police and rogue prosecutor movements. Her confirmation to the nation’s highest court should be seen as the crowning achievement for the Left, whose policies have caused the dueling crime and border crises. Given her record of judicial activism, Judge Jackson is not qualified to be on the Supreme Court, and Senators should oppose her confirmation.

Heritage Action opposes the confirmation of Ketanji Brown Jackson to the Supreme Court and will include it as a key vote on our legislative scorecard.