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Opinion | Ketanji Brown Jackson’s Confirmation Feels Both Pathbreaking and Hopeless

Justice Kagan has been more apt than Justice Sotomayor to play the good cop, whether it’s hunting deer with Antonin Scalia or breaking bread with conservatives at key strategic moments. She and Stephen Breyer surprised many, for example, when they joined Chief Justice John Roberts’s opinion limiting the Affordable Care Act’s Medicaid expansion, a move that some court watchers saw as an effort to hold on to the chief justice’s vote to preserve the law’s health insurance mandate.

I don’t know which model of influence Judge Jackson will pursue — she has been a trial-court judge for most of her nine-year judicial career, with no need to pull her judicial colleagues to her position — but she gave us an important hint this week. The justice she chose to quote in her opening statement wasn’t John Marshall Harlan or Thurgood Marshall but Justice Breyer, whom she clerked for from 1999 to 2000. And the message she chose to emphasize wasn’t one of combat but of conciliation:

“What is law supposed to do, seen as a whole?” Justice Breyer said on the day of his nomination. “It is supposed to allow all people — all people — to live together in a society, where they have so many different views, so many different needs, to live together in a way that is more harmonious, that is better, so that they can work productively together.”

This sounds Pollyannish at first blush. This court’s Republican-appointed majority seems poised to press its advantage aggressively, hearing cases this term and next that could upend the law around abortion, affirmative action, gun rights, voting rights, religious freedom and the power of administrative agencies, a startlingly precise wish list of conservative judicial priorities over the past four decades. Hunting-rifle diplomacy can only get you so far with this court.

What’s more, based on the popular ideological scoring system created by the political scientists Andrew Martin and Kevin Quinn, the court’s swing justice is Brett Kavanaugh, a Donald Trump nominee who helped draft the Starr Report, worked for the George W. Bush campaign during the Bush v. Gore litigation, and whose words at his confirmation hearing — “What goes around, comes around” — struck many observers as a promise of vengeance on his political enemies. The idea that a liberal justice should seek to forge an alliance with such a person seems to misread the room.

And yet, there is hope. Sometimes a court minority’s best ally isn’t the sharpness of its words or the charisma of its public appeal, but rather time. Going out for beers isn’t going to turn a conservative justice liberal (or vice versa), nor should we expect it to. Justices are entitled to their views. What we do have a right to expect, though, is that when a court majority pushes the Constitution toward its favored ideological pole, it does so slowly, with a nudge instead of a shove.

Chief Justice Roberts aligned himself with this “minimalist” approach early in his tenure. “If it is not necessary to decide more to a case,” he told an audience at Georgetown, “it is necessary not to decide more to a case.” He has in many ways remained true to this promise of restraint, resisting bolder rulings urged by Justices Scalia, Clarence Thomas, Samuel Alito, and Neil Gorsuch in a wide range of cases from the Affordable Care Act to campaign finance to abortion rights and religious freedom. Claims that the chief justice is a “RINO” result less from his progressive instincts — he is most definitely not a progressive — than from his caution about moving the court too far, too fast.

For all the notoriety he generated at his confirmation hearing, Justice Kavanaugh clearly shares some of these instincts. As a lower court judge, he had a chance to vote to strike down the individual mandate of the Affordable Care Act, a top Republican priority at the time, but instead he wrote a solo opinion rejecting the plaintiffs’ challenge on procedural grounds. Before he became a justice, he gave a nuanced speech at Notre Dame betraying his discomfort with the kinds of absolutist approaches to the constitutional text that Justice Gorsuch and Justice Thomas have espoused on the bench and in their own writings.

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