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Opinion Questions for Judge Ketanji Brown Jackson

Judge Ketanji Brown Jackson speaks as President Biden looks on during the White House announcement of her Supreme Court nomination on Feb. 25. (Al Drago/Bloomberg News)
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Like watching an infant eat pureed spinach, watching senators question Supreme Court nominees is not for the squeamish. But beginning Monday, the confirmation hearings for Ketanji Brown Jackson can be instructive if she is asked:

In the 1978 decision that permitted racial preferences in university admissions, Justice Harry Blackmun said, “In order to get beyond racism, we must first take account of race.” Do you agree? By what criteria should the nation decide that it has arrived “beyond racism”? Or does the “diversity” rationale mean race-based admissions are forever?

Federal law says “no person” can be “excluded from participation in … or be subjected to discrimination under any program” receiving federal assistance. Does this mean a university’s admissions policies cannot discriminate against a racial category — say, Asian Americans — even if the university says the policies serve “diversity”?

In 1996, ethnically and racially diverse California passed (with 54.5 percent) a referendum saying “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting” (emphasis added). In 2020, an even more ethnically and racially diverse California rejected (with 57.2 percent) an attempt to repeal this. Does the Constitution mandate colorblind policies? If so, what of the 2021 American Rescue Plan providing loan assistance to “socially disadvantaged” farmers who, the Agriculture Department says, do not include White farmers?

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Article I “vested” legislative power in Congress, making Congress the mandatory location of this power. So, presumably there are some congressional grants of discretion to executive agencies that are unconstitutional delegations of legislative power. Is the separation of powers compatible with Congress’s constantly giving administrative state entities vast powers to write rules regulating private conduct? Should courts or Congress decide whether Congress violates the non-delegation doctrine? Is consent — democracy’s foundational concept — attenuated almost to disappearance if it means merely consenting to Congress consenting to administrative agencies regulating our lives?

The Framers were parsimonious and precise with words, yet the judge and scholar Robert Bork dismissed as an “ink blot” the Ninth Amendment. (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Were the Framers joking? Do you believe there are unenumerated rights enforceable by the courts? Or are all enforceable rights either enumerated or penumbras formed by emanations of enumerated ones?

The judicially created “qualified immunity” doctrine enables law enforcement and other government officials to avoid accountability for civil rights violations if there is no “clearly established law” forbidding what an official did. This means that even minor factual differences between the case at issue and prior cases effectively immunizes the officer from accountability. Are you open to rethinking qualified immunity?

Do you agree that in 1866 Congress intended the 14th Amendment’s privileges or immunities clause (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) to secure rights fundamental to citizenship and individual flourishing? If so, should the court overturn its 1873 Slaughterhouse Cases ruling, which construed “privileges or immunities” so narrowly that this clause essentially disappeared from constitutional law? Is the right to earn a living a “privilege or immunity”? If so, are many occupational licensing laws — often written for factions seeking to restrict entry into their professions — unconstitutional?

In 2004, the U.S. Court of Appeals for the 10th Circuit upheld an Oklahoma law forcing online casket retailers to have (expensive, time-consuming) funeral licenses. The court acknowledged that the law punished one faction (online retailers) to enrich another (funeral directors) but breezily said “dishing out special economic benefits” is “the national pastime” of state and local governments. Should there be some judicial supervision of such practices? Should courts take cognizance of obvious rent-seeking (wielding the law for private economic gain by abridging the liberty of competitors) motives? Randy Barnett and Evan Bernick, authors of “The Original Meaning of the 14th Amendment,” say the guarantee of “due process of law” (emphasis added) proscribes “legislative action that deprives people of life, liberty, or property without a permissible legislative purpose.” Is gratifying rent-seekers such a purpose? So, do Oklahoma’s law and a zillion other rent-seekers’ delights violate the 14th Amendment?

James Madison said the powers delegated by the Constitution to the federal government “are few and defined.” If, however, Congress “finds” that broccoli enhances public health, and that health has a “substantial effect” on interstate commerce, may Congress constitutionally mandate buying broccoli? If not, why not?