Supreme Court nominee Ketanji Brown Jackson appeared to admit during her confirmation hearing that she couldn’t recall the basis for the landmark 1857 Dred Scott decision, perhaps the most famous of all Supreme Court cases.
Jackson faced questioning from Senator John Cornyn (R-TX) regarding the concept of substantive due process. Cornell Law School’s Law Information Institute defines substantive due process as the “notion that due process not only protects certain legal procedures, but also protects certain rights unrelated to procedure.”
In other words, the doctrine says due process doesn’t cover only the physical procedures of a case, but also protects other rights in addition to legal procedures that must be carried out by the government as “due process.” Readers may recognize these as having been described as “unenumerated rights,” such as the “right to privacy.”
Drilling down into her legal philosophy, Cornyn asked Jackson, “Why isn’t substantive due process just another way for judges to hide their policymaking under the guise of interpreting the Constitution?”
The Republican senator pointed to the Scott case as having been cited as “a product of substantive due process.”
Jackson replied that she trusted Cornyn’s interpretation but, “I don’t quite remember the basis for the Dred Scott opinion.”
The Dred Scott case that Supreme Court nominee Ketanji Brown Jackson can’t quite recall isn’t an obscure ruling only taught at the highest levels of Ivy League law schools.
It is one of a handful of landmark cases often taught at the high school level.
The Dred Scott case famously decided that slaves were not and could not be citizens of the United States, and is widely denounced as one of the most deplorable decisions in the history of the Supreme Court.
It is, according to the late Justice Antonin Scalia, “very possibly the first application of substantive due process in the Supreme Court.”
But Jackson doesn’t “quite remember the basis” of the case or the application of substantive due process.
The Scott case was effectively nullified by the Fourteenth Amendment after the Civil War, whose first section guaranteed citizenship for “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
President Biden, who admitted prior to nominating Ketanji Brown Jackson that he would seek a candidate based on their gender and the color of their skin, sold the American people on her qualifications when making the announcement.
“I promised the process would be rigorous, that I would select a nominee worthy of Justice [Stephen] Breyer’s legacy of excellence and decency — someone extremely qualified, with a brilliant legal mind,” he insisted nearly one month ago.
“Today, I’m pleased to nominate Judge Jackson, who will bring extraordinary qualifications, deep experience and intellect, and a rigorous judicial record to the Court,” added Biden.
Fox News host Tucker Carlson has been criticized for inquiring on multiple occasions about Jackson’s LSAT scores.
“Biden, sounding maybe a touch defensive, has described Ketanji Brown Jackson as one of this country’s great legal minds. And we certainly want to believe that. For, for real, given that she’s probably gonna be confirmed no matter what we think,” Carlson said Tuesday.
“The question is, is it true? Is she really one of this country’s great legal minds? One way to know, one indication would be her LSAT scores,” he continued.
Carlson added, “Sorry. You’re not allowed to ask. Because asking is racism.”
Jackson also, during her confirmation hearing on Tuesday, said she could not define what a woman is.
“Can you define the word ‘woman?'” asked Senator Marsha Blackburn (R-TN).
“Can I provide a definition? No, I can’t,” Jackson replied adding, “I’m not a biologist.”
There is little doubt Jackson is a very intelligent person. You don’t get to where she is right now without being talented and exceedingly smart.
Perhaps she misunderstood how Cornyn was trying to link the Dred Scott case and ‘substantive due process.’
But imagine for a moment that a nominee under former President Donald Trump – a Gorsuch, Kavanaugh, or Barrett – had uttered these words: “I don’t quite remember the basis for the Dred Scott opinion.”
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