Sen. Kennedy questions Judge Ketanji Brown Jackson about separation of powers between Congress and the courts
Sen. John Kennedy, R-La., questioned Judge Ketanji Brown Jackson as the Senate Judiciary Committee continued its Supreme Court confirmation hearings March 23. Kennedy asked the Supreme Court nominee about the tension between judicial power and judicial restraint. He raised the concept of substantive due process, which he characterized as a self-given authority that allows federal courts including the Supreme Court to glean “unenumerated, unmentioned rights” through its reading of the Constitution. Kennedy asked Jackson if that process is akin to making policy.
Jackson said that the Supreme Court interprets revisions of the Constitution, and that there are provisions of the Constitution that require interpretation because the text of the document alone doesn’t answer every question that comes before the Court. She noted that the words “due process” do appear in the Constitution, for example, but that the question is what that provision covers.
“The role of the judiciary is to interpret the law,” Jackson added. She said that when an argument regarding the violation of the Constitution’s due process clause comes before the Court, it’s within the Court’s role to determine whether that argument is justified.
Kennedy went on to ask who she thought should make decisions regarding rights that aren’t explicitly laid out in the Constitution. He asked whether she believes the “values of ordinary Americans and their ability to decide” various issues is “just as good” as a majority of Justices on the Supreme Court.
Jackson reaffirmed the importance of the democratic process when it comes to making policy, adding the caveat that the Constitution protects certain rights in a circumstance that those rights, enumerated or not, may be things that people disagree with.
“Although we have democracy as we do and people vote — and should, absolutely [do so] — we also have a Constitution that protects certain rights against the majority will about those things,” Jackson said.
Wednesday was senators’ final day to question Jackson, who was nominated by President Joe Biden in February to replace retiring Supreme Court Justice Stephen Breyer. If confirmed, she will be the first Black woman on the high court. On the final day of the hearings March 24, the Senate Judiciary Committee will hear from friends and colleagues of Jackson about her temperament and approach to the law.
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