Justice Ketanji Brown Jackson says some foolish things

The Justices of the Supreme Court make their living with words. They read them, they write them, they speak them, they listen to them, and they rule with them. We currently have a Justice who uses words very poorly.

At her confirmation hearing before the Senate, Justice Jackson was asked to give a definition of “woman.” That’s a legitimate question, since many legal matters depend on whether a given person is a woman or a man.

Her answer was:

“I can’t. Not in this context. I’m not a biologist.”

Jackson was of course dodging the question. Fine, that’s what you do when you’re being cross examined by a hostile questioner. But the unartfulness of her dodge was striking. A person trained and working with the tool of words should have been able to craft an answer along the lines of:

We all know that words can mean different things in different settings. In the case of the word “woman,” there is of course a traditional definition in genetics which is ‘a person with two X chromosomes.’ We also know that there are people in the world without two X chromosomes who view themselves as women. I respect their views of themselves, just as I respect the views of geneticists. I can’t say without the particular facts of a case in front of me how those views should be weighed, if at all, in a court of law.”

Blah, blah, blah, right? Yes, but that’s the point of an artful dodge – don’t give the questioner a sound bite. Jackson didn’t seem to recognize that she’d handed her questioner – and her present and future critics – a sound bite that will live forever.

Jackson was confirmed along party lines by the Senate, and joined the Supreme Court. One of her first cases was the Harvard affirmative action case where the Supreme Court struck down Harvard’s policy of discriminating against Asians and whites and in favor of Blacks. She dissented from the decision.

In her dissent, Jackson contended that the mortality rate of Black babies is greater when they are under the care of non-Black doctors. Her point was that unless we discriminate in favor of Black medical school applicants, more Black babies will die at the hands of racist white doctors. (She also got the arithmetic wrong in suggesting that more Black doctors could increase the survival rate of Black babies to a figure far in excess of 100%.)

The accusation that white doctors are racist against Black babies to the point that they let them die, is wild. Unsurprisingly, it’s not true.

Jackson had apparently cribbed this accusation from a brief filed in the case by a non-party that supported the Harvard affirmative action policy. Neither Jackson nor her three clerks bothered to check the accuracy of it. After Jackson’s decision was published and her accusation was challenged in the public forum, the non-party essentially admitted that it was false.

However, Jackson never did admit that. Between the time her dissent was released and the time it was formally published in the Supreme Court reports, she could have corrected it – as occasionally happens in cases – but she didn’t. The formal Supreme Court decision in the case forever contains this false and inflammatory accusation that in the year 2023 the nation’s white physicians were killing Black babies by refusing to care for them properly.

This past week, the court heard an important First Amendment case about whether the government can pressure social media companies like Facebook to censor what the government deems “misinformation.”

The case was in the context of COVID a few years ago, when the government urged social media to censor materials that ran counter to the government policies on vaccines, social distancing, school closures and the like – policies that proved in large part to be wrong-headed and harmful.

Jackson confronted the lawyer who was challenging the censorship:

“My biggest concern is that your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods.” 

Well, yes, that’s the point of the First Amendment. It’s to “hamstring” the government in its effort to censor viewpoints the government doesn’t like. We call the first ten Constitutional Amendments the “Bill of Rights” because it sets forth rights of the people, not because it sets forth rights of the government.

The government is not without remedy in the circumstance where people say things that are untrue. It can counter what it deems “misinformation” with accurate information. It’s been said so many times that it’s now axiomatic in American jurisprudence and political philosophy: The way to correct bad information is with good information, not with censorship.

Jackson could just as well worry that the Second Amendment hamstrings the government’s effort to disarm the citizenry (and I suspect she does) or that the Fifth Amendment hamstrings the government’s effort to take private property without due compensation.

Rather than taking a potshot at the First Amendment by decrying its constraints on government authority, Jackson could have expressed her concern much more eloquently. She could have said something like:

“We’ve always said the First Amendment is not absolute. The classic example is that a person does not have the right to shout ‘FIRE’ in a crowded theater. The question here is, does a person have a right to shout ‘THE VACCINE DOESN’T WORK’ in the midst of an epidemic? So, tell me, Mr. Lawyer, where do you draw the line?”

I’ll assume that Jackson’s muddled words do not reflect muddled thinking. She’ll probably get better at her judging craft, and perhaps learn to lie low in the meantime rather than seeking the spotlight.

I’m reminded of an aphorism. Better to stay quiet and let people think you might not know anything, than to open your mouth and confirm it.