‘What Gives Them The Right To Do That?’ Cornyn Grills Jackson On Unenumerated Rights, ‘Judicial Policy-Making’

Republican Texas Senator John Cornyn grilled Supreme Court nominee Ketanji Brown Jackson on whether her judicial philosophy would lead to her engaging in “judicial policy-making,” during her nomination hearing Tuesday before the Senate Judiciary Committee Tuesday.

Cornyn’s questions began with a line of questioning based on the landmark case Obergefell v. Hodges, which legalized same-sex marriage nationwide. Cornyn pointed out that the Obergefell decision overruled referendums in 32 states and “articulated a new fundamental right,” using a legal doctrine called “substantive due process.”

The Supreme Court articulated substantive due process from a confluence of the 5th amendment and the 14th amendment to the Constitution, but “historically it’s been applied in ways that seem to sanction explicit policy-making by the courts,” Cornyn argued, asking whether “substantive due process” was just a tool used by the court to “hide their policy-making under the guise of interpreting the Constitution.”

“The Justices have interpreted the due process clause of the 14th amendment to include a substantive provision, that the rights to due process, they have interpreted that to mean not just procedural rights relative to government action, but also the protection of certain personal rights related to intimacy and autonomy,” Jackson responded, adding that among those rights are the rights to marriage, abortion, and contraception.

“Well the fact is, is it not, that you can use substantive due process to justify basically any result?” Cornyn interjected. “It’s a mode of analysis by the Court that allows the Court to substitute its opinion for the elected representatives of the people. Would you agree?”

“The Court has identified standards for the determination of rights under the 14th amendment substantive due process,” Jackson replied.

“Who gives them the right to do that?” Cornyn asked. “If it’s not mentioned in the Constitution, where does the right of the court [come from] to substitute its views for that of the elected representatives of the people?”

“The Court has interpreted the 14th amendment to include this component, the unenumerated right to substantive due process, and the Court has said that the kinds of things that qualify are implicit in the concept of ordered liberty or deeply rooted in our nation’s history and tradition,” said Jackson.

Cornyn then shifted to the fact that Obergefell overruled the will of the states in recognizing same-sex marriage. “When the Court overrules the decision made by the people … that is an act of judicial policy-making, is it not?”

“Senator, the Supreme Court has considered that to be an application of the substantive due process clause of the 14th amendment,” Jackson responded.

“Well, one of the things that concerns me is, here is an example of the courts finding a new fundamental right that is mentioned nowhere in the document of the Constitution, that’s the product of simply court-made law we’re all supposed salute smartly and follow, because nine people, who are unelected, who have lifetime tenure … five of them decide that this is the way the world should be.” Citing the 9th amendment, Cornyn then asked, “What other rights do you believe exist? And how could we anticipate what those might be?”

Jackson said she could not answer the question because it was hypothetical, but that substantive due process rights were established by Supreme Court precedent.

Cornyn then laid out the reason why he was concerned about applying what he felt were loose Constitutional doctrines. “As a trial judge, of course, you were bound by Circuit Court precedent, and on the Circuit Court you were bound by the Supreme Court precedent. But as a member of the United States Supreme Court you will be bound by nothing. You will be unaccountable to the voters … So you’re not gonna be able to find the answer in some law book somewhere. You’re gonna be presented with a case is gonna be made [that] this is an unenumerated fundamental right, and the voters, whatever they’ve said is irrelevant, because we, five members of the Supreme Court, are gonna decide what the law of the land should be,” Cornyn said.

You can watch the full exchange here.

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