WASHINGTON—Sen. Mazie Hirono could have justifiably uttered the word “Trump” when talking with Judge Ketanji Brown Jackson about the U.S. Supreme Court’s GOP-named six-justice majority, but she didn’t.
“Ideology Trumps facts” would have been her perfect phrase.
Instead, the progressive, soft-spoken Hawaii Democrat played it straight in questioning Judge Jackson, Democratic President Joe Biden’s nominee to the nation’s top bench.
But given the history of who’s on the High Court and why, to describe the majority’s tendencies with that shorthand summary makes sense.
Using the majority’s 2018 anti-worker, anti-union decision in Janus v AFSCME District Council 31 as an example, what Hirono said on March 22 was: “Justices should not” set aside precedents in favor of “some individual or ideological agenda at the expense of rights.
“But we are seeing more cases decided on ideology, not on facts and not on the law.” Hirono cited Janus, then added the court’s recent rulings on “the right to pregnancy.”
That statement prefaced her question to Judge Jackson about the majority’s high-profile jettisoning of Supreme Court precedents. Judge Jackson’s reply reaffirmed her allegiance to precedent—following past decisions—except in unusual circumstances.
While the senator cited Janus, Judge Jackson reiterated the rule of following precedents should cover reproductive rights. The six-person majority is widely expected to drastically curtail, if not outright overturn, the reproductive rights precedent this year, in a case involving a Mississippi anti-abortion law.
Following precedents bolsters the law, the courts, and the country, Judge Jackson stated. Precedents should rule unless they’re “egregiously wrong,” or facts, attitudes, and/or science dictates the High Court should change its mind.
“Stare decisis,” the Latin judicial term for standing by precedents, “provides stability and predictability. All Supreme Court cases are precedential and binding,” she said. The pro-choice rulings, including the key first one, Roe v Wade—now 49 years old—“have been reaffirmed and have been relied on,” ever since by women and their lawyers.
The “Trump” point is relevant. Former GOP Oval Office occupant Donald Trump named exactly half—three—of the current six-person GOP majority, cementing its right-wing ideological control of the court: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Barrett and Kavanaugh weren’t on the court when justices decided Janus four years ago. But Trump picked them, and Gorsuch. All three passed muster with the right-wing legal ideologues of the Federalist Society.
Even when she joins the bench, Judge Jackson won’t change the court’s ideological lineup. She would succeed one of her mentors, progressive Justice Stephen Breyer, part of the three-justice minority.
The 5-4 party-line Janus decision gave the nation’s corporate class and its venal, vicious worker-hating National Right To Work Committee legal defense fund a big win in a case they deliberately constructed to try to destroy unions by taking their money away. Hirono didn’t mention that background, either.
Instead, she went through the judicial history of Janus. There, the majority ruled every state and local government worker could be a “free rider,” able to use union protections and services and take advantage of union contracts, without paying one red cent for them.
Janus actually began, the senator explained, with a footnote from Justice Samuel Alito in another anti-worker ruling, Harris vs Quinn. In that 2014 case, the 5-4 GOP-named majority said Illinois legislators could not mandate a union shop for the home health care workers whom the Service Employees had organized. The Janus case was from Illinois, too.
But that case confined itself just to the home health care workers. Alito went further.
His footnote opposed the pro-union, pro-worker precedent of the Supreme Court’s 1977 Abood ruling. Abood said public worker unions could collect “agency fees” from all non-members they represent. Both Harris and Janus backed the corporate class’s union hate. In short, the right-to-work crowd took Alito’s footnote and ran with it, eventually triumphing in Janus.
In 2018, Alito wrote for the GOP majority, overturning that 41-year-old precedent.
Agreeing with Hirono about upholding precedents, except in rare circumstances, Judge Jackson cited one of the most historic exceptions: The 1954 Brown v Board of Education decision. That’s when the justices, 9-0, outlawed legal segregation, reversing the court’s “separate but equal” 1896 Plessy v Ferguson ruling.
“The Supreme Court looks at various factors” before deciding to overturn precedents, Judge Jackson replied, giving her potential colleagues the benefit of the doubt.
“Stare decisis,” the Latin judicial term for standing by precedents, “provides stability and predictability. All Supreme Court cases are precedential and binding.”
There’s one more quote the senator could have used to describe the Supreme Court majority. It came from the late, and relatively obscure, Rep. Earl Landgrebe, R-Ind., in 1974, explaining why he went down the line with Richard Nixon even as Nixon was going down the drain in Watergate.
“Don’t confuse me with the facts. My mind is made up,” Landgrebe said then.
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