According to Cornyn, the whole issue of same-sex marriage should be left to politicians, not judges.
Jackson didn’t take the bait to weigh in on that specific issue, but she did express sympathy for the approach Cornyn advocated. That’s generally what’s meant by a “limited” view of the judicial role and of judges “staying in their lane.”
Of course, that doesn’t mean that Jackson disagrees with the outcome in the Obergefell case. Indeed, it seems extremely unlikely that she does. But Jackson’s statement about the limited role of the judiciary shows how conservatives have won this rhetorical fight.
It’s not clear that Jackson’s embrace of conservative language is anything more than rhetorical. Based on her record and background, it’s likely that she’ll vote like the two other liberals on the court, Sonia Sotomayor and Elena Kagan. Nor will Jackson’s use of this kind of language in her confirmation hearing get her many Republican votes for confirmation. But language matters, and the way we talk about the Constitution often dictates what the Constitution comes to mean.
Again, even though Jackson clearly embraces Brown, her rhetoric shows how much the originalists have won the rhetorical battle.
It’s highly debatable whether we as a society should be bound not just by words written hundreds of years ago, but by the world views of the people who wrote those words. The world has changed in untold numbers of ways; so, then, should our understanding of the Constitution. That is not the same thing as saying that judges and justices can find anything and everything in their interpretations of the Constitution.
To be sure, Jackson said her analysis would start with the principles established by the Framers, but it’s inevitable and appropriate that we think in a modern way about the words of the Framers.
Still, that kind of talk, even from a nominee of a Democratic President, is nearly off limits. The Constitution will always be a living document, whether we acknowledge it or not, but conservatives have won a major victory in making it difficult to say so.