Judge Brown Jackson and the Slippery Hold on Reality
America is a house divided against itself. As Abraham Lincoln would remind us, it cannot stand much longer in this condition. The division runs deeper than it ever has in American history, even deeper than it did in 1858, when Lincoln gave his House Divided speech. In 1857 when the Supreme Court of the United States decided Dred Scott v. Sandford, and again in 1973 when it decided Roe v. Wade, Americans divided over the fundamental question whether all human beings are natural persons before the law, entitled to basic civil rights and the equal protection of the law. The Court was on the wrong side of the question, and of the Constitution and the law, on both occasions.
Today, at stake is whether the Court will deny the very possibility of knowing truth, of understanding reality. In several decisions in recent years, the Court has come alarmingly close to denying reality its rightful place in our deliberations and actions. In 2015, the Court told states that they must ignore reality and must state in their official records an obvious falsehood, that there is no difference between natural marriage and same-sex couplings. A year later, the Court commanded states to deny the reality that every human being has a biological mother and father, and to affirm the obvious falsehood that a child might emanate from two mothers or two fathers. And now activists are pushing the Court to command states to deny the obvious reality that male and female are given in human nature.
The rule of law presupposes that there is truth to know, and that we can know it. Most elites now seem to think there is no truth, or that we cannot know it. Most normal Americans disagree, and we watch in dismay and horror as elites erode the norms and institutions that preserve our ability to understand what is real and true.
The division is nowhere more evident than it was in a recent exchange between Senator Backburn of Tennessee and Judge Ketanji Brown Jackson, nominee to the Supreme Court of the United States. Because the Court has arrogated law-making power to itself via the unconstitutional doctrine of judicial supremacy, and because several of the Justices are now blatantly lawless in their deliberations, Senate confirmation hearings have become much-watch television theater. So, the Blackburn-Jackson exchange excited a lot of attention.
Sen. Blackburn: “Do you agree with Justice Ginsburg that there are physical differences between men and women that are enduring?”
Judge Jackson: “Um, senator, respectfully I am not familiar with that particular quote or case, so it's hard for me to comment.”
Blackburn: "Can you provide a definition for the word ‘woman?’"
Jackson: "Can I provide a definition? No, I can't."
Blackburn: "You can't?"
Jackson: "Not in this context, I'm not a biologist."
Blackburn: "Do you believe the meaning of the word woman is so unclear and controversial that you can't give me a definition?"
Jackson: "Senator, in my work as a judge, what I do is I address disputes. If there's a dispute about a definition, people make arguments, and I look at the law, and I decide.”
Most people have focused on Jackson’s refusal to state a well-known definition of woman. But note why that refusal matters. Focus on her last two words: “I decide.” When she is sworn into office on the highest Court in the land, that is how reality will be defined.
Here are some truths that I do not decide, and that no one else may decide: I am a man. I am a law professor. I am not a woman. Nor am I a biologist.
In case you’re skeptical of these truth claims, I can prove them. A woman is an adult, female human being. I am male. A male is not a female. I am not female. Therefore I am not a woman.
A biologist is a person who engages in the academic study of living organisms. I am not engaged in the study of living organisms. Therefore I am not a biologist. Some law professors may also be biologists, but I am not.
Here is another truth claim. Judge Jackson is an intelligent woman. Both propositions in that sentence are true, which is to say, they are both statements of reality. Judge Jackson is intelligent. And she is a woman. She is a woman who is more than capable of reasoning. So why won’t she define “woman”?
Her explanation is that she is not a biologist. But if she does not know what a woman is then how does she know that she is not a biologist? The definition of biologist is more conventional—less determined by reality—than the definition of woman.
Yet Judge Jackson seems to know what a biologist is. If so, does that make her a philologist? If she knows what a philologist is, then is she an epistemologist? If she is not an epistemologist then does she know anything?
Of course, one need not be an expert in language or human understanding to know what a biologist is. Anyone can understand why it is rational to study plants and animals. And anyone can understand that “biologist” is the word for a person who studies plants and animals.
For the same reason, one need not be a biologist to know what a woman is. Anyone can understand the differences between male and female. And anyone can understand the ways on which those differences matter (and the ways in which they do not).
The correct definition of “woman” is therefore not a matter for legal adjudication. It is part of what jurists have long called the “superior law,” which legislators and judges are not competent to define or specify, but which is given as a matter of nature and reason. Just as a judge cannot judge according to law without obeying the principle of non-contradiction, a judge cannot judge according to law without obeying what reason teaches about the reality of “woman.”
Judge Jackson knows what a woman is. But she belongs to a community of elite lawyers who are dogmatically committed to two ideologies. The first is known as Legal Realism. It maintains, contrary to reason, that law is just whatever the most powerful judges say it is. The second is a family of ideologies known as critical theories. These theories maintain, contrary to reason, that realities such as male and female (and many others such as price, productive use, logic, and wrong) are entirely conventional, socially constructed by the powerful to define out of existence the subjective experiences of the weak. The combination of these two ideologies makes judges our rulers and frees them from their obligation to obey the law. These ideologies, which now dominate elite legal education, make judges the sovereign, above the law and unconstrained by reason and reality.
If judges will not obey reality—if they will command us to affirm obvious lies—then we are entitled to ask in what sense they are acting as judges, and why we should respect their judgments as judgments of law. As it was in 1857 and in 1973, the Court’s very legitimacy is at stake. That should trouble Judge Jackson and her supporters. The legitimacy of a legal institution such as the Supreme Court is not something real, like “woman” and “biologist.” It exists as a fiction in the minds of those who are supposed to be governed by its judgments. It is a very fragile thing.
Legal fictions matter. They enable us to secure liberty, establish legal justice, and protect the rights of minority groups. But to perform these important tasks, legal fictions must be consistent with pre-legal realities.
It is ironic that elites such as Judge Jackson believe “woman” is such an ephemeral thing even while they assume that the authority of “Associate Justice” is enduring and stable. Their hold on reality is quite slippery.