President Biden nominated Judge Ketanji Brown-Jackson for the soon-to-be-vacant Supreme Court seat. With the potential end of Roe v. Wade on the horizon, it is crucial to consider how she might rule on abortion cases. Despite a lack of abortion-related judicial decisions, we have evidence we can consider. It might give an idea of what Brown-Jackson believes on the abortion issue.
First, Brown-Jackson joined the board of the American Law Institute in 2016. Lawyers, judges and legal scholars comprise the American Law Institute, which publishes summarizations of law called restatements. Legislatures and courts widely use restatements in the U.S.
Some are concerned the American Law Institute misrepresents the law to promote their beliefs. The late Justice Antonin Scalia said in Kansas v. Nebraska, “[T]he Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” Brown-Jackson’s involvement with the American Law Institute might indicate a judicial philosophy that goes beyond the text of the Constitution — the sort of philosophy the Supreme Court used to reinterpret the Constitution in Roe v. Wade. If this is the case, Brown-Jackson’s judicial philosophy is nothing less than dangerous to the unborn.
She also co-authored a “friend of the court” brief supporting limitations on speech near abortion facilities. Several organizations signed this brief, including the Abortion Access Project of Massachusetts, Massachusetts NARAL, Religious Coalition for Reproductive Choice and Womancare/Repro Associates. Though this doesn’t definitively prove that Brown-Jackson supports a constitutional right to abortion, it indicates where she leans.