This episode of “Sages of the Sun” features an in-depth discussion with Staff Reporter and Assistant Editor A.R. Hoffman on the Supreme Court and Judge Ketanji Brown Jackson’s confirmation hearings.

Mr. Hoffman, who holds an A.B. and PhD from Harvard as well as a law degree from Stanford, covers the Supreme Court and many other topics for the Sun, including art, politics, and baseball.

Caroline Vik:  This week we’re going to be discussing the Supreme Court, the confirmation hearings, and what we can expect from Judge Jackson should she become a Supreme Court justice.  Ari, over to you.  What have you been surprised by?  What are you seeing?

A.R. Hoffman:   Well first of all thank you so much Caroline and Seth and most of all to everyone who’s here.  It’s so wonderful to see the names behind the readers.  Thank you for your support thus far.  From my end and our end, it’s been great fun and a great adventure.   We know and hope it will continue so thank you for being such a big part of it.  I hope that we get to do this in person soon and I’ll see as many of you as possible in the coming weeks.  Well, you know Supreme Court confirmation hearings are always political theater, but like a good show, even if you know the outcome or you know how the play ends, there is still a lot to learn along the way.  The first thing to note is that chances are high to nearly certain that Judge Jackson will be confirmed and will soon, probably the first week in April, see to the Supreme Court as Justice Jackson.  The reason for that is because including Vice President Kamala Harris, the Democrats have the 50 votes needed to confirm her.  If you’re looking whether the Democrats will lose any votes along the way, those of you who’ve been following politics over the past year or so know that Senator Manchin and Senator Sinema have been the two sort of thorns in President Biden’s side.  Although thus far there’s been no indication that they intend to sort of defect relating to Judge Jackson, we have seen Joe Manchin most recently scuttle a nomination.  It doesn’t look like that will happen here.  The next question is can President Biden expect any Republicans to support Judge Jackson?  It’s not looking very likely.  Judge Jackson was very recently confirmed to the Court of Appeals and when she was, she received three Republican votes from Senators Collins, Murkowski, and Graham.  Senators Collins and Murkowski have not yet reported if they will support her again.  The action has really been around Lindsey Graham.  Graham seems set to oppose her.  Remember, he supported another candidate for the seat and that was Judge Michelle Childs from his home state of South Carolina.  Biden ultimately decided not to go with Childs and to nominate Judge Brown.  Lindsey Graham was very critical of that choice at the outset.  Yesterday in the confirmation hearing he engaged in a heated exchange with Judge Jackson and with fellow senator, Dick Durbin.  So it feels like that ship has sailed, I think, in terms of Senator Graham supporting her.

Vik:  Do you think that’s because he’s upset about the pick?  Why would he support her at a lower level and oppose her now?

Hoffman:  A lot of Senator Graham’s criticism of her seems less about her than re-litigating past confirmation fights.  For example, he’s challenged her in ways that 

indicate that he is actually thinking about the heated confirmation battles of Justice Coney Barrett and Kavanagh.  So it seems as if, from my read of it, he’s using this platform to make a point about previous confirmation battles.  A piece that I’m working on today is that this confirmation battle where Judge Jackson will be replacing her old boss, Justice Breyer, will not change the ideological composition of the Court, but the next one very well might.  And with Justice Thomas still in the hospital with very little information about the current state of his health, perhaps some of the kind of hard edge of the questioning the last day or so might be sort of preparation for that next battle. 

Vik:  It seems like this has been less of a contentious battle. Do you think that’s because it’s not going to change the dynamics of the Court, or because she’s a better candidate and there’s less to attack her on? 

Hoffman:  I think the reality is that a pick that won’t change the composition of the Court will be far less significant than one that will.  The truth is that the last two confirmation battles had the potential to change the Court and very well might.  We’re still seeing that play out in real time.  But the replacement of Justice Ginsburg with Justice Coney Barrett is an ideological shift and of course the retirement of Justice Kennedy as a swing voter and this sort of sequence of Justice Gorsuch, Kavanagh, and Coney Barrett have sort of reinforced the Court’s conservative lean.  I also think President Biden’s campaign promise to appoint of black woman to the Court added a certain racial dynamic to things.  Again, it’s interesting to think of Justice Thomas, right?  Currently the only African-American, the only black member of the Court.  And his health, we will have to track that in the weeks ahead.  Just to fill people in a little bit on the substantive matters in addition to the politics, what has sort of emerged here is that one, Justice Jackson’s promise to recuse herself — meaning not to sit in hearing the upcoming affirmative action case against Harvard this coming fall.  This is a story we’re tracking very closely and I’ve reported on — Justice Jackson is currently on the Board of Overseers at Harvard, the highest governing body at Harvard.  So that takes one vote out.  Obviously affirmative action is something Justice Thomas has long been a great opponent of.  So that dynamic bears watching in the months to come.  The other is I think the real rise of culture issues in this nomination.  By that I mean a focus on things like critical race theory.  There was sort of a remarkable moment where Justice Jackson was asked if she could define what a woman was.  She hesitated to do so saying that she wasn’t a biologist.  My sense is that this might be previewing, not the next confirmation battle, but the 2022 and ultimately 2024 election cycle, and that Senate Republicans are road testing what they think are winning cultural arguments. 

Vik:  Diving a little deeper into the substance, what has emerged about her, her world view, her judicial philosophy?  What have we learned about her and her approach?  What should we expect from her if she ends up on the Court which it appears she will?

Hoffman:  I would say a couple of things.  The first, and this is something I’ve covered, she would be the first justice to have served as a public defender.  Evidence shows that there aren’t very many judges who have served as public defenders, just around 8 percent of federal judges, and they are more lenient on criminal justice issues like sentencing and incarceration.  Of course the caveat there is that most criminal law in America is a state issue so it’s unlikely that she’ll be ruling on a large number of criminal cases where that would come up.  That has been an issue in the confirmation hearing because she represented a detainee at Guantanamo Bay.  Senator Graham, who is especially interested in foreign policy, highlighted that.  Of course federal defenders don’t pick who they represent.  Generally, they’re assigned to that.  Another interesting moment has been a back and forth on her judicial philosophy.  This is something that often comes up in these confirmation hearings.  Now Chief Justice Roberts has famously used the metaphor of an umpire, that a justice is meant to call balls and strikes, not to take sides.  Interestingly, Justice Jackson has mentioned she doesn’t have a philosophy, she has a methodology.  Her approach is to begin with a neutral stance and then hear sort of both sides and arrive at a decision.  Of course that’s not groundbreaking, but her hesitation to articulate a judicial philosophy might be worth remembering and perhaps give her the widest possible girth when she ascends to the Supreme Court.

Vik:  Is that a unique thing to say “I don’t have a philosophy.  I have a methodology?”  How common is that kind of take?

Hoffman:  It’s a little unusual in that no judge in the confirmation hearing is going to show their cards in that way, but her hesitation to articulate any sort of guiding principles, I think, is sort of unique.  It tracks a little with the thinness of her judicial history.  I think the difference would be if you had someone with a thick stack of judicial opinions their philosophy might be legible even though they didn’t articulate it publicly.  With her we have this interesting combination where she served as a district court judge for a while, but generally district court judges aren’t involved in the same sort of conceptual concepts as appellate judges and she was only an appellate judge for eight months.  So there is sort of a blank slate element here.  One part of her past that has come up has been her role as part of the Sentencing Commission.  A line of attack, sort of spearheaded by Senator Josh Hawley and others, is that she displayed leniency in her sentencing over time and over the years.  There’s been some dispute about that sentencing and sentencing guidelines.  It’s a notoriously difficult area of the law.  I think Senator Hawley has scored some rhetorical points showing that, especially cases regarding sex offenders, she has oftentimes sentenced more leniantly than the guidelines would indicate.  So long story short, all indications are that she would be a reliable vote on the left in the Court, if not necessarily one of its intellectual leaders.  I think someone like Justice Sotomayor is a fair comparison.  

Vik:  One of the moments I did see and wanted to ask you about, she talked about precedent and the importance of precedent, and vertical precedent versus horizontal precedent.  As someone without a legal background, I was struck and wanted to know more.  What can you tell us about her philosophy with respect to precedent and how it might be the norm or different in some way?

Hoffman:  This always comes up in Supreme Court hearings, their attitude towards precedent.  The reality is that question has less salience in Supreme Court thinking because of course the Supreme Court is not bound by precedent, right?  It’s not bound by its own precedent.  Of course it doesn’t perhaps run to overturn precedent or overrule cases, but on the other hand, it’s free to act as it will.  [There are] two examples of cases coming up, one is the affirmative action case that I mentioned will be heard this fall.  And there it’s very much on the table that the Supreme Court will overturn its own precedent in the case of Fisher v. University of Texas and others, allowing for race conscious admission to higher education.  Another example is that the Court will explicitly overturn Roe v. Wade and the constitutionally guaranteed right to abortion.  Of course the Court can do that.  The question of precedence in the Supreme Court is a strange one to focus on, but all indications are that she does seem to be espousing a sort of judicial modesty back to the methodical point and a larger philosophy.  There are cases in the pipeline that will demand or invite the Court to overturn its own precedent in significant ways.

Vik:  Interesting.  In addition to those two emerging court cases, what else do you expect the Court to rule on in the coming months?

Hoffman:  Well two things that jump to mind is there’s a case that recently heard arguments that centers on the ability of the EPA, Environmental Protection Agency, to kind of regulate in an ambitious way emissions and other environmental issues.  The scope of the EPA is always an open question.  It’s especially interesting now around environmental disputes and also disputes around fuel and gas and energy independence relating, of course, tangentially to and importantly to the war in Ukraine.  So that’s one issue.  The other is the religious freedom case that builds on the case of Masterpiece Cakeshop [v. Colorado Civil Rights Commission], which some of you might be familiar with, which involved a baker in Colorado who refused to make wedding cakes for gay weddings and this is another bite at that apple.  The question is can someone be compelled, and this involves an online stationery maker of sorts, to service customers with whom she has an ideological disagreement?  That’ll be an interesting case, I think, around First Amendment freedom of speech and religious freedom.

Vik:  I want to ask you a little bit about the culture at law schools.  You’ve been writing about Yale Law School.  I’m curious about Harvard as well.  As you know, the vast majority of the Supreme Court judges come from these two schools.  I’d love to get a little color from you in terms of the culture from which they come.

Hoffman:  The first thing to note is that in conversations about the Supreme Court’s diversity, one argument for Judge Childs, who President Biden ultimately chose not to go with, is that she had not gone to an Ivy League school.  So the question of diversity of institution is one that still remains in terms of the High Court.  In the current Court, of course, you have an equal amount.  Four Justices have gone to Harvard, four have gone to Yale.  The only outlier there is Justice Coney Barrett who went to Notre Dame.  So that’s one thing.  But that sort of invites the question of what are the future justices of these institutions, how are they learning?  I think the answer is dispiriting.  I think a lot of the trends that have first flowered on undergraduate campuses are now extending to younger students in both middle school and high school and also to graduate school.  So you have, on both ends of the spectrum, I think, this real pervasiveness of ideology.  Whether you call it wokeness or intersectionality, whatever it is — you kind of know it when you see it to quote a Supreme Court justice — that is really transforming how law students think of themselves and think of the Constitution.

Vik:  What do you mean by that?

Hoffman:  Well, now there’s sort of an increasing suspicion and hostility towards the Constitution.  One in a historical sense, the notion that it is a document produced by men who owned slaves.  You know, that sort of historical thinking has been around for a while, but increasingly it’s not just a historical kind of taint of the Constitution, but it’s sort of a hostility too.  My piece today really explores this in depth — the idea of freedom of speech as enshrined in the First Amendment to the Constitution.  The notion that freedom of speech is not an absolute value and that it should be subordinated to correct kinds of speech or that the harm that can emerge from freedom of speech is not worth it should be muted and more intensely regulated — and this an interesting historical position in terms of intellectual history.  It was often, in the past, the left who advocated for freedom of speech.  What we’re seeing now is a real suspicion and hostility in parts of the progressive left towards freedom of speech.  Remember, every lawyer — and I have my bar card in my pocket — to be a member of the bar, must swear an oath to the Constitution.  A legal analyst and Harvard Law graduate went on The View a couple of weeks ago and said the Constitution is trash.  Ibram Xolani Kendi, the sort of leading light of anti-racism, suggested that the Constitution be amended, to change it, and to make anti-racism an integral part of the Constitution.  The Overton window, the range of acceptable opinions around constitutional issues — within the legal community — is really shifting before eyes.

Vik:  It seems deeply complex.  On the one hand, if you believe in absolute freedom of speech, all discussion by the Constitution should be fair game.  But then how do you have new lawyers swearing an oath to the Constitution that they may or may not think is trash?  What is the right balance there?

Hoffman:  Just one example to highlight that tension, if I can.  I also teach at NYU and after the Kyle Rittenhouse verdict, do you remember?  Kyle Rittenhouse was the young man who ended up at a protest in Wisconsin.  He had a gun on him and ended up using it.  After he was acquitted by a jury, and what everyone thinks about how he ended up there, but the evidence for self-defense, I think, was strong.  An administrator at NYU sent an email to the whole school that suggested that this was evidence of the rot of the American legal system, and sort of white supremacy, and a grave injustice.  There’s a tension there between a certain narrative about American law and the fact that this was a trial by jury that proceeded based on evidence that reached a certain outcome.  So there’s a way in which the kind of due process of the law no longer seems as compelling to people as a kind of vision of what the law should be doing.  And the laws are built around respect for process, right?  So when the process is no longer compelling, you know, certain outcomes or certain demands are expected.

Vik:  Just to tie it back to precedence and standards for free speech, what kind of historical precedent has there been in the past around constitutionally acceptable limits on free speech?

Hoffman:  It’s a great question and the first thing to say is that the First Amendment prohibits the government from abridging your freedom to speak, right?  So it’s framed in the negative.  The question, of course, well what is that abridgment?  What does abridgment mean?  When is it operative?  When is it valid?  So I think the easiest way to tell the story is that there were two broad eras.  The first is encapsulated in a Supreme Court case called Schenck [v. United States] by Oliver Wendell Holmes, a very great American jurist and lawyer.  Many of you might be familiar with it.  This is the fire in the theater test.  You can’t be in a crowded movie theater and yell “fire.”  Now you might say, “Well why not?  I have a right to speak.  I can say whatever I want.  Well the issue is, if your speech presents a clear and present danger, we can limit your speech.  That danger is especially present during wartime.  Schenck itself involved an objector writing letters to American soldiers telling them not to fight and the Court said you can’t do that.  This is directly affecting the war effort.  That standard was also used to limit things like pornography and obscenity.  The idea was that the government had a certain right to regulate speech, not absolute, but also not zero.  That has now given way to the strict scrutiny test or compelling interest test.  Basically for the government to regulate speech, it has to show a very, very high need to regulate that speech.  I just want to make one more point.  When we talk about freedom of speech we have to differentiate.  Remember the Constitution only applies to government action.  If I try to limit your speech, Caroline, that’s not a constitutional violation.  At schools like Yale or other instances of freedom of speech that catch the headlines, oftentimes it’s not really a constitutional question, it’s a question of values.  So if you’re canceled for example, that’s not really a constitutional violation, right?  It might be a violation of labor laws or some kind of discrimination, but it’s not constitutional speech.  It’s about the kind of society we want to live in.  The Constitution has always had that dual role.  It’s both the supreme law of the land and also the kind of script for our values and culture.

Vik:  Excellent point.  Seth, would you like to jump in?

Seth Lipsky:  It’s fascinating.  The clarity with which you unrolled this story.  I’m curious whether you think there could be a major reversal in the law of libel growing out of the Palin suit when it gets to the Supreme Court.  I’m reminded that in the early days of America, the great press freedom case was Zenger.  In Zenger’s case, he was accused of libeling the governor.  The law at the time was the greater the truth, the greater the libel.  In other words, if the governor were really a crook and Zenger said so, he’d hurt the governor more than if he lied about it.  Now it’s completely different.  It’s falsity which leads to a presumption of malice and I’m just wondering if you think the whole thing could turn around again.  

Hoffman:  That’s a great question, especially for a newspaper.  We’ve been really fixated on the case between Sarah Palin and the New York Times.  Just to catch everyone up, the Times ran an editorial in 2017 linking Governor Palin, through some campaign advertising, to the shooting of Gabrielle Giffords and the murder of several other people.  That editorial was run in the Times.  There was actually an internal dispute at the Times that immediately began to say, “Hey wait a second.  This is not accurate.”  The Times next issued a correction, however, Governor Palin has challenged that under the law of libel.  Where the case is now, Governor Palin has lost that case in the district court, but there was something strange going on with the judge and the case was handled in this unconventional way.  The next step will be for her to appeal to the Second Circuit in New York as well as she is also appealed to the district court for a new trial.  Please check out our coverage of that if you haven’t.  Governor Palin is hoping to eventually make it to the Supreme Court and to change the standard of libel.  What does that mean?  The current standard dates back to a case from the early 60s called Sullivan v. New York Times.  If a press publishes something false and defamatory about you, that’s not enough.  You can’t just say, “Well it’s wrong and it defamed me.”  You have to show that they knew it was wrong when they published it or that they were so reckless they couldn’t have cared less whether it was true or false.  That is a very, very high standard.  The thinking of that was to prevent public figures from launching lawsuits on stories they didn’t like, to give the press a lot of freedom.  The question now is has that gone too far.  Does it effectively give the press a blanket shield to publish recklessly or publish whatever they want?  That is sort of another issue to watch, and at this point, a flux in terms of the courts and in terms of settled precedent.  It’s just a really interesting time, even if you’re not a lawyer, to be thinking about the legal landscape.  

Vik:  Ari, any closing comments?

Hoffman:  No, I think you’ve seen the issues at hand and what will come before the Court is central as always, but it feels like now are core issues in American life and culture.  I hope you keep reading our coverage and that you write to us with suggestions, or things you’d like to hear more about, or how our legal coverage can be better and how it can touch on the things that you’re interested in.  I should say my colleague, Russell Payne, has been covering New York legal culture very assiduously.  So there’s larger federal constitutional questions and then a lot of these very same questions are being played out in a specifically New York context.  

Lipsky:  You’re thinking of redistricting and what else?

Hoffman:  I’m thinking of redistricting.  Of course one issue in the Palin case is what is the difference between New York libel law and federal libel law?  That has come up as well.

Vik:  Alright.  Thank you all very much for joining today.  It was fascinating to hear from you, Ari.  We’ll talk to you all next week.

Sages of the Sun is a weekly podcast produced by The New York Sun, a paper committed to reviving the finest journalistic traditions and upholding its motto, “It Shines For All.”

Seth Lipsky is a seasoned veteran of the news business, and among the most revered American editors. Among many other things, he spent 20 years at the Wall Street Journal, started the Jewish Daily Forward, and brought the Sun back to life in 2002.

Caroline Vik has more than a decade of experience in policy-making, with years spent on the Senate Foreign Relations Committee, at the Department of Defense, and on the National Security Council.