Sen. Mike Lee (R., Utah) questioned Judge Jackson Tuesday regarding the Ninth Amendment, a catchall provision of the Constitution stating that the people may retain rights beyond those specifically listed.
The amendment states that “the enumeration in the Constitution, of certain rights, shall not be constructed to deny or trigger others retained by the people.” With the amendment, James Madison wanted it to be clear that the Bill of Rights was not the end-all of individual rights.
If a court were applying the Ninth Amendment, Mr. Lee asked, should it look to what unenumerated rights the framers would have recognized in 1791, or those that have come into focus in subsequent times?
Judge Jackson said she would weigh the Ninth Amendment as it was understood at the time the amendment was adopted. Like previous nominees, Judge Jackson is largely sticking to describing her Supreme Court precedent rather than offering opinions of her own.
President Biden has cited the Ninth Amendment to support the proposition that the Constitution protects unenumerated rights including privacy, which the Supreme Court has recognized to cover the marital relationship and, in the 1973 case, Roe v. Wade, abortion before fetal viability.
Mr. Biden has said that his Supreme Court appointees would share his expansive view of individual rights, something that crystallized in 1987, when, as chairman of the Senate Judiciary Committee, he presided over confirmation hearings for Reagan nominee Robert Bork. Judge Bork took the opposite view of the Ninth Amendment, calling it an “inkblot” too opaque for courts to apply. The Senate rejected the Bork nomination, 58-42; a later Reagan nominee, Anthony Kennedy, was eventually confirmed for the vacancy.
Mr. Lee asked Judge Jackson if the president had discussed Ninth Amendment questions with her. She said no.