Rewriting the Script: Justice Ketanji Brown Jackson’s Rhetoric of Progressive Originalism

This study examines Justice Ketanji Brown Jackson’s distinctive voice of judicial resistance. An examination of key touchpoints over her first year on the US Supreme Court—her confirmation hearings, her questioning at oral argument in Merrill v. Milligan, and her dissenting opinion in Students for Fair Admissions v. University of North Carolina, reveal how a rhetoric of progressive originalism animates her voice on the court. I argue that Justice Jackson challenges the traditional logics of conservative originalism by seizing historical interpretive ground, elevating the progressive aims of the Second Founding, and centering the ongoing struggle for race equality within the American ethos. Rhetorical analysis of this term provides key insight into Justice Jackson’s effort to rework the aims of originalism, confront traditions of epistemic violence in the law, and challenge the conservative doctrine of race-neutrality.