GOP Sen. Cruz repeatedly questioned the Supreme Court nominee about the concept. She said she has not studied it and does not use it in her work.
An extended line of GOP Sen. Mike Lee questions about “unenumerated rights” in the Constitution may have seemed academic, but Lee was implicitly getting at some of the most controversial and impactful areas of constitutional interpretation that the Supreme Court deals with.
Cases wrestling with issues like abortion, voting and privacy often lead the Supreme Court to flesh out rights the court says the Constitution implicitly protects. These so-called “unenumerated rights” are contrasted by the “enumerated” rights laid out explicitly in the Constitution, like the Second Amendment’s right to bear arms. Conservatives have pointed to rulings relying on an unenumerated rights — like the decisions enshrining abortion rights that built upon earlier rulings finding a right to privacy — to arguing that judges are improperly acting as policymakers, and not legal interpreters.
On Tuesday, Lee drew Jackson’s attention to the Constitution’s Ninth Amendment, which says “numeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Lee asked Jackson what rights had been identified as flowing from that amendment, to which she responded, “as I understand it has not identified any particular rights flowing directly from the Ninth Amendment; although, as you said, the text of the amendment suggests that there are some rights that are not enumerated.”
Noting the “considerable debate” around how courts should go about determining such rights, he asked Jackson about how courts should go about interpreting what rights can be derived from that provision. He wondered whether it’s been left purely to the discretion of the Supreme Court and what the justices “deem appropriate at the moment,” rather than historical precedent.
Jackson said that “one of the constraints” that binds her approach is the text of the Constitution and “what it meant to those who drafted it.”
GOP Sen. John Cornyn, earlier in the proceedings, came at the feeling conservatives have about the Supreme Court going beyond what the Constitution dictates from a different direction, in a series of questions about the Supreme Court’s 2015 same-sex marriage ruling. He expressed skepticism of the basis of that a ruling, a legal concept of “substantive due process,” which the court derived from other parts of the Constitution that call for “due process” protections.
“The Constitution doesn’t mention anything about substance when it talks about due process, the 14th Amendment and the Fifth Amendment don’t talk about substantive due process; it talks about due process of law,” Cornyn maintained.
