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I don't think this is true. The only time I genuinely couldn't comprehend where she was trying to go in terms of jurisprudence was her questioning in Murthy v Missouri. Aside from that case, she seems fine to me in oral arguments and writes opinions that I just disagree with. She's not stupid or unsophisticated, she's just wrong. Do you have an example of what you're referring to?
She clears the low low bar of not being Sotamayor, but other than that I'd say she is the worst writer on SCOTUS (non-Sotamayor) of the last 4 decades. And she is one of the most partisan. Probably the least gifted non-Sotamayor SCOTUS appointee since Abe Fortas.
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This was certainly my top example, but I don't think it was hard to comprehend. I think it was stupid.
Like, seriously? "The Constitution limits government power, but sometimes we don't like that. What are we supposed to do when the Constitution limits government power in ways we don't like?" This is almost as straightforwardly embarrassing as her inability to answer the question "what is a woman?"
She is similarly stupid in her engagement with issues on race (though Sotomayor has similar problems).
This is not a person who is sophisticated but merely wrong. She's probably smarter than, say, Kamala Harris. But she's definitely bottom-of-the-barrel for SCOTUS, maybe even for the Circuits.
If you read the rest of her comments she says "“I’m interested in your view that the context doesn’t change the First Amendment principles,” Jackson said. “I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech, but not necessarily a total prohibition when you’re talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of a once-in-a-lifetime pandemic.”"
So she is obviously aware that the Constitution limits government power, but she is talking about there not being a total prohibition when there is a compelling interest.
Now you may of course disagree with the fact whether Covid or whatever is such a compelling interest, but I think positing that one question, means she is an idiot, about not understanding what the Constitution does is just cherry picking. The rest of her questioning clearly shows she does know that.
Her question shouldn't paraphrased as
"The Constitution limits government power, but sometimes we don't like that. What are we supposed to do when the Constitution limits government power in ways we don't like?"
but rather as
"The Constitution limits government power, but that limit is not all encompassing. In your view what should the government do when and if it does have such a compelling interest?"
Remembering her question here is in the context of a hypothetical about a viral social media stunt that is causing suicides among teenagers. So she is asking even if people are dying is your position that the government cannot encourage the media companies to suppress these posts. Is that not a compelling interest? And the advocate understands where she is going because he answers, no, the government can use positive speech to condemn the posts but it cannot ask the companies to take them down. So they both understand that government power is limited by the Constitution, what they are going back and forth about is what counts as a compelling interest and where those limits end.
Again, you may think she is wrong about where those limits are, but it is clear she isn't a moron who doesn't understand that the Constitution is there to put limits on government action. She clearly understands that.
I think it's clear that she is kind of a moron (see: "I'm not a biologist"). That aside, there is understanding, and then there is understanding. I'm sure she knows what enumerated powers means. I'm also sure she doesn't give a shit about enumerated powers if the principle happens to get in the way of the result she wants, which constitutes a failure to genuinely grasp the principle and her responsibility to it. That's the problem with results oriented jurisprudence. It's a naked exercise of power; it's illegible and thus illegitimate as a jurisprudence.
That isn't being a moron, that's her toeing the line on the current culture war. And similarly if she does understand it, but is choosing to ignore it, that doesn't make her stupid. I am sure she grasps the principle, she just disagrees over what her responsibility is to it. Which is a good reason to be against her as a justice to be clear! But it isn't the same as not understanding.
People who make themselves deliberately stupid, are still stupid. People who consistently act as if they are stupid, just are stupid. The kind of person who answers "what is a woman" with "I'm not a biologist" is being a stupid person, even if they could in theory generate a wall of text explaining to me why in context it was better to pretend to be an idiot than to give an intelligent answer--that is, even if they have the ability to not be a stupid person.
This is what it means, to be a mistake theorist: I genuinely believe that the people who disagree with me, are making a mistake, and that if they were smarter, it is not a mistake they would make.
For if she is not stupid, well, what remains is for her to be actually evil.
As a mistake theorist, I'm open to the possibility that it's a mistake to be a mistake theorist! But that's where I am right now.
This line of thought is so illogical to me. It's patently obvious that there are incentives to anyone even adjacent to politics to be mealy-mouthed and delicately sidestep questions that don't have a "good" answer. I know people get annoyed at politicans for giving non-answers but the fact of the matter is that giving non-answers actually works well, because politicians often rather slightly annoying many people over enraging a few people. Rather than acknowledge that these incentives exist, and they are quite strong, you're deliberately attempting to take the evasive answer at face value rather than acknowledge that smart people sometimes choose to say dumb things because it's beneficial for them to do so.
For example, lawyers do this all the time. Just because a lawyer states a fact in a tortuous way doesn't make the lawyer stupid, it just means they want to win their case and realize that sometimes even an absurd linguistic distortion that would make their middle school English teacher cry might help them win their case. I don't see a lawyer twist words into pretzels and then conclude "oh this lawyer must not understand English very well"...
A supreme court justice position is inherently a political position in the broad but most accurate meaning of the word (the philosophy of how we govern ourselves), and pretending otherwise does no one any favors. There is not an expectation of complete truth in all of their responses to a nomination board, merely a hope of general integrity.
No, I'm asserting that choosing to say stupid things because the incentives are strong is stupid. There are strong incentives to commit a variety of crimes. Depending on where you live and a host of other factors, there may be stronger incentives to not commit crimes, but on the whole society is better off if people choose to not commit crimes even when they would not be punished for it.
This is like, foundational Western political theory. It's the primary concern of Plato's Republic--should you value what is good and true, or only what is to your advantage? I tend to find Plato's conclusion compelling: that being bad is bad for you, and being bad is actually worse for you if you get away with it, because that makes you a worse person. Whether Justice Jackson is genuinely confused about what "woman" means, or is instead just so corruptible that she thought it would be better to pretend she was confused--either way, she showed herself to be a poor nominee and a stupid person. Sly, maybe? But not intelligent. Not honest. Not the sort of person who values justice above her own social standing.
"But lawyers do this all the time!" You bet they do, and people rightly hate us for it. I left the practice of law because I simply couldn't handle it. It was entirely too much work to live by my principles and make a profit at the same time. I won't say it was impossible, but it often felt that way. I make less than a tenth of what most of my old classmates are pulling down now, the opportunity costs of going into academia were so severe--and I've never once regretted the sacrifice.
Now, you can call that "illogical" if you want, but if you're going to accept that
I'm just going to disagree. It's not impossible to be truthful and also be appointed to the Supreme Court--just very, very hard. So yes: if Jackson is not stupid, then what remains is for her to be actually evil. And yes, maybe it is the kind of piteous evil that infects the vast majority of human beings everywhere in every age, the simple and banal evil of pretending to be good only when doing so will yield direct benefits, or avoid obvious costs. But I'm not going to hold appointees to the Supreme Court to a lower standard of truth and justice than I hold myself. You are free to make a different choice.
I mostly understand and certainly respect your point, but I think you're using the wrong vocabulary, or at least, using words the way most people do not mean them. When we say "intelligence" with regard to anyone in or adjacent to the field of law, we usually talk about some mix of competence, rigorous logic, and holistic grasp of issues including their context. None of which is cast into question here. Of course a SC nominee has double adjacency here, to politics as well as law, and politics might have a slightly different connotation of "intelligent" -- one that may include manifesting this intelligence in all of their comments, but I still don't think that's the prevailing connotation.
Second of all, I don't view her refusal to answer as "corruptible" much less "evil". I view it as a -- correct! -- suspicion that she was being presented with a "gotcha!" question, and decided it was better for her to avoid the question, and that any potential benefit from a frank and honest response was outweighed by the chance of her comments being misconstrued or used as a political cudgel. Plus, she's kind of correct on the face of it. If we're being completely fair and practical, if the question of the definition of "woman" were indeed to come before the court, subject matter experts would be available if the question was one where being incredibly precise were important. In law this is very often the case (the easy cases don't usually make it to the Supreme Court!). Additionally, you'd have plenty of time to consider your exact wording and any implications in great detail. This kind of time and attention to detail cannot be done in any meaningful way in front of a panel during your nomination. In fact, giving an "honest" answer but with an implication you didn't consider is potentially even harmful! Realizing this is a positive trait, thinking before you speak, is it not?
Don't get me wrong. I'm very sad that our current politics makes this a gotcha question in the first place. But her answer improved my opinion of her as a judge. It says more about our current politics than it does about her specifically.
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She could still be smart, and be making a mistake though. Right now, I think you are both very intelligent and wrong. If she is deliberately playing her part, because she knows that doing the opposite would be a huge mistake for her career then she isn't being a stupid person. Nor is she being evil. There are other options in between!
She could just be being a standard relatively self-interested person who both believes in her causes, has internalized what she needs to say to fit in in her social group and would quite like to have an important job.
You know who I think that describes? The vast majority of people. Mistake theory doesn't mean that people can only be stupid or evil. They can be smart but wrong, dumb but wrong, or perfectly average but wrong. They can be subject to social forces and so on.
I also consider myself a mistake theorist for context here. Most people are decent people. There are very few evil people in the world. The difference is i think, that I believe that because we are not rational beings, being smart doesn't get you much closer to being correct. So having reached the wrong belief does not mean you are stupid, or being a stupid person. It is simply very very difficult to ignore the whole social edifice of your society. So that being persuaded by it, tells you almost nothing about the individual in question except that they are a person.
She doesn't have a career to care about. She could be super based on trans issues and there's no way she'd be impeached. She could become a freaking Grand Wizard and probably stay in her position.
The other explanations you are talking about basically boil down to "dumb or evil" as far as I can tell.
Edit: For context, I think a lot of people are super dumb. KB and SS are SCOTUS appointees I think are dumb. They are poor writers even with extremely smart Harvard clerks helping them. I wrote a better draft opinion as a 2L for the judge I clerked for.
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You're just describing conflict theory from the inside view. The essence of conflict theory is saying things you don't believe as means to an end rather than to reach understanding. You can think conflict theory is good and normal, it is, but there is no way to describe knowingly saying wrong things on purpose as mistake theory.
Sure there is, that's why I touched on social pressure and conditioning. It's one of the mistakes (hah!) I think Scott made in Conflict vs Mistake. Most people are not making well thought out rational decisions. They are adopting their beliefs and outlooks not necessarily consciously. Even the Mistake theorists. If someone believes whatever rationalizations they have adopted and thinks the other side will take advantage of a current culture war issue, or because it will hinder their career, or because it makes for an uncomfortable conversation, then they can choose not to do X, or to do Y without necessarily being conflict theorists. Selfishness exists outside of Mistake vs Conflict.
Just lying for personal advantage or for some other reason does not on its own make one a conflict theorist. It is only if she is doing so in the service of politics as war. And just to be clear that may be the case, but her actions here don't tell us because she can also derive personal advantage by lying/not examining her views too much. In other words there are other factors that impact people's decisions beyond conflict/mistake.
But also consider if I am a mistake theorist up for the Supreme court. I believe that my opponents are wrong and misinformed and that the truth could be reached if they only realized the mistakes they are making. But 1) I may not believe I can correct them in this context, with the time available. so 2) Even a mistake theorist might decide that lying or evading in this context is the better option. Mistake theorists can be pragmatic. Because 3) When I am a Supreme Court justice I will have plenty of time to make my arguments I otherwise would not.
The core of mistake theory hinges on why you believe people have different beliefs about politics. But that doesn't mean you also believe you can solve that particular issue easily or quickly. Any Mistake theorist is unlikely to think they can convince Democrats/Republicans they are wrong easily or quickly, because if that were the case it would already have been done. So a Mistake theorist even though they would prefer to settle this with a good old fashioned honest debate can take other options depending on the situation. If Earth was going to be destroyed unless Republicans and Democrats united in 7 days, then even if you felt it was possible to come to a truth and convince people, you may still opt to stage a false flag alien invasion or something. Your political philosophy is only one of the things that impacts your decision making.
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Eh she seems to at least be marginally smarter than Sotomayor. Sotomayor consistently has the most braindead opinions of the entire court.
You may be right about this, I don't have a strong view here. Either way, people who find themselves in high political office based more on their skin color or sex than on their demonstrated merit often end up in over their heads. And yes, when I say that, I get a lot of pushback from people who want to tell me all about Jackson's merits, but like... Biden himself said it. He wasn't even looking for the best candidate, just the most plausible black woman for the job.
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