As senators consider Judge Ketanji Brown Jackson’s Supreme Court nomination, Republicans have been eager to have a larger conversation about judicial philosophy. More specifically, GOP senators appear to have some thoughts they’re eager to share about the scope of federalism.
The party’s vision was on display a few days ago, for example, when Sen. Marsha Blackburn said the Supreme Court’s Griswold v. Connecticut ruling from 1965, which struck down a state law restricting married couples’ access to contraception, was “constitutionally unsound.” The Tennessee Republican’s point, evidently, was that if states want to block access to birth control, they should, as a matter of legal principle, be able to do so without federal intervention.
Yesterday, as NBC News noted, another GOP senator took a stroll down the same politically treacherous road.
Sen. Mike Braun, R-Ind., said the Supreme Court shouldn’t interfere with legislation, such as interracial marriage, and should have left those decisions to individual states.
The Indiana Republican had already fielded a series of media questions in the same interview in which Braun repeatedly made the case for state officials, not federal officials, making their own decisions on a range of policy issues, including abortion rights and marijuana legalization.
And so, journalists pressed further about the implications of such a philosophy, asking the GOP senator, “Would that same basis [apply] to something like Loving v. Virginia, the Supreme Court case that legalized interracial marriage?”
Braun responded, “When it comes to issues, you can’t have it both ways.” A reporter soon after sought to clarify matters further, asking, “So you would be OK with the Supreme court leaving the question of interracial marriage to the states?”
The Hoosier added, “Yes. I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too. I think that’s hypocritical.”
It was a jarring exchange for all the obvious reasons: A sitting U.S. senator in 2022 argued, out loud and on camera, that if states want to ban interracial marriages, the Supreme Court should stay out of it.
The fact that Blackburn balked at Griswold was at least in keeping with recent conservative trends: That ruling established a constitutional right to privacy, which later served as the foundation for Roe v. Wade. Republican criticisms of the Griswold precedent are provocative, but not unexpected.
But for a Senate Republican to also question the Loving v. Virginia from 1967 is even more extraordinary in contemporary American politics.
As NBC News report added, it didn’t take long for Braun’s office to walk this back, saying the senator “misunderstood a line of questioning.” I suppose that’s possible, though it’s a difficult explanation to accept at face value: There didn’t appear to be any audio problems during the interview, and the Republican lawmaker had already answered a series of related questions about the same topic.
Indeed, even if one is inclined to believe that Braun was unfamiliar with the specific case name — he's not a lawyer by trade — the reporter asked if he was comfortable with “leaving the question of interracial marriage to the states,” at which point he said, “Yes.” It’s far from clear what it is he might have “misunderstood.”
The more plausible explanation is that Braun was pushed to consider the implications of his own ideology, at which point he made a mistake by accidentally saying what he appeared to genuinely believe.
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