The retirement of Supreme Court Justice Stephen Breyer opens up the fight for a replacement. As promised, President Joe Biden nominated an avowedly pro-abortion black woman to replace an already pro-abortion justice.
The new candidate is Judge Ketanji Brown Jackson, who enjoys the support of America’s most radical pro-abortion groups. She has favored silencing pro-life advocates saving lives outside abortion clinics and refers to procured abortion as “health care.” Most have little doubt that she will be sympathetic to leftist positions on other moral issues.
However, because she is pro-abortion, she should not be confirmed. It is not just the abortion issue that makes her choice so problematic. It is the legal worldview that approves this moral aberration that is unacceptable.
Not a Personal Prejudice but A Principled Stand
There is nothing personal about this conclusion. No one doubts Judge Jackson’s legal capacities as she graduated from the best law schools in the land. She demonstrates an understanding of current law, albeit from a distorted liberal perspective. No one must oppose her because of her race. Justice is blind, and race should not be a factor in this selection process, although President Biden has certainly made it one.
What should be considered is that she is nominated to be a justice of the land’s highest court. There is no recourse beyond it. These justices cannot be overruled save by Constitutional Amendment or a later ruling. Any errors they commit have repercussions all the way down the American justice system. The choice must therefore be carefully weighed.
Thus, there is one reason, and one reason alone, why Justice Jackson should not be confirmed. Based on her pro-abortion positions, it can be assumed that she will not defend the highest law as a justice of the highest court.
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This criticism is not limited to Judge Jackson. There is no discrimination here since it applies to all candidates nominated to the Supreme Court these days. Until the nomination criteria change, the selection of judges, whether from the left or the right, will always prove faulty.
Defending the Constitution
Someone might object the Constitution is the “supreme law of the land.” It is termed as much in the Supremacy Clause (Art. VI, clause 2). All candidates to the Supreme Court, including Judge Jackson, believe it their duty to interpret the law according to this “supreme law.” However, these interpretations are problematic since they are morally neutral and thus can range from pro-life to pro-abortion. Hiding inside the “penumbra” of the Constitution, there is room for a wide variety of opinions that destroy the proper notion of law.
No one doubts that this candidate will seek to base her decisions on the Constitution. However, her positions on abortion and other moral issues indicate that it will be a skewed reading of the fundamental charter. The Constitution is not a piece of irrational modern art that people can interpret to mean whatever they determine.
Instead, it is a collection of fundamental legal principles meant to undergird a specific vision of society oriented to the common good and the practice of virtue in common. Fidelity to this original intention should be a principal basis for interpreting law, not socialist economics, woke politics or feminist denial of morals. Judges who stray from the path of tradition betray the trust of generations who expect a consistent reading of this founding document. Such justices may defend higher law, but not the highest.
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However, a document alone also cannot be the source of law because all things human are fallible. The writers of constitutions on their own cannot produce anything beyond a collection of qualified opinions. In an egalitarian age, one person’s opinion is as good as anyone else’s. Thus, opinions alone have no force to bind people unless anchored in something that transcends personal beliefs.
Defending the Highest Law
What makes all law binding and unchanging is a sacred trust that binds it to the highest law. The tradition of the Christian West has always held that the source of all law—whether customary, common or constitutional—is God and His eternal law.
“Eternal law,” “moral law,” or “natural law” are all terms used to describe an objective moral compass that makes social order possible. It is the same for all peoples, places, and times and is often summed up by the Ten Commandments. Scripture says it is written on the heart of all people giving them the capacity to distinguish between right and wrong.
Thus, the highest judge must serve this highest law. This service does not contradict their solemn duty to interpret the Constitution since the latter is only law to the extent that it reflects natural law. Indeed, at the nation’s founding, the American legal profession was steeped in a long natural law tradition found in English common law. This tradition informed the thinking behind much, but not all, of the Constitution.
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The Decline of Natural Law Justice
The role of judges is to help apply these unchanging norms to circumstances and not turn circumstances into “settled” law.
Judges should make sure all law is linked to objective moral law. Vigilant justices should use the maxim, “unjust law is not law” (lex injusta non est lex), as the criteria for rooting out aberrations that might enter the legal system.
Unfortunately, nineteenth-century liberalism gradually destroyed the natural law tradition that served as criteria for “just law.” The legal establishment adopted a positive law standard that relied on human judgment alone to make law outside any established moral framework.
Surviving just law still reflected remnants of morality in society. Today, not even these remnants remain. What survives of natural law on the Supreme Court is found in the “originalist” or “textualist” readings of the Constitution that reflect opinions based on the Founders’ understanding of law. However, such interpretations, sympathetic to natural law, are no guarantee that their rulings will defend the highest law. The avowed “textualist” Justice Neil Gorsuch (joined by Justice John Roberts) managed to find “transgender rights” using this method in the horrific Bostock v. Clayton County (2020) decision in blatant contradiction to natural law.
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The Importance of the Abortion Issue
That is why the abortion issue is so important in the Supreme Court selection process. It inadvertently introduces natural law criteria into the debate. What is typically a hearing about legal knowledge, issues and skills becomes a moral discussion, which liberals strive to avoid at all costs.
Abortion cancels out the standard selection criteria by putting moral law at the forefront. It is a burning issue with enough impact to reestablish a tiny link to natural law and make it a primary consideration. It is the bare minimum, but at least it is something.
The hideousness of procured abortion demonstrates that it is gravely contrary to natural law since it violates the Fifth Commandment: “Thou shalt not kill.” People find it easier to see that a pro-abortion judge, who affirms this aberration as a fundamental right, subscribes to a concept of law that will prove toxic to the legal system.
Thus, the selection of Supreme Court justices gains enormously by considering the abortion issue. Unfortunately, most nominations do not live up to the bare minimum challenge of opposing abortion, which the office of justice requires.
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Nothing personal, but the Senate should not confirm Judge Jackson as an associate justice of the Supreme Court of the United States until she proves that she serves the highest law.