I predict that there will soon be a great wailing, and gnashing of teeth

Say goodbye to all that

Justice Breyer has announced that he will officially retire tomorrow at noon, and we're going to miss him, once Ketanji Brown Jackson starts making law. Breyer consistently voted with his fellow liberals on the court, so one might be tempted to dismiss his replacement by another liberal as an insignificant event, but the person taking his seat claims to have “no opinion” on whether the natural, unalienable rights asserted in our Declaration of Independence exist at all.

Writing in Newsweek back on April 7 after the judge’s testimony was complete, John Yoo, professor of Law, University of California at Berkeley made the following observations:

…. Other senators might find her refusal to define "woman" as a sign that has no common-sense principles based in reality. Still others may doubt her claim that she has no thoughts about critical race theory—which continues its pernicious effects in schools [when can we expect AOC to demand her impeachment? -Ed]—or may not take seriously her stated allegiance to originalism as an interpretive methodology. But these reasons turn on the merits of Judge Jackson's decisions and policy positions, and do not involve her personal background, religion or family life.

On this score, Republicans would do well to focus less on Jackson's sentencing decisions and more on her eyebrow-raising thoughts about the Declaration of Independence and natural rights. Her most remarkable response came not during the hearings themselves, but in the questions for the record after the hearing. In written questions, Senator Ted Cruz (R-Tex.) asked Judge Jackson: "Do you hold a position on whether individuals possess natural rights, yes or no?" She responded: "I do not hold a position on whether individuals possess natural rights."

…. Judge Jackson's response should give senators pause, because if the judge does not believe that our rights as Americans are "natural," originating from our equal status as human beings, from where does she think our rights come? Perhaps Judge Jackson believes that our individual rights depend solely on the positive law—in other words, the rules enacted by the people and their representatives, such as the Constitution's Bill of Rights, its Reconstruction Amendments, the Civil Rights Act of 1964 and the Voting Rights Act of 1965. She does not appear to believe that our rights pre-exist the Constitution or other positive laws.

This would be an incredible view for a would-be Supreme Court Justice to hold, though one in keeping with the way law is taught in our colleges and universities today. It stands opposite the views of Abraham Lincoln, who deplored slavery even in the face of Dred Scott v. Sandford, the Supreme Court decision upholding it. Lincoln insisted that "if slavery is not wrong, nothing is wrong." It takes the same intellectual side as Stephen Douglas, Lincoln's great opponent in the debates of 1858, who believed that Congress and the states decided whether blacks had rights, not God or our status as equal human beings. It follows the same logic as Chief Justice Roger Taney, author of the Dred Scott decision, who believed that blacks had no rights because the Constitution forbade it.

….

if Judge Jackson believes rights are simply up to legislatures or popular enactment, the Constitution places any limits on the power of government beyond those set out in the Bill of Rights and Reconstruction Amendments.

Jackson is exactly the kind of judge we knew Biden would appoint, and shame on those conservatives who helped him slither into a position where he could do just that.