Judge Ketanji Brown Jackson will receive enough votes in the Senate today to join the Supreme Court as the first African-American woman Justice. Jackson is qualified by any traditional measure—experience, intelligence, character—for the Supreme Court. But Republicans could still oppose her on the central question of legal philosophy, which Democrats have made the primary grounds for Senate confirmation votes to the High Court.
Even as they oppose Jackson, Republicans have shown a restraint not afforded to Justices Brett Kavanaugh or Amy Coney Barrett. Republican senators may vote against Judge Jackson because she consistently sentenced child pornography offenders to shorter prison times than normal. 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—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.
Judge Jackson's response is even more troubling because it amounts to a rejection of the Declaration of Independence. In another written question, Senator Cruz asked: "Please explain, in your own words, the theory prevalent among members of the Founding Fathers' generation that humans possess natural rights that are inherent or inalienable." Judge Jackson replied: "The theory that humans possess inherent or inalienable rights is reflected in the Declaration of Independence, which states: 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.'"
In her answer, Judge Jackson accurately identifies the Declaration of Independence as one of the leading explications of natural rights in American history. But if she has no position on natural rights, as she wrote in response to Senator Cruz, then she has no position on the Declaration of Independence. Her answers did not come under the pressured circumstances of live hearings, but instead came as written answers to written questions after the end of her Judiciary Committee hearings. We should view them not as a mistake, but as her carefully considered views on the matter. Again, she puts herself in opposition to the Great Emancipator, who once said "I never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence." In an 1859 letter, Lincoln memorably wrote on the occasion of Thomas Jefferson's birthday:
All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.
It is hard to accept that a Justice of the U.S. Supreme Court takes no position on such thoughts as Lincoln's and on the essential truth of the Declaration of Independence, "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Jurists should and do disagree over the legal significance of these words. Judge Robert Bork and Justice Antonin Scalia famously believed that in our system of separation of powers, federal judges should not read unenumerated rights into the Constitution, but only enforce its provisions as written. Justice Clarence Thomas, who may have been the first Justice to cite the Declaration of Independence as legal authority (in a case holding that race-based affirmative action violates the Constitution), believes otherwise. They disagree as to whether judges have the authority to import natural rights into the vague provisions and empty spaces of the Constitution, such as the 14th Amendment's guarantee of Privileges and Immunities, Due Process, and Equal Protection. A conservative of the Bork-Scalia variety, for example, might believe that the Constitution does not provide a right to abortion, but that states are still free to decide whether to allow the termination of a fetus at any time. A conservative of the Thomas variety, on the other hand, might think that natural law requires judges to protect the rights of the fetus as a human being from abortion, either at the state or federal level. Conservatives of good will disagree over the role of federal judges in incorporating or avoiding natural rights in our law.
But that is not what Senator Cruz asked Judge Jackson. He did not ask her whether she agreed with Scalia and Bork or with Thomas. Instead, he asked whether she believed natural rights exist at all. Even Bork and Scalia would have agreed that "all mean are created equal" and "are endowed by their Creator with certain unalienable Rights." They only disagreed with other conservatives over which institution—Congress, the executive or the states—had the constitutional authority to enforce them. Judge Jackson could not even agree that such rights exist.
That is a far more difficult proposition to hold than one that excludes judges from their enforcement. It raises the question of whether, 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. A senator might wonder whether Judge Jackson shares the philosophy of Justice Oliver Wendell Holmes, who held that judges should act without regard to morality or natural rights. "If my fellow citizens want to go to Hell I will help them," Holmes wrote. "It's my job."
If Judge Jackson believes it's her job, too, Republican senators could respectfully dissent. Such opposition would be based not on Jackson's record on sentencing or her tangential connections, if any, to critical race theory—or her personal background, history or character. It would reflect disagreement with her views on the Constitution and natural rights. And by insisting that natural rights matter, Senate Republicans might begin to repair the confirmation process itself.
John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley.
The views expressed in this article are the writer's own.
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