We live in an era when notions of social justice dominate American life. For decades, from college enrollment to wokeism, America’s focus has moved from opportunity and merit to overriding concerns of fairness and rectification of the past. The Supreme Court nominees of the left are a prime example of that shift, and Judge Ketanji Brown Jackson could be their most prominent champion.
There was a time when the ideal of justice was that it was blind. Lady Justice, in statuesque form, was adorned with a blindfold symbolizing impartiality. Consistent with that, America was to be a country bound by the rule of law, that is, that all are accountable to the same laws, not the dictates of particular men or women.
Our Supreme Court, historically derived from the institution of the council of elders at the dawn of civilizations, was to wisely be the champion of those ideals in the U.S. constitutional system. After breaking with a monarch and fighting a Revolution, our Founders empowered an independent judicial system to be unaffected by trends of society or the whims of leaders in favor of the stability of the rule of law.
“We are told that the provision of the statute authorizing the adoption of codes must be viewed in the light of the grave national crisis with which Congress was confronted. ... Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority.”
In other words, the rule of law prevailed.
FDR, however, was not interested in such “legalisms.” Incredibly, Roosevelt asserted that Americans “cannot seriously be alarmed when they cry ‘unconstitutional’ at every effort to better the condition of our people.” On the contrary, he asserted that “we will no longer be permitted to sacrifice each generation in turn while the law catches up with life.”
The law for which FDR had no patience and to which he was referring was the U.S. Constitution.
Roosevelt had no interest in waiting for the Constitution to catch up. To get his way, Roosevelt threatened to pack the Supreme Court with justices who would give him his way. Thereafter, between a retirement and switched votes, FDR got his way. The second set of New Deal legislation magically, or more properly cynically, became constitutional.
Since then, Democrats have relied on the Supreme Court to get their way—almost always in the name of fairness and social justice. All of the recent liberal Supreme Court justices have fitted into that mold. So much so that I refer to them as Social Justices.
Of course, “consistent with international human rights principles” appears nowhere in the Constitution. That’s a European social justice notion, not the American principle of the rule of law.
As for Justice Sonia Sotomayor, in a Fourth Amendment case, she prefaced a social justice rant by writing, “Writing only for myself, and drawing on my professional experiences ...” Does that sound like the rule of law? As an attorney of 35 years, I can definitively say that it’s outright wrong for a judge to use his or her personal experiences to decide cases. The facts and the law should decide cases, not personal experience.
For her part, Justice Elena Kagan has freely spoken of what she believes to be flaws in the Constitution and believes that the purpose of the Supreme Court is to help the “despised and disadvantaged,” that is, to pursue social justice.
That brings us to the retiring Justice Stephen Breyer. He laid bare his view on activist courts in his book “Active Liberty: Interpreting Our Democratic Constitution.” In that book, Breyer encourages courts to consider the effects of their rulings on society. In other words, Breyer was not bound by blind justice or constitutionality. He cared about the outcomes of his rulings—social justice.
So who will replace Justice Breyer? Well, President Joe Biden shattered the notion of blind justice by promising to pick a black woman for the court.
For her part, his nominee stated the following at her confirmation hearing:
SEN. MARSHA BLACKBURN: “Can you provide a definition of the word ‘woman’?”
JACKSON: “No, I can’t”
BLACKBURN: “You can’t?”
JACKSON: “I’m not a biologist.”
No one can doubt that that response is a nod to the left’s social justice agenda.
Obviously, her position fits in well with the left’s social justice view on crime and incarceration.
Overall, we are told of the great qualifications of Jackson. The operative question, however, is, qualifications to do what?
Would it be to pursue social justice, or blind justice and the rule of law?
Like many of the questions she refused to answer at her confirmation hearing, she likely would refuse to answer. Americans, however, in the age of social justice, cannot be confused as to her motivation and presence on the Supreme Court of Social Justices. They are there to change the Constitution and American society, not to follow the Constitution.
