The James Wilson Foundation on Natural Rights and the American Founding

“Breaking the Sotomayor Mold” — Kody W. Cooper

Kody Cooper argues that a new justice in the mold of Sotomayor would fail to pass the “test of truth” when it comes to abortion, religious liberty, and takings.

Some excerpts:

“In the wake of Justice Breyer’s retirement announcement, Democrats are divided over whether President Biden should appoint a more conciliatory ‘bridge-builder’ who will look for opportunities to build alliances with the conservative justices or a more aggressive ‘truth-teller,’ who will write the fiery dissents that could be the blueprint for a future progressive majority.

The advocates of ‘truth-telling’ have lionized Justice Sonia Sotomayor, former president Barack Obama’s first Supreme Court nomination, as their champion on the Court, who they see as a patriotic witness for true moral and legal propositions and the mold for Biden’s next pick.

“These advocates thus invite us to apply the test of truth to Justice Sotomayor’s jurisprudence, what we can call the Sotomayor mold.  And which test of truth is more fitting than those self-evident truths our nation was built upon, the natural rights to life, liberty, and property?”

“The natural right to life entails, minimally, a fundamental duty of persons not to intentionally take innocent life.  Yet, dissenting in the recent Whole Women’s Health v. Jackson decision, Justice Sotomayor opposed a Texas law that seeks to protect innocent, pre-born life.  Justice Sotomayor contended that Texas has ‘substantially suspended a constitutional guarantee: a pregnant woman’s right to control her body.’ There are various possible reasons judges in the Sotomayor mold could have for thinking this is a constitutional right.  None of them hold water.

“[T]he strict separationist jurisprudence of the Sotomayor mold is incoherent on either a broad or a narrow definition of ‘religion.’ If narrowly defined as something akin to traditional institutional theism, then free exercise jurisprudence would be under-inclusive of religious minorities.  But if broadly defined to be maximally inclusive (including polytheistic and non-theistic religions) to be something akin to sincerely held ultimate concerns, then any policy advancing a vision of justice could be construed as illicitly advancing religion on the strict separationists’ beloved Lemon Test.”

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790