by First Liberty Institute • 5 min read
EDITOR’S NOTE:
This article was published prior to President Biden announcing Judge Ketanji Brown Jackson as his nominee to the U.S. Supreme Court.
The following statement in response to the forthcoming nomination may be attributed to Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty Institute:
In nominating Ketanji Brown Jackson, President Biden is selecting a judicial activist for the Supreme Court. Her record from the beginning of her career shows hostility to religious liberty, free speech, and other constitutional rights. The American people do not want a liberal extremist on the Supreme Court. If confirmed, Judge Jackson’s judicial activism will place the constitutional rights of all Americans in jeopardy.
Learn more about Judge Jackson’s nomination in a recent op-ed from Kelly Shackelford, published on Fox News: Supreme Court nominee Ketanji Brown Jackson is a threat to Constitutional rights
This article was updated on Friday, February 25, 2022 at 2:08 PM CST.
Americans will soon know President Biden’s nominee to replace Justice Stephen Breyer on the U.S. Supreme Court. Recall the President stated he would announce his pick by the end of February.
Several names have been circulated in recent weeks, but three are rumored to be the top contenders:
At this point, it’s still speculative to say if any of these could be the nominee. Though we don’t know exactly who will be picked to fill Justice Breyer’s seat, history is a guide. A review of President Biden’s record on judicial nominations and federal judges gives us an indication of the type of justice Americans could get.
People of faith worried about the state of religious freedom must know this: President Biden’s record on judges is alarming. The nominees he’s put forward so far have not inspired confidence.
If that trend continues, Americans could soon be looking at a radical, extremist nominee for the Supreme Court.
Did You Know? Justice Breyer Frequently Voted in Favor of Religious Freedom
In recent years, when there’s been a vacancy on the Supreme Court, Left-wing political activists have clamored, complained, and painted a caricature of a broken court, deeply divided along partisan lines.
But data shows unanimity is more common than what’s portrayed in the headlines.
A review of the most recent U.S. Supreme Court term shows the justices decided 43% of its cases unanimously—consistent with the average of 47% over the past decade.
Additionally, religious freedom in particular is an area where liberal and conservative justices often find consensus and agreement.
With the nomination battle looming, people of faith should be aware—and make their family, colleagues and neighbors aware—of an important fact: Justice Breyer was among the liberal judges who frequently sided in favor of religious liberty. Deseret News reported:
“Although the Republican-appointed members of the court are frequently portrayed as pro-religious liberty in the media, Breyer also frequently voted in favor of religious liberty during his tenure. In 9 of 13 religious liberty cases since 2006, Breyer joined the majority to rule in favor of religious rights. One study has categorized him in the top half of the most pro-religion justices to serve on the court since 1953.”
Fulton v. Philadelphia (2021) is a recent example. In that case, the Supreme Court ruled unanimously that the state cannot discriminate against faith-based social services providers because doing so violates the First Amendment.
Indeed, the universe of issues upon which Justices Stephen Breyer, Clarence Thomas and Sonia Sotomayor agree is probably quite small. Yet religious liberty occupies a distinct portion of that universe. When it comes to the premise that government may not discriminate against an organization because of its religious beliefs, the nine Supreme Court justices were all in.
The American Legion v. American Humanist Association (2019) is another example. In this 7-2 decision, First Liberty secured a landmark victory that saved the Bladensburg Peace Cross from destruction. It also set a new precedent protecting similar religious displays nationwide. The two dissenting votes came from liberal Justices Ruth Bader Ginsburg and Sotomayor. However, Justice Breyer joined the majority in that case.
To be clear, this is not to suggest Justice Breyer is a conservative or an originalist who unwaveringly interprets the law and the Constitution according to its plain, original text. He’s a liberal justice. But it does suggest that he was someone who could—at least to some extent—join many of the Court’s opinions protecting religious liberty. And that is what is most likely about to change.
It’s expected President Biden will pick another liberal to replace Justice Breyer, but the nominee could be someone much further to the Left.
First Liberty reviewed the record and background of several Biden nominees to important vacancies on appellate courts, just one level below the Supreme Court. We uncovered that while in private practice, many of these judicial picks—who are now sitting on the federal bench for life—have expressly worked against Americans’ First Freedom.
What’s more, President Biden has selected nominees whose resumés show they’ve worked for radical, Left-wing activist organizations, including the American Civil Liberties Union and the discredited Southern Poverty Law Center, the latter being infamous for labeling political opponents as “hate groups” or “extremists.”
If this pattern continues, the President’s nominee for the Supreme Court could be someone far outside the mainstream—an extremist not likely to be an ally of religious liberty.
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