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How Will the Court Survive?
JUSTICE SOTOMAYOR: Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
MR. STEWART: I —
JUSTICE SOTOMAYOR: I — I — I don’t see how it is possible. It’s what Casey talked about when it talked about watershed decisions. Some of them, Brown versus Board of Education it mentioned, and this one have such an entrenched set of expectations in our society that this is what the Court decided, this is what we will follow, that the — that we won’t be able to survive if people believe that everything, including New York versus Sullivan — I could name any other set of rights, including the Second Amendment, by the way. There are many political people who believe the Court erred in seeing this as a personal right as — as opposed to a militia right. If people actually believe that it’s all political, how will we survive? How will the Court survive?
-Excerpt from Oral Argument in Dobbs v. Jackson Women’s Health, December 1, 2021
I’ve just started reading through the transcript of this morning’s oral argument in Dobbs v. Jackson Women’s Health, so I cannot comment on the entire discussion. However, these questions posed by Justin Sotomayor struck me as especially callous. Justice Sotomayor emphasized the word “survive” in reference to her own authority, but it just made me think of the survival of unborn babies at issue in this case. Recognizing the political implications of this case, I understand the reason she is asking such questions. I’m thinking that she might have used a less loaded word, but perhaps the repeated reliance on “survive” is a bit of a Freudian slip?
Published in General
IIRC in an interview with Justice Thomas that was posted on Ricochet, he said that oral arguments usually have little bearing on the justices’ decisions. If they have seen the written briefs, then their minds are probably already made up. It’s just going to be a matter of who writes the decision now.
I guess her intent is to scare conservatives into voting to retain abortion so that leftists won’t take away gun rights. Only problem is that they will take them if they can, regardless. And everyone in the room listening to her knows that. Leftist theater, just because she enjoys it, and because she will be congratulated by her peers for her performance. Good work if you can get it.
She is right of one thing. It is all political. Constitution is meaningless to these people. They will strike down anything that stands in their way in their vision of the greater good
The court didn’t survive roe v wade in the first place.
True.
I could also make a Futurama joke, but it would be in very bad taste.
That episode may be my favorite.
Roberts will cave. It’s what he does best. There is a strain of conservative that believes the appearance of things is more important than their substance. Or, rather, the appearance of subscribing to the myth of something – such as the ‘independence’ of the Court – is more important than the reality – upholding the constitution. Even when he knows in his heart of hearts that those to the (nominal) left of him don’t give a fig for anything but political results.
I wasn’t referring to a specific episode.
I assume Roberts is on her side, so she was just talking to Kavanaugh. The SCOTUS questions are usually intended for another Justice.
The goal is clearly to try and work the refs. In this case that means the Chief, Kavanaugh, and Barrett. They are the institutionalists on the Court and most likely to go for a narrow ruling–uphold MS law and not overrule Roe.
I hate that type of “questioning” and I don’t know that it will work. I certainly hope it doesn’t. We now get to wait until June to find out.
I can’t stand that woman . . .
So, bigoted against “wise latinas,” are ya?
That may be.
If the court’s credibility is really such a concern for her, if she thinks this decision is not going to go her way, and if she thinks the court won’t survive if the people think the ruling is purely political, she should encourage her pro-Roe colleagues to flip and make it a unanimous decision to overturn Roe/Casey. But I doubt she’s that worried about the survival of the court.
She senses that her side might lose.
Time to pump up the narrative!
You mean the greater utopian epoch.
But you were referring to the Poplars episode, I suppose.
To be clear though, it was a Futurama joke in reference to Guru’s avatar, the character Morbo The Annihilator, from Futurama.
Morbo refers to humans as “puny earthlings” or “puny humans.”
So I was going to go with “Not only did the court not survive, but neither did millions of puny humans.” i.e., the unborn.
Robert’s is a creased trousers kind of “conservative.”
According to NR the pro- abortion side didn’t leave any wiggle room for a negotiated middle ground- it’s all or nothing. If true, I could see Roberts joining the conservatives for 2 reasons:
1- so he can make the decision more legitimate (in his mind) by making it a larger majority.
2- so he gets to choose who writes the opinion (likely himself so he can water it down).
I expect the vote to go 5-4 one way or the other. I have hope we come out with a win.
If it comes out as a 5-4 “win” then I would expect court-packing to begin soon.
Should’a asked Roberts back in 2015 on Obamacare. And Kennedy back in 2015 on marriage. And Kennedy before that on Roe. And herself in every decision where everyone knew she’d take the lefty position without regard to the meaning of the written Constitution. And on and on.
If only.
JUSTICE SOTOMAYOR: Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
It is amazing to me that these words could come out of her mouth without her recognizing that this is EXACTLY what Roe v Wade did. How wise, how judicious can she really be to utter these words with no insight that the other side feels this exact sentiment about the decision she is desperate to protect.
@Guruforhire made this point above, essentially, but it is worth reiterating. Roe v Wade was political, not judicial. The Court’s invention of the “right” to unfettered abortion out of thin air was a political act. It certainly was not judicial. The stench of this has been with us for almost 50 years and has fouled the court appointment process and our politics generally.
She chose an interesting example, when what she is trying to defend is the precedent of a dubious Supreme Court decision.
The cases referred to as Brown v. Board of Education overturned, in 1953, the infamous “separate but equal” decision of Plessy v. Ferguson which the Supreme Court had issued 57 years earlier. To the extent that Ms. Sotomayor is making a plea to preserve precedent, it’s ironic that she chose a case that reversed precedent — precedent even more long-established than that of Roe v. Wade.
I hope her opponents take the opportunity to point out that, on occasion, very bad Supreme Court decisions, even those as old as Roe v. Wade, are worth overturning, as her example illustrates.
I think that with the Republican Senate that we have, a court packing is not in the cards.
She is a WIDE LATINA.
If you meant that ironically and it did survive that horrendous decision, exactly my thought.
That’s probably. However, he also doesn’t like narrow decisions. He may go with the conservatives to make this a decisive 6-3 vote. But we’ll have to see. He really is a failure as a conservative appointee.