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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