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?

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  1. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    MDHahn (View Comment):
    He also made clear the he is not afraid to overrule bad precedent. Gorsuch isn’t a squish.

    Chevron, anyone?

    • #61
  2. MDHahn Coolidge
    MDHahn
    @MDHahn

    Saint Augustine (View Comment):

    MDHahn (View Comment):
    He also made clear the he is not afraid to overrule bad precedent. Gorsuch isn’t a squish.

    Chevron, anyone?

    Don’t get my hopes up! But after that Oklahoma Indian territory case, I don’t think Gorsuch cares about incremental steps. He’s just looking at the case in front of him. 

    • #62
  3. Manny Coolidge
    Manny
    @Manny

    colleenb (View Comment):

    Manny (View Comment):

    9thDistrictNeighbor (View Comment):

    JoelB (View Comment):

    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.

    He’s the giant of our times on the Court.

    I agree but I think Alito is a sleeper. He, of course, is not the lightening rod that Thomas is but he has been solidly Constitutional and conservative in his decisions and writings.

    Oh I agree with that.  Thomas and Alito have been rock solid for years.  

    • #63
  4. WillowSpring Member
    WillowSpring
    @WillowSpring

    genferei (View Comment):

    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.

    Roberts seems to think (for example in the ObamaCare case) that it is possible to make a political decision to prevent seeming to be political.  It doesn’t work like that.

    • #64
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