Justice Sotomayor caused a stir in this morning’s Supreme Court arguments over the Mississippi abortion law, pointing to the “new justices” sitting beside her at the bench and remarking on the “stench” that would ensue if the court overturned the “watershed” Roe v. Wade decision. Though her sentiments are apparently heartfelt, it occurs to us that Justice Sotomayor’s remarks reflect too much concern with the optics of the current political climate and not enough with following the Constitution.
The comments emerged during a colloquy with Mississippi’s solicitor general, Scott Stewart. Justice Sotomayor began with a mention of Magnolia State legislators behind the abortion law. “The Senate sponsor said we’re doing it because we have new justices on the Supreme Court,” she said, then asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
The justice reminds us of Captain Renault in “Casablanca” who is “shocked, shocked” to discover that Rick’s Café Américain is a den of gambling. Yet Justice Sotomayor seemed to wonder whether the court could survive. “I don’t see how it is possible,” she said. She raised the idea of “watershed decisions” — like, say Brown v. Board of Education — that set up “an entrenched set of expectations in our society.” She concluded by asking “If people actually believe that it’s all political, how will we survive? How will the Court survive?”
“I think the concern about appearing political makes it absolutely imperative that the Court reach a decision well grounded in the Constitution, in text, structure, history, and tradition,” Mr. Stewart gamely replied. Yet Justice Sotomayor was not persuaded by his admonition to follow a literal reading of the preeminent parchment. “Counsel, there’s so much that’s not in the Constitution, including the fact that we have the last word,” she replied.
In Justice Sotomayor’s view, the Supreme Court is the final authority in Constitutional interpretation: “There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.” This conflicts with what the Editor of the Sun is always hectoring his staff to comprehend — that newspapers are the constitutionally unregulatable court of last resort.
Justice Sotomayor, in contrast, seems to be following the reasoning of commentators like the New York Times writer who tried to palm off on the newspaper’s noble readers the idea that big moves by the court’s “conservative majority” would — apparently in sharp contradistinction to Roe — lead to “significant political ramifications, in both the short and the long term.” Last year, the Times scribe continued, “when Chief Justice Roberts held sway, the court’s approval rating was on the rise, at 58 percent, close to its highest rating over the past two decades.”
Yet since Justice Barrett’s arrival, the Times reports “public approval has dropped to 40 percent — a record low since Gallup has kept track.” In which article of the national parchment Justice Sotomayor finds such opinion polls she failed to cite. Let her look, we say, less to Gallup than to Madison. We urge the justices to be unafraid to re-examine precedents, be they watershed or otherwise. And to heed Mr. Stewart’s advice to return abortion law to the states. Quoth he: “When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”
Image: Detail of a photograph of Justice Sotomayor, Supreme Court of the United States, via Wikipedia.