The Supreme Court held a fascinating discussion on rights in the Constitution and when to overturn its own precedents on Wednesday in the oral argument on Mississippi’s ban on abortion after 15 weeks ( Dobbs v. Jackson Women’s Health Organization). The media consensus is that a majority is prepared to alter its standard of review for abortion regulation by the states, though you never know for sure based on questions in oral arguments.
One judgment we can safely make is that Justice Sonia Sotomayor is mad as hell about it, and she was willing to violate the Court’s normal standards of decorum to make her point. From the start she ripped into the lawyer for Mississippi, but more notable were her words that were intended as a message to her fellow Justices if they overturn Roe v. Wade and Planned Parenthood v. Casey .
“The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we’re doing it because we have new Justices on the Supreme Court,” the Justice said, getting personal about the newest members of the Court, Brett Kavanaugh and Amy Coney Barrett. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? . . . I don’t see how it is possible.”
Survive the stench? Just political acts?
It’s no surprise that Justice Sotomayor feels strongly about abortion rights. But with those words she wasn’t addressing the legal questions at issue. She was asserting that if the Court revisits its abortion precedents its motivation would be political. She is throwing the legitimacy of her own institution into question.
This is nasty stuff, and she must know it will have the effect of fanning hostility to the Court in the broader public. Perhaps that was part of her point. Justices who passionately disagree with opinions often read their dissents from the bench, but they don’t call into question the motivations of their colleagues.
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