Yes, Justice Sotomayor, the Court Will ‘Survive’
The abortion case is about life and liberty, not her and her colleagues.
By Crispin Sartwell
Dec. 3, 2021 6:31 pm ET
Justice Sonia Sotomayor speaks during a panel discussion celebrating Sandra Day O'Connor in Washington, Sept. 25.PHOTO: JACQUELYN MARTIN/ASSOCIATED PRESS
According to Justice Sonia Sotomayor, it is not only, perhaps not even primarily, the right of a woman to control her own body, or the right of a developing human being to life, that is in question in the outcome of the Supreme Court’s decision on a Mississippi law that bans most abortions after 15 weeks. At stake is the reputation—no, the very survival—of the Supreme Court.
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Justice Sotomayor noted that state legislators who sponsored another restrictive abortion law mentioned that the time was ripe for a challenge to Roe v. Wade and Planned Parenthood v. Caseybecause “we have new justices”—five Republican appointees who’ve joined Justice Clarence Thomas since the court decided Casey in 1992. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked. “I don’t see how it is possible. . . . How will we survive? How will the court survive?”
It is common for commentators and the justices themselves to deny and to decry the politicization of the court. Many observers assumed that Justice Sotomayor aimed at swaying Chief Justice John Roberts, who is often pictured as concerned above all about the high court’s reputation. This is in turn understood not as a matter of mere public relations or marketing, but fundamental to the legitimacy of the American legal system.
Though Justice Sotomayor’s arguments are conventional, they are unsound. It would take an armed uprising or a constitutional amendment to end the Supreme Court. Its survival is under no such threat and is not remotely endangered by state legislators evaluating the chances that a law they pass will be upheld. Such hyperbolic claptrap ill becomes a Supreme Court justice.
If Justice Sotomayor and Chief Justice Roberts are concerned with the court’s reputation, they could do no better than cease to regard it as directly relevant in deciding any case. If there were a Super-Supreme Court, it would be obliged to rule that any consideration of how deciding this case bears on the Supreme Court’s reputation is entirely immaterial to the legal question before it.
The rights of millions of people are at stake: women of reproductive age, according to advocates of abortion rights; developing human beings, according to opponents. The court’s abortion jurisprudence has real effects on real people, potentially for a long time to come. The state of the Supreme Court’s brand is neither here nor there.
At any rate, if they want to improve the court’s image, the justices should refrain from discussing it in the middle of an argument about the law.
Exc.
Mr. Sartwell teaches philosophy at Dickinson College in Carlisle, Pa. |
