Below is a version of my column in The Hill on the statement of Justice Sonya Sotomayor on the “stench” of politics in the oral argument in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi abortion law. The statement seemed directed at Sotomayor’s three new colleagues and the effort to use the new court composition to seek the reduction or overturning of Roe v. Wade.
Here is the column:
In Wednesday’s Supreme Court oral argument in Dobbs v. Jackson Women’s Health Organization, Justice Sonya Sotomayor got a whiff of something she did not like. She said many abortion opponents, including the sponsors of the Mississippi abortion law at issue, hoped her three new colleagues would allow for the reversal or reduction of Roe v. Wade. With Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett listening, she asked, “Will this institution survive the stench” created from such political machinations — and then answered: “I don’t see how it is possible.”
Of course, when justices begin to declare their disgust at the very thought of overturning precedent, there is another detectable scent in the courtroom. Indeed, it felt like a scene from Tennessee Williams’ play, “Cat on a Hot Tin Roof.” The only thing missing was the play’s central character, “Big Daddy” Pollitt, asking: “What’s that smell in this room? … Didn’t you notice a powerful and obnoxious odor of mendacity in this room? There ain’t nothin’ more powerful than the odor of mendacity.”
Justices Sotomayor and Stephen Breyer insisted that overturning Roe in whole or in part would bring ruin upon the court by abandoning the principle of stare decisis, or the respect for precedent. Yet neither showed the same unflagging adherence to precedent when they sought to overturn conservative doctrines. Notably, Sotomayor pointed out another allegedly “political” decision in the court’s recognition of an individual right to bear arms; she and Breyer both indicated a willingness to overturn the ruling in that case, District of Columbia v. Heller. After that decision, both continued to dissent and arguing that “the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.” Indeed, they may reaffirm that position this term.
Sotomayor’s nose for judicial politics was also less sensitive when she recently called upon students to campaign against abortion laws — a major departure from the court’s apolitical traditions. After telling the students that “You know, I can’t change Texas’ law but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.” She added: “I am pointing out to that when I shouldn’t because they tell me I shouldn’t.” That was more than a whiff of politics, but the same legal commentators applauding her “stench” comment were entirely silent in condemning her direct call for political action on abortion. There also were no objections to the stench of politics when the late Justice Ruth Bader Ginsburg publicly opposed a presidential candidate.
They are not the only figures showing such selective outrage. During the confirmation hearing for Justice Kavanaugh, Sen. Sheldon Whitehouse (D-R.I.) demanded that Kavanaugh promise to respect stare decisis on cases like Roe, but then called for overturning cases like Citizens United v. Federal Election Commission. Democratic groups often decry the conservative majority as “partisan” while demanding the packing of the court to guarantee an immediate liberal majority.
On Wednesday, Kavanaugh and other justices balked at claims that Roe is somehow untouchable due to the passage of 50 years. The 1896 ruling of Plessy v. Ferguson was overturned in Brown v. Board of Education of Topeka, roughly 58 years after it was written; the court ruled that its Plessy decision was egregiously wrong — one in a long list of reversals celebrated today. This includes Lawrence v. Texas, which overturned prior precedent allowing the criminalization of homosexual relations.
There is a major difference, though, between the oral arguments in Brown and those in Dobbs. In Brown, the court had extensive discussion of the constitutional foundation for the “separate but equal” doctrine; in the oral argument on Dobbs, there was comparably little substantive defense of the analysis in Roe or its successor case, Planned Parenthood v. Casey. Indeed, the thrust of much of the pro-choice argument was that, even if Roe was incorrectly decided, it takes more than being wrong to overturn such an “established” precedent.
When it was released, Roe was widely ridiculed as being extraconstitutional and excessive. That includes some who are now calling to pack of the Court criticized Roe. For example, Harvard Professor Laurence Tribe objected that “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Even Justice Ginsburg once criticized it, declaring: “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
In the Dobbs hearing, Roe was the opinion that many wanted to preserve but few seemed willing to defend. Part of the problem is that Roe died long ago. In Casey, the Supreme Court gutted Roe and adopted a new standard barring state actions that impose “an undue burden” on abortions. So it is hard to tell what precedent is being defended as “established” beyond a de facto right to abortion. Moreover, Casey was a mere plurality, and the court has often split 5-4 on later abortion cases.
While defending abortion as a “liberty interest,” efforts to explore the actual basis for Roe were largely brushed aside. Even when justices tried to push pro-choice advocates to defend the key “viability” standard, counsel defended it as a “principled” or “workable” line but did not actually say how it was constitutionally compelled. That seems odd, since this case is about whether Mississippi can impose a 15-week limit. (The United States is one of only seven among the world’s 198 countries that allow abortions after 20 weeks.)
It appeared particularly frustrating to Chief Justice John Roberts, who finally stated: “Viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?” He never received an answer, and the pro-choice counsel effectively declined to offer a meaningful alternative test when it was repeatedly requested by the justices.
Likewise, rather than defending the analysis underlying Roe, most legal commentators prefer to attack justices as ideologues for questioning such “established precedent.” Even Sotomayor portrayed the arguments against abortion as little more than a “religious view,” a statement that is wildly off-base and ignores the many secular critics of Roe as a legal case or of abortion as a medical practice. Others picked up on that theme, and one law professor demanded that Barrett recuse herself because of her own religious beliefs. It was a continuation of the disgraceful attacks on Barrett’s faith during her confirmation hearing by senators like Dianne Feinstein (D-Calif.).
That is the problem with both politics and mendacity: They are a stench that one tends to smell only in others — and tends to be more pungent when one is in dissent.
There is no problem with changing one’s rationale for reproductive rights, or even changing one’s views on constitutional interpretations; that is part of honest intellectual development. However, the mere fact that a case is constitutional precedent — or even “super precedent,” according to some — is no substitute for constitutional principle.
Breyer and Sotomayor are known for often profound, detailed opinions. I expect both will ably defend reproductive rights in Dobbs, even if they do not defend the actual analysis in Roe. But Roe should stand or fall on constitutional merits — not on feigned outrage over changing constitutional precedent.