Court on a Hot Tin Roof: Airing Out “the Stench” from the Oral Argument Over Abortion

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.

209 thoughts on “Court on a Hot Tin Roof: Airing Out “the Stench” from the Oral Argument Over Abortion”

    1. “It’s the [satellites], stupid!”

      – James Carville
      _____________

      American defense “eyes” and C&C will be excised within minutes of the opening of hostilities.

      American defense will be rendered useless – nonexistent.

      America is going to the moon; guess who’s already there waiting.

      You may want to change your plans.

      You may want to throw yourself on the mercy of the Chinese court; that may be your best option.

  1. Alex Jones cares about frogs turning gay. That’s the last thing we need. It would totally disrupt the food chain of the wetlands.

  2. thank you for a wonderful analysis . I’ve come to look forward to your columns and blog postings just as I look forward to reading Victor Davis Hanson. you both bring sanity to the internet

  3. No surprise that Sotomayor, an utterly mediocre judge who was elevated to SCOTUS for diversity reasons, would continue her ideological preening even while in court. I expect no better from her.

    I am disappointed in Breyer, though.

  4. People throw the word “revolution” around quite a bit but it seems to me that there is a revolution already happening that mirrors the one that gave birth to our nation, with very similar odds. The good guys, the patriots who believe in freedom, are very much outnumbered and yet history tells us that the good guys will prevail. They are a ragtag bunch with all different belief systems and intellectual backgrounds but they are united, whether they know it or not, for a common goal. Turley is one, Bill Maher is another, Joe Rogan, Dave Chappelle, Glenn Greenwald, and, as abhorrent as Turley might find it, people like Alex Jones are also on that list. As painful as this whole rebirth process is, it is necessary, and we’re seeing people really pick up the torch of their own destiny and the destiny of our nation and the world. Whatever SCOTUS decides, I hope they will decide based on the Constitution and not on public pressure because history is watching and so are we.

    1. Deborah,

      Alex Jones? You mean the guy who just lost a defamation suit to the parents of the 20 children who were massacred at Sandy Hook for claiming it was a hoax? You would him put on the list with Turley?

      Actually, you are not the only one who thinks highly of Jones. Turley’s own Fox colleague Carlson praises the malignant liar Jones:

      https://www.independent.co.uk/news/world/americas/us-politics/tucker-carlson-alex-jones-fox-b1968674.html

      Do we hear Turley adding his voice condemning Carlson’s embrace of Jones?

      As usual, crickets.

      So perhaps you are incorrect that Turley would be abhorrent to be on the same list with Jones. Who knows for sure now that he works for Fox and won’t say a negative word about his Fox colleagues no matter how despicable their speech or conduct.

      His silence is a disgrace.

      1. Alex Jones comes out with some outrageous claims at times, that is certainly true. But he is also on the money at times with the rest of the media are focused elsewhere, even apparently willfully ignoring important issues. Life is complex, people are complex — if someone shoots his mouth off and errs, that in no way proves that everything he ever said is false, let alone everything he will say in the future. He has said enough that turned out to be true that I would not unconditionally write him off.
        I agree that reporters should vet their stories carefully, but Jones has been improving over time, generally presenting his information sources in detail so the viewer/listener/reader can make a personal judgment regarding his viewpoint.

        It helps to suspend judgment, not immediately jumping to conclusions, but patiently remaining open to new information.

  5. If a specific right is not mentioned in the Constitution, that does not mean that we still do not have it.

    1. And yet, Justices Sotomayor and Breyer dissented in McDonakld v. Chicago.

      Both McDonald and District of Colubmia v. Heller should have been unanimous. The only rationale for a dissent is hostility against private gun ownership.

  6. Can you imagine the damage done if Merritt Garland had ascended to the Supreme Court? Jeez, we dodged a bullet on that one; even though I don’t particularly like the way it was done, it was very lucky that it happened. The casual partisan way and directed attack dog stance he has taken with no independence of his own office shows what a monster he would have been given the supreme powers of that court.

    Yes, the hypocrisy is well on display for all the politicians AND justices. They laud and adhere to principles when the outcome goes their personal preference, but they casually ignore those same fundamentals when the outcome would go against their political bias, and go on to laud other considerations that support their view.

    I, like many, disagree with the legal foundations of Roe/Casey but (at the risk of virtual hypocrisy 🙂 but do respect some of its outcome.
    Specifically, as a matter of bodily integrity, I believe people have ownership of their own person and should have a dispositive say in what is done with and to them. And there is much foundation for that in the Constitution, where the legal rights should have flowed from, not a created right out of whole cloth.
    On the other hand, in abortion we are now dealing with another proto-human in the making, which may have legal rights/protections.
    The question is when do those protections kick in, and what are the competing weights given to the mother vs the fetus’ legal protections.
    And I would say that the mother has already given up some of her presumptive rights to legally unconstrained abortion discretion by the mere fact that she had sex without properly protecting from pregnancy. In other words, she has created a legal obligation to what may become a full legally recognized human being.

    The objective standard should be when the fetus can survive as an independent being from the mother, plus some time for wiggle room to be sure in the variety of cases.
    As such, she cannot claim that abortion decisions within the first trimester, or some reasonable time within that period, aren’t enough time to figure out what she is going to do with the pregnancy.
    Any proto-mother who decides beyond that period of time is just being irresponsible and violating the rights of her, personally initiated, proto-baby’s life.

    I have written more about this with more analysis:

    https://www.quora.com/What-do-libertarians-think-about-abortion/answer/Gary-Triestman

      1. I actually did address these points in a reply to a reply on this thread who addressed the same point(s), but those replies and my reply were deleted for some reason; fortunately I have a copy of what I wrote (and also I did go into it in more detail on that link I added at the end of my comment) This is what I replied:

        “Most of what I said is consistent with what you said, just emphasis made on some points than others.
        I was not referring to outliers’ situations, where medical necessity only discovered after the first trimester are discovered.
        Contraception s certainly not 100% effective, but decisions to abort can still be made within the non-viability stage of the fetus’ existence.
        And I would stand by my assertion that a woman’s choice to expose herself to pregnancy does come with legal obligations; in the event of an unwanted pregnancy, three months or less is easily enough time to make such binding decisions. And that latter dynamic applies to forced/unintended pregnancies as well.”

  7. 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.

    The idea that abortion should not be regulated by the state is consistent with the idea that handguns should be banned except for the police and military.

    What is inconsistent is interpreting the Constitution to protect a right to an abortion (when the text does not mention abortion) while, at the same time, interpreting the Constitution to deny that it protects “a private right of armed self-defense” (even though the Second Amendment literally reads, ‘the right to keep and bear arms shall not be infringed).

  8. God bless the framers for their wisdon and humility in providing a means to amend their super precedent constitution. If our constitution isn’t above scrutiny, then nothing under it is above scrutiny.

  9. Sotomayor is a Radical Left Wing Social Justice Activist. I question her qualifications in sitting on the Supreme Court. There is no comparison between Sotomayor and Ginsburg. Ginsburg was so far above Sotomayor in knowledge and qualifications. Sotomayor was out of line with some of her comments on Wed.

  10. Some day the Court will have to the huge population of suicides in America. Opiodes, tobacco, covid.
    Any person who refused covid vaccine should lose their Medicare. Same with anyone with opiode use. Same with smokers.

  11. The Republicans have spent 30 years doing everything they could to put anti-abortion justices on the courts. They did this openly, campaigned on this, violated political norms to do it, and succeeded. To now pretend that the court is not political, that their rulings will be based on just the law and not politics, is absurd.

    1. Justices are vetted by the political, nominated by the political, and confirmed by the political. The majority political party controls the confirmation process. Political in this context relates to the ideological leanings along the political spectrum; Liberal (Democrats) to Conservative (Republicans).

      Of course the entire process leading to confirmation is political. The question is what judicial principles do those politics respect.

      1. There is no such thing as judicial principles. What ever judicial principle you can try to assign a justice to, you can easily find opinions that contradicted that when it served their politics. It is dishonest to pretend otherwise.

        1. There is no such thing as judicial principles.

          Of course there are. There are also political principles. The root of both is the constitution that they swear an oath to. Citizens, and by extension our culture, speak through the political. They may speak for constitutionally-principled governance, or something else altogether. That is their right. The political however have a duty to honor their oath, regardless of their constituents voice. But when the political honors the voice of their constituents and not their oath, they violate the principle of constitutional governance. The judiciary is to defend against these constitutionally dishonorable politicians.

          Judicial principles exist, the question is whether they honor the constitution or not.

  12. Liberals must know they’re going to lose this case because they’ve already got the propaganda machine (aka: Joy Reid) ramped up, and they’re already calling for court packing. They’ll be insisting that ending Roe will end abortion rights, while failing to explain to their hysterical base that those rights will still exist at the state level, voted on by legislators elected by the people. Threats to pack the court are liberals telling us that, despite their phony complaints of “partisanship,” they approve of politicizimg SC rulings and they believe “their” judges will vote “their” way. Meanwhile, Senators and media hacks are busy undermining the third branch of government by delegitimizing its authority and calling on their emotionally unstable base to create “revolution” and chaos if things don’t go their way. Maybe Pelosi should ask Adam Schiff to form another commission to investigate insurrection against the Court.

    1. Rights that have to be voted on and thus can be denied based on votes are not rights. Also the Rs spent 30 years politicizing the court.

      1. “ Rights that have to be voted on and thus can be denied based on votes are not rights. Also the Rs spent 30 years politicizing the court.”

        The most zealot political body in the United States is, the “Anti-Democrat-Party.” No other party has spent as much time as they do boiling everything down, right on down to race. Race this. Race that. RACE. RACE. RACE. / RACE. RACE. RACE. The 2nd biggest thing they have spent the most time brow-beating The entire American public with????? The Environment. GLOBAL WARMING.Or is it GLOBAL COOLING. ENVIRO THIS. ENVIRO THAT.

        I stopped trying to keep up with what “enviro- du- jour” they was calling it this month or the next. You obviously don’t like things that you could vote on. But, that’s easy to see why. Because like the vast majority of the folks that make-up the extreme far left, you know that the things, The causes you say you believe in, if these, “things,” if you will, was put before the American people to vote on nationwide? They would lose. Hands down so fast.

        As fast as the UFO moves. ZOOM!! Or what are they calling them now? another situation of changing the name but in this case, changing the acronym because once again they can’t leave well enough alone. UAP. “UNIDENTIFIED ARIAL PHENOMENA.” but I digress. Yes suffice to say, 90 to 95% of all causes you and your ilk believe in, would lose so fast on a nation-wide vote. As long as those votes was done properly. If that means having a current up-to-date photo ID with your address on it. And, And you can go to the polls and vote.

        Not mass = mega millions and millions of mail-in-ballots. You should see the list of countries that have real secure voting. I’ve read that list and I’ve also seen what people have to do to be able to prove who they are. Just Mexico alone, would tick the far left off, to no end in sight. I could just hear them screaming, Racism! RACIST!! RACISM!!! But, once again, I digress.

        1. That is cute given that the Republicans now reject the idea of democracy. They gerrymander their way to winning regardless of the vote, engage in voter suppression, and if that fails, now are going to simply reject the outcome of elections. When our democracy falls, it will be because Republicans killed it.

          1. Was this damaging to democracy?

            http://ethicsalarms.com/2020/08/01/ethics-quote-of-the-month-andrew-mccarthy-and-the-integrity-test-it-presents/

            Of course, this presents yet another integrity test for Ethics Alarms exiles from the left of the political spectrum. This blog recognized what was going on in general , if not all its specifics: hence the stuffed 2016 Post Election Ethics Train Wreck, still crazy after all these years. I knew the FBI and the deep state ein the Justice Department were part of the plot, as well as the Clinton campaign. I did not suspect that Barack Obama himself was involved until recently—Biden too, of course. That was my confirmation bias: much as I believe Obama was a destructive and wrongfully admired POTUS, I do not want to think holders of the highest office in the land actively work to pervert democracy.

    2. “ Meanwhile, Senators and media hacks are busy undermining the third branch of government by delegitimizing its authority and calling on their emotionally unstable base to create “revolution” and chaos if things don’t go their way. Maybe Pelosi should ask Adam Schiff to form another commission to investigate insurrection against the Court.”

      Out of your entire comment, as far as I’m concerned, the most powerful part was and is, the 3 words “ Emotionally Unstable Base.” They are not only emotionally unstable, They are extremely dangerous. Dangerous as a lone wolf, but even more dangerous and far far more destructive in a large social gathering of feral animals, which they are, when they come together. By listening to the Clarion call of their trumpeters in the NNC, The
      Network News Cabal. Made up by the robotic idiotic talking heads of CNN NBC ABC CBS MSDNC.

  13. Breyer has always used several methods of constitutional justification for whatever outcomes he desires. One is the expansive interpretation of the Interstate Commerce Clause, giving government legislative control of anything that affects interstate commerce. Since everything can be construed to affect interstate commerce in some nebulous way any law he likes can be defended. (Example, he argued against the court striking down a law to restrict gun ownership within a certain distance of a school on the grounds that being less fearful will make better students and more informed and more competitive workforce suitable for interstate commerce – showing that just about anything can be stretched to fit into commerce clause veto or support. He also has his famous “active liberty” interpretation of the constitution where “democratic values enhancement” can be the basis for judicial review. Example, his dissent of Citizen’s United where he stated that stopping ‘horrible’ corporate influence over democratic discussion trumped the basic right of free speech. Now he is using the old trick of selective usage of stare decisis to say that Roe is a super precendent regardless of its weak and even wrong argument. Barrett’s Notre Dame Law Review article on originalism and stare decisis has a thoughtful discussion about this: Ultimately judicial striking down of bad precedent just is Stare Decisis in its most fundamental form, that is letting stand the original law of the Constitution. The constitutional stare decisis trumps the rulings of the supreme court that contradict it or any act of legislation that contradicts it.

    1. I could not agree more with your absolutely outstanding comment!! My friend. Thank you 🙏 so much for it. We need a helluva lot more like them. Bravo 🙌 Bravo 👏 Bravo 🙌

  14. There seems to be agreement that a line must be drawn by someone as to when a fetus is to be considered a human life independent of the mother. There is no discussion in the Constitution about when life begins.
    Should this decision be left to individuals? or must there be a uniform bright line drawn by someone? Should the majority in different states be allowed to draw different lines?
    The word ‘uniform’ appears 3 times in the Constitution in Section 8 (Powers of Congress).
    [A]ll Duties, Imposts and Excises shall be uniform throughout the United States;
    [A] uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.

    This would seem to mean that all other law need not be uniform across the states. The residents of California and Texas may live under different laws. So sayeth the constitution. Different states have defined what is meant by ‘statutory’ rape differently by drawing their state’s line at 16 while another draws it at 17 or 18. When it was pretty much uniformly 12 across the country, one state drew the line at 7. The same act might be legal in one state and quite illegal in another.

    1. “a human life independent of the mother” independence from the mother has nothing to do with it. upon conception the fetus is a separate individual resulting from the combination of the father’s and mother’s genes.

  15. The Framers did intend for a private right of self defense. Militias were made up of men who brought rifles from home to join up together and go fight some invader or the Redcoats or some Indian tribe. You defend self, family, home, neighborhood, town, county,state and country.
    If we need an armed militia to stop Trump we will need to bear arms. And, ask the local bears in our woods to join our militias and arm bears too.
    This is what I, Liberty Second, stand for.

    1. Liberty2nd,

      “ The Framers did intend for a private right of self defense.”

      That’s an assumption of intent. The late justice Antonin Scalia violated his own textualist ideology in Heller to claim there was a private right to bear arms. The 2nd amendment was about states rights to be armed not individuals. As textualists often argue when it comes to the constitution, the word “private” or “individual” does not appear on the amendment. The 2nd amendment was created to appease states need to have militias in order to quell slave revolts and keep slave populations in check. That’s why the first part of the amendment mentions the militias, not private individuals

      Scalia deliberately abandoned his own principles because he didn’t want to upend years of assumption created by those who insisted there was a private right to bear arms. It’s exactly what Turley argues in his column about justices ruling against expectations of what it is considered precedent.

      Scalia knew he would be reviled if he actually stuck to his originalist doctrine regarding the 2nd.

  16. History proves leftist are incapable of moving their radical agenda through the legislative process.

    The Majority of the population are NOT leftists. The vast majority are decidedly right of center when given a list of positions.

    Return the Federal Government to limited, enumerated powers. Let the People and the States run the rest of their lives.

    1. From my perspective, a government policy for the US that is normal and established in our peer countries, is not radical. Single payer health care, free college, livable minimal wage, more concern for the environment, strong social safety nets, and legal abortion. Those are all normal in the rest of the world. Also, those all poll very well in the US. By any definition, it is the Rs that have a radial agenda.

      1. Also what is not normal to the rest of the World is the notion of God given Rights as codified within our Constitution….something that is very not-normal in the rest of the World that has not incorporated the thinking of our Constitution.

        We see power coming from the People and the Government holds only that power the People allows it to have….try that in most of the rest of the World and see how fast you find yourself in a Gulag or taking an eternal dirt nap.

        Our Founding Fathers knew and understood the dangers of a tyrannical central government….the kind that maintained strong Armies to enforce the Government laws and orders.

        That is why our Central Government is supposed to operate under the Enumerated Powers and why States were supposed to maintain Militias and the Federal Government not maintain large standing Armies.

        But the History does elude many on the Left.

        I wonder if that is because of plain ignorance or a rejection of historical events.

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