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. Federalists Bought And Paid For With Dark (Koch) Money

    In 2017, the Federalist Society took $5.5 million via an entity called DonorsTrust. DonorsTrust’s has its sole purpose to launder the identities of donors to other groups, so that Americans don’t know the real backers of the groups. It is an identity removal machine for big donors. Through the hard work of investigators, journalists, and researchers, we have learned that the Koch brothers are among the largest, if not the largest, contributors to DonorsTrust. The Federalist Society’s total annual budget is about $20 million, so this $5.5 million in funding laundered through DonorsTrust provides more than a quarter of its entire budget.

    Koch Industries, several other Koch-network foundations and trusts, and nearly a dozen wholly anonymous donors have given over $100,000 each to the Federalist Society.

    https://www.whitehouse.senate.gov/news/speeches/the-third-federalist-society
    ………………………………………………………………………………………………………………

    Here, on this thread, a puppet named ‘Lin’ claims that the Federalist Society is non-political and well-respected on the campuses of every law school. ‘Lin’ goes on to claim that Democratic Senator Sheldon WhitehouseI of Rhode Island is a Federalist member. That claim inspired me to Google Senator Whitehouse’s links to the Federalists. That’s how I discovered this paper by Whitehouse himself.

    Senator Whitehouse details how the Federalists are clearly in the pockets of dark money. What’s more, they function as judicial contractors for the Republican party. Their agenda is clear: “Pro-Business – Anti-Union”.

  2. Svelaz says:

    “It doesn’t surprise me either, what is surprising is that Turley continues to portray himself as objective in his analyses.”

    Well, to be fair, I don’t think he expressly has claimed to be “objective.” Apart from disclosing his employment with Fox when commenting directly about matters involving Fox, Turley does NOT portray himself either way. Instead, he lets the reader PRESUME that he is objective by his not expressly acknowledging his Fox employment in EVERY article he authors which *benefits* Fox but which does not mention Fox, e.g., articles that vilify CNN or MSNBC for some journalistic failure.

    In every public article, Turley should sign-off as, “Jonathan Turley, Fox News contributor.” In so doing, no reader would mistake his bias. His unwillingness to be transparent ALL THE TIME is misleading. It should not come to any reader’s surprise where his allegiance lies.

    When a reader is made aware of a writer’s employer, they can then take the full measure of the writer’s bona fides. For instance, Trumpists believe the MSM is the “enemy of the people,” and accordingly will judge ANY journalist engaged by CNN or MSNBC with the utmost suspicion. Similarly, should not Turley’s readers be aware that he works for a company that accuses the MSM of being “fake news” so that they too can judge him with great suspicion?

    1. JeffSilerman: The good professor has had multiple contracts with left-leaning NBC and MSNBC, as well as CBS and BBC. His columns and commentary also have been published in the Washington Post and USA TODAY–not exactly bastions of conservative politics. The reason he is respected and cited by so many is that he calls them as he sees them, irrespective of political party or identity. He identifies as a Democrat.

      1. To my knowledge, Turley is not on the Left’s payroll at the moment, and given his one-sided hostility towards the MSM networks, I would be surprised that he would be welcome back to their employ. One typically burns one’s bridges when you profit from a network which accuses its media competitors of being “the enemy of the people.” It sounds like Fox made him a more lucrative offer.

        Turley will likely resign himself to follow the path of Dershowitz who also is a Democrat and was featured on Fox as a legal commentator. However, Dershowitz rarely appears on Fox these days for whatever reason. Dershowitz has not decamped to CNN or MSNBC. Instead, he relocated to Newsmax which is even worse than Fox! Won’t it be sad if Turley one day ends up selling his services to Newsmax or One America Network?

        1. Won’t it be sad if one day, you learn the legal definition of “employee,” “employer,” and “employment,” and have to reconsider your comments?

        2. “To my knowledge, Turley is not on the Left’s payroll”

          To your knowledge? Your knowledge has been shown to be worthless and in disrepute. In my estimation Turley interprets the law according to his standards, no matter the time or place. He is a Democrat who likely supported Biden. His problem (for you) was that according to the law he believed certain things that were consistent with Trumps innocence of the charges levied at him along with the evidence.

          His words need not follow the politics of those interviewing him, though those that interview him can choose the topic.

          Your focus on financial gain rather than reputation describes you perfectly.

  3. Professor Turley Writes:

    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.
    ………………………………………………….

    Yes, this sounds like a departure from the court’s apolitical traditions. Yet 6 members of the court belong to The Federalist Society, an overtly political judicial group that is arguably outside mainstream thought. Members pledge to uphold Federalist beliefs regardless of public sentiment. That’s what gives this court its peculiar Pro-Gun- Pro-Life identity.

    1. To those of you who are not lawyers, I respectfully “check” the above comments by the Green Anonymous. The highly regarded and respected Federalist Society “provide[es] a forum for legal experts of opposing views to interact with members of the legal profesiion, the judiciary, law students, academics, and thr architects of public policy.” (source: Federalist Society, fedsoc.org/about-us) Biden’s attorney general, Merrick Garland, has been a guest speaker more than ten times; one of the most “left-leaning” Congressional members was Sheldon Whitehouse. Focusing on scholarly debate, members strive to avoid political leanings, instead promoting “textualism” in interpreting law. The Society includes chapters from more than 200 law schools nationally, but engages in no lobbying, no taking of policy positions, and no sponsorship or endorsement of candidates for political office. I suggest that readers read this for themselves at the website. It is the “anonymous” commenter who, like others here, attempts to discredit any inapposite opinion to his/her own. Commenters of opposing views, who can well articulate their opinions, make others think. That is the value of open debate/polemics—not pseudo-condescension.

    2. “Yes, this sounds like a departure from the court’s apolitical traditions. Yet 6 members of the court belong to The Federalist Society, an overtly political judicial group that is arguably outside mainstream thought. Members pledge to uphold Federalist beliefs regardless of public sentiment. That’s what gives this court its peculiar Pro-Gun- Pro-Life identity.

      If six of nine Justices of the Supreme Court of the United States are “outside the mainstream” of legal “thought,” perhaps it is the bounds of mainstream legal thought which deserve revisiting.

      Nowhere in the Constitution is there a requirement that the nation be ruled by the political opinions of a majority of law professors.

  4. Why have ICBMs pointed at each other perpetually, decade after decade? We don’t have Indians being a thorn in our side anymore, so we should do to Russia what was done to North America: conquer Russia, breathe a sigh of relief, and then have a thousand years of peace. The Russians can live on reservations where they can make vodka in their distilleries. Then we can have real estate agents sell what was once their land. It would be great.

  5. Why not apply the concept of choice to other areas of life?
    What about my choice to decide with whom my body can be?

    1. “Choice” was always a semantic figleaf to obscure the issue – is it a right guaranteed or not a right? Of course everyone has a choice of whether to speak, pray, assemble, etc. No one says “I personally wouldn’t ever speak myself, but I think someone else who wants to speak should have the choice to speak.”

  6. No, This Isn’t The New Civil Rights Movement

    Clueless Trumpers are fond of comparing the Anti-Abortion movement to the Civil Rights Movement of the post-war era. This comparison is an insult to those who led the Civil Rights Movement. Because it is no secret that the Anti-Abortion forces are closely linked White militias and other far-right groups. The Anti-Abortion movement has NO support from traditional Civil Rights organizations.

    It is in important to note where the Hobbs case is coming from: Mississippi. Old Miss violently resisted the Civil Rights Movement as long as possible. And a disproportionate number of states with the strictest abortion laws tend to be south of the Mason-Dixon line. So anyone confusing the Anti-Abortion movement with Civil Rights is utterly mindless.

    1. It’s a human rights movement. It’s also a civil rights movement for “our Posterity”, to overturn planned parent/hood or cruel and unusual punishment, denial of due process, capital punishment of the innocent, ideally from conception, but from viability (e.g. heart beat), in the interim. It is a movement to unwind the Twilight Amendment and its mischief, not limited to the wicked solution. It is a movement to separate the Pro-Choice religion and State, which denies women and men’s dignity and agency, and reduces human life to a negotiable commodity. The tell-tale hearts beat sooner and ever louder. #HateLovesAbortion

      1. N.N. (Estovir) if you think Mississippi is leading the nation to kinder and gentler times, take a look at their Infant Mortality rate. Take a look at their Poverty rate. Only the most clueless would look to Mississippi for leadership.

    2. A bit off the wall.

      Do those that don’t like babies also dislike Afghani children? There are now estimates that 1,000,000 Afghani children might die of starvation. Biden did a great job in killing Americans and now he might have partial responsibility for the death of 1,000,000 children if that prediction bears out.

      In the twentieth century there was a slaughter of 100,000,000 (million or more) by leftists. I wonder what the slaughter will be in 2022?

      1. Unconditional surrender, billions of dollars in state-of-the-art military housewarming gifts, and a first-order forcing of [catastrophic] [anthropogenic] immigration reform (CAIR). I wonder if Biden’s Choice will follow Obama’s transnational, transcontinental model, which will require the next President to mitigate its progress and collateral damage..

  7. If Sotomayor would have said that the court needed an American wise women I would be in agreement with her statement. Instead she furthered the movement toward tribalism when she included the wise “Latina” women in her statement. We are a nation of diversity but in the end we do not identify with a particular tribe first but as Americans first. The good things about a particular people should be celebrated but we should place our pride in a diverse people who form as one union not individual tribes. The advancement of civilization begin when waring tribes begin to disappear. In those times life was very dangerous, very hungry and very short. There are those today who encourage a return to tribalism, black against white, white against blacks, blacks against yellow etc. Those who try to separate us are simply race hustlers looking for their coins. If you are among the tribalism group you can rest assured that your children will sow a life wherein they will wish they had never been born and the guilt will be yours. However, I offer an occurrence that I witnessed just days ago. I went to a Christmas parade. I looked around and saw that more than fifty percent of the people around me were Hispanic. They were cheering and waving at the floats with mangers and American flags. I was encouraged. There are people who want to separate us by tribe but you can stop those who would cleave us apart at election time.

    1. Diversity [dogma] (i.e. class-based bigotry), inequity, and exclusion (DIE) breeds adversity.

      That said, diversity of individuals, minority of one.

    2. What is particularly disappointing is that we needed a Wise Latina, and it was proposed that Sotomayor was the Wisest Latina available.

      Things are not looking so hot for the status of Latina wisdom.

  8. Shame on Sotomayor. She IS the stench on the Court. NewYork “in-your-face” rudeness, lack of civility, base commentary, absence of dignity and decorum (appropos to the position, as well as Court demeanor in general…Even her physical appearance (slumpy, sloppy, slouchy) lowers the image of the Court. HER comments were the ones that were “political.” I graduated from law school before she became a Justice, but I can tell you, she would never have been my mentor or hero. Compare her to how Sandra Day O’Connor conducted herself. Even RBG was not crude like she is. I believe she has prostituted the dignity and high honor of justices on the Court.

  9. The media, activists, and politicians have misrepresented what’s at stake with Roe. Claims that Roe itself is necessary for there to be abortion in America are spurious. Look at the near total lack of abortion restrictions in NY and VT, for example. It is my understanding that in VT, a woman can get an abortion at any time and for any, or no, reason.

    Propaganda based on false information has driven riots, arson, and looting. It’s now whipping Democrat voters into a frothing frenzy that Roe is a sacred cow.

    I believe Roe v Wade was an example of legislating from the bench. It took critical parts of a very important issue out of the hands of Congress and voters.

    Abortion should be decide by the states. That would make laws more easily changed if and when public opinion changes. Laws should reflect the values of the governed. There is actually quite a bit of overlap between Pro Choice and Pro Life, making the issue more of a spectrum than a binary position. Most of those who identify as Pro Choice find zero restrictions on abortion to be unpalatable. Those who are Pro Life can understand situations where the removal of a pregnancy prior to viability may be necessary to save the mother’s life, when a health crisis hits too soon in gestation.

    I don’t know what the most fair abortion law would look like, but I find abortion itself to be so terribly sad. Most of the time, a perfectly healthy unborn baby is killed for convenience. The consequences for consensual sex have been removed. In fact, life as a result of sex seems unfair to some. It’s not tissue in there, or a ball of cells. It’s a unique, developing human baby. Quite early in gestation, it looks like a baby. He or she can be aborted while it’s sucking its thumb or kicking.

    I believe if wombs were transparent, there would be less abortion.

    1. Pro-Life is pro choice: abstention, prevention, adoption, or compassion. I would add self-defense through a process of reconciliation: ideally both lives, otherwise mother’s choice. Following Texas, elective abortion until viability (e.g. heart beat), and not the social construct that characterizes the modern model, which would ideally be limited to pregnancy through involuntary exploitation. Better dead (e.g. anti-adoption) is the wicked solution for light, social, redistributive, and fair weather causes.

    2. “That would make laws more easily changed if and when public opinion changes.”

      Whichever country you’re speaking for, it’s not America. This country was designed to protect against the horror known as the tyranny of the majority.

      1. “This country was designed to protect against the horror known as the tyranny of the majority.”

        Sam, the tyranny of the majority argument is a two-edged sword and a matter of perspective. We protect the minority, the weak and those without a voice. Who is the most vulnerable and needs protection more than the developing baby soon to open its eyes and see the world? Your rejection has less to do with the tyranny of the minority than it has to do with who carries the right to that protection.

        1. The notion that the law should reflect the will of the majority (in this case, of the voters in a particular state) is a *collectivist* premise.

          That some on the Right embrace that premise — in the name of political expediency — is a rejection of individual rights and individualism, which are the essence of America. It is a betrayal of a system and a country that they claim to love.

          The next time some Leftist uses collectivism to usurp more rights, you will not have a principled leg to stand on.

          1. “The notion that the law should reflect the will of the majority (in this case, of the voters in a particular state) is a *collectivist* premise.”

            Sam, I accept your belief in what you say, but I beg to differ. We have the essential disagreement over what constitutes human life. As I have repeatedly said, until that singular idea is agreed on, both sides will have legitimate points ending in a stalemate.

            “That some on the Right embrace that premise…”

            I think such a statement is barking up the wrong tree and doesn’t solve a moral problem where both sides are NOT on opposite poles. The majority are in the middle, quite disturbed by the use of abortion as birth control, eugenics, etc., yet desirous of giving the mother autonomy over her own body.

            The issue is morality, where the population contains a few heinous individuals. Moral problems are resolved by laws that pertain to the communities where specific moral issues pass over almost all boundaries. The opinions expressed on this issue are distributed over the entire spectrum. There is no such thing as a majority in the range of solutions.

            Instead, at this time, an agreement will arise only with compromise. To me, that means the issue itself resides at the local (state) level. It was never meant to be a federal issue.

  10. I agree with you Turley on the feigned moral outrage in this respect — the moral high ground of the SCOTUS has long ago entered stench territory. Overturning pre clearance and siding with corporations are just two decisions where this was on full display.

    As far as thIs goes: “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.”

    If there’s an insistence to break this down to just sheer numerical reality, the difference is 8 weeks. Time enough to save for an abortion. Time enough to learn how to accept and navigate what is a complete upheaval in someone’s life who is having an unwanted pregnancy. Time enough to lessen the shock of the voice of so called ‘pro life’ sentiment to lose its sting as someone figures out how to move forward step by step into the next phase of life…

    Not only that, but time enough for viability to become viable, i.e. the baby actually being able to survive in the world.

    Better yet, time enough for the sheer hypocrisy of the right to lifers to be able to drift off into the obscurity it deserves to thrive in. If the SCOTUS reverses precedent on precedent here, it effectively just penalizes poor people who need an abortion. Kavanaugh would be the first to send a daughter to another state for a safe abortion if faced with those circumstances. Hell, he’s probably had to send a couple girlfriends to clinics in the past.

    Not that what you say about Casey’s weakening of Roe doesn’t exist…, but that just goes to show that there have been many attempts to weaken Roe. To give in now wouldn’t create a stench, it would just make the existing stench even worse.

    1. “Kavanaugh would be the first to send a daughter to another state for a safe abortion if faced with those circumstances. Hell, he’s probably had to send a couple girlfriends to clinics in the past.”

      How do you know? It sounds like you are making things up again.

      1. So sad when someone with an IQ probably half that of the intended target comments in such a demeaning way! So sad!

      2. In the choose-your-own-adventure novel that is American politics for nice liberal white ladies, Brett Kavanaugh is a beer-swilling, gang-raping Hells Angels type.

    2. “Re Kavanaugh: “Hell, he’s probably had to send a couple girlfriends to clinics in the past.”

      It seems you have run out of predigested talking points from the left and now have to rely on libel. That is what happens when you have nothing truthful or worthwhile to say.

      1. Hey Allan!

        Let’s diagram your response (just for kicks)…

        “It seems you have run out of predigested talking points from the left and now have to rely on libel….”

        This is standard Allan deflection and distraction.

        “…That is what happens when you have nothing truthful or worthwhile to say.”

        This is standard Allan attack tactic.

        At least we were spared the self professed genius claim on the back end. Always thankful for one less opportunity to throw up in my mouth every day.

        1. “This is standard Allan deflection and distraction.”

          Anonymous the Stupid, when you libel someone and you are called out on it, I can understand why your response contains no content. That is the reason for my response, “That is what happens when you have nothing truthful or worthwhile to say.”

          Anonymous the Stupid, even you notice that your light is fading and you are disappearing.

  11. How would Jews like it if Christians made a cartoon that gleefully squirted diarrhea all over Hanukkah?

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