In front of the Supreme Court on Wednesday oral arguments in Dobbs v. Jackson Women’s Health Organization, Judge Sonya Sotomayor took a whiff of something she didn’t like. She said many abortion opponents, including the Mississippi abortion law proponents involved, were hopeful her three new colleagues would allow the cancellation or reduction of Roe vs. Wade. With the judges Brett kavanaughBrett Michael Kavanaugh Night Health Care – Brought to you by March of Dimes – Supreme Court assesses abortion restrictions, Neil gorsuchNeil GorsuchThe Memo: Trump Justices Seem Set To Restrict Abortion Five Telltale Quotes From Supreme Court Abortion Case Supreme Court Seems Ready To Consider New Limits On Abortion Right MORE and Amy Coney BarrettAmy Coney BarrettOvernight Health Care – Brought to you by March of Dimes – Supreme Court assesses abortion restrictions Listening, she asked, “Will this institution survive the stench” created by such political machinations – then she replied, “I don’t see how it is possible.”
Of course, when the judges start to declare their disgust at the very idea of overturning a precedent, there is another detectable smell in the courtroom. Indeed, it sounded 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?” … Have you not noticed a powerful and nauseating smell of falsehood in this room? There is nothing more powerful than the smell of lies.
Sotomayor judges and Stephane BreyerStephen Breyer Supreme Court Appears to Consider New Limits on Abortion Rights Supreme Court will not exempt hospital workers in Mass. insisted that the full or partial annulment of Roe would bring the ruin of the court by abandoning the principle of watch decisis, or respect for precedents. Yet neither showed the same unwavering adherence to the precedent when they sought to overthrow conservative doctrines. Notably, Sotomayor pointed to another allegedly “political” decision in the recognition by the court of an individual right to bear arms; she and Breyer have both indicated their willingness to overturn the ruling in this case, District of Columbia v. Heller. After this decision, the two continued to disagree and argue that “the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.” Indeed, they can reaffirm this position this term.
Sotomayor’s nose for judicial policy was also less sensitive when she recently called on students to campaign against abortion laws – a major departure from the court’s apolitical traditions. After telling the students, “You know I can’t change the law in Texas, but you can do it and anyone who may or may not like it can go out there and lobby to change the laws that you don’t. do not like. ” She added: “I point it out when I shouldn’t because they tell me I shouldn’t.” It was more than a puff of politics, but the same legal commentators applauding his “stinky” comment have fallen silent in condemning his direct call for political action on abortion. There were also few objections to the stench of politics when the late judge Ruth bader ginsburgRuth Bader Ginsburg’s memo: Trump judges appear poised to restrict abortion. The Supreme Court will hear a landmark abortion case this week. FOLLOWING publicly opposed to a presidential candidate.
These aren’t the only numbers to show such selective outrage. During Judge Kavanaugh’s confirmation of charges hearing, Sen. Sheldon White HouseSheldon Whitehouse The Hill’s Morning Report – Ins and outs: Powell Renamed to Fed, Parnell Drops Senate Bid over Money – Biden Stays with Powell Despite Pressure Senators Call for Smithsonian Latino, Women’s Museums to be Built on the National Mall PLUS (DR.I.) required that Kavanaugh promises to respect watch decisis on cases like Roe deer, but then requested the cancellation of business as Citizens United v. Federal Election Commission. Democratic groups often denounce the conservative majority as “partisan” while demanding the court packing to secure an immediate liberal majority.
On Wednesday, Kavanaugh and other judges declined to say that Roe deer is somehow untouchable due to the passing of 50 years. The 1896 decision to Plessy v. Ferguson was overthrown in Brown v. Topeka Board of Education, approximately 58 years after its writing; the court ruled that his Plessy the decision was totally wrong – one in a long list of reversals celebrated today. This includes Lawrence v. Texas, which overturned a precedent allowing the criminalization of same-sex relationships.
There is, however, a major difference between the pleadings Brown and those in Dobbs. In Brown, the court discussed at length the constitutional basis of the “separate but equal” doctrine; in Dobbs, there was comparatively little substantive defense of the analysis in Roe deer or its successor case, Planned Parenthood v. Casey. Indeed, the gist of the pro-choice argument was that, even if Roe deer was badly decided, it takes more than being wrong to overturn an “established” precedent.
Roe deer was widely ridiculed as being extra-constitutional and excessive when it was published. Even Judge Ginsburg once criticized, declaring: “Roe deer, I believe, would have been more acceptable as a court decision if it had not gone beyond an extreme status decision in court. … Brutal judicial intervention was difficult to justify and appears to have provoked, unresolved, conflict.
In the Dobbs hearing, Roe deer was the view many wanted to preserve but few seemed to want to defend. Part of the problem is that Roe deer died a long time ago. In Casey, the Supreme Court emptied Roe deer and passed a new standard banning state actions that place “undue burden” on abortions. It is therefore difficult to say which precedent is defended as “established” beyond a de facto right to abortion. What’s more, Casey was a simple plurality, and the court often divided 5-4 on subsequent abortion cases.
While defending abortion as a “freedom interest”, efforts to explore the real basis of Roe deer have been largely ruled out. Even when the judges tried to push pro-choice lawyers to defend the key standard of “sustainability”, the lawyer defended it as a “principle” or “applicable” line, but did not really say how it was constitutionally imposed. It sounds odd, because this case is about whether Mississippi can impose a 15-week limit. (The United States is one of the seven among the 198 countries around the world that allow abortions after 20 weeks.)
This seemed particularly frustrating for Chief Justice John Roberts, who ultimately said: “It seems to me that viability has nothing to do with choice. If it really is a matter of choice, why is 15 weeks not enough? He never received a response, and the pro-choice lawyer effectively refused to offer a meaningful alternative test when the judges repeatedly called for it.
Likewise, rather than defending the underlying analysis Roe deer, most legal commentators prefer to attack judges as ideologues for questioning such “established precedent”. Even Sotomayor has portrayed the arguments against abortion as little more than a “religious point of view,” a statement which is extremely out of place and ignores the many secular critics of. Roe deer as a legal case or abortion as a medical practice. Others picked up on this theme and a law professor demanded that Barrett recuse himself because of his own religious beliefs. It was a continued shameful attacks on Barrett’s faith during his confirmation hearing by senators like Diane finsteinDianne Emiel Feinstein New variant raises questions over air travel mandates Progressive groups urge Feinstein to support filibustering or resign Senators call for Smithsonian Latino, women’s museums to be built on the National Mall MORE (D-California).
This is the problem with both politics and lying: it’s a scent that one tends to only smell in others – and which tends to be more pungent when one disagrees.
There is no problem changing your raison d’être for reproductive rights, or even changing your perspective on constitutional interpretations; it is part of honest intellectual development. However, the mere fact that a case sets a constitutional precedent – or even “super previous”, according to some – does not replace the constitutional principle.
Breyer and Sotomayor are known for their often deep and detailed opinions. I expect both to competently defend reproductive rights in Dobbs, even if they do not defend the analysis itself Roe deer. Corn Roe deer should stand or fall on constitutional merits – not feigned indignation at a shifting constitutional precedent.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.