The Volokh Conspiracy

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Justice Breyer and Sotomayor Do Not Understand Who Decides

The Justices who profess the greatest respect for democracy forget the Court is the least democratic branch.


During arguments in Dobbs, I kept thinking about Who Decides?, Judge Sutton's new book. Justices Breyer and Sotomayor would benefit from a read. Both of these justices often profess profound respect for the democratic process–even though that respect usually manifests itself by the courts intervening in the democratic process. Fittingly, in Dobbs, they forgot that the least dangerous branch is also the least democratic branch.

One sentence from Justice Breyer sums up his misplaced understanding of the separation of powers:

JUSTICE BREYER: And they say Roe is special. What's special about it? They say it's rare. They call it a watershed. Why? Because the country is divided? Because feelings run high? And yet the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women's choice. That's what makes it rare.

Justice Breyer seems to genuinely believe that the Country resolved the debate about abortion by letting the Court lay down a constitutional principle in Roe and Casey. Really? I must have missed that national plebiscite.

No. Roe and Casey usurped this issue from the American people. Mississippi, Texas, and other states obviously disagree with this rule. And the notion that Roe and Casey "resolved" any differences is false. I can do no better than quote from Justice Scalia's dissent in Casey:

The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve.

Scalia's words have aged well over the past three decades.

Justice Sotomayor expressed a similarly misplaced understanding of the Court's role. Her colloquy with SG Stewart is difficult to follow because of the cross-talk and interruptions. But here is the gist.

Justice Sotomayor asked about the consequences of overruling Roe. Would some states challenge cases like Loving, Griswold, Lawrence, and Obergefell? Stewart couldn't deny that possibility. He acknowledged that "we'll always have a diversity of views." Of course, in any polity, diversity of views is to be expected. Justice Sotomayor interrupted, and thought she had a gotcha moment. "That's the point," she said. In other words, the fact that people will disagree is a reason for the Court to maintain Roe and Casey. The benighted Justices know better than the simple people.

Stewart disagreed with the premise of the question. He said this diversity of views is "one of the benefits of our society." Specifically, "there's a diversity of views and people can vigorously debate and make decisions for themselves." The most important right is not some emanation from a penumbra, but the right of self-governance. The Declaration of Independence was premised on the absence of representation. In this regard, Roe and Casey deprived all 50 states of this foundational right. But Justice Sotomayor thinks the fact that people will disagree is a reason to perpetuate judicial supremacy.

I already noted that Justice Kagan's questions were utterly unproductive. Justices Breyer and Sotomayor, perhaps unintentionally, bolstered the case why the Imperial Judiciary should be disarmed.