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.

NEXT: Justice Sotomayor Needs To Re-Read Marbury v. Madison

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  1. "the Imperial Judiciary should be disarmed."

    Absolutely. The question of whether or not the justices can bear arms should go back to the individual states for political debate there. By all means, in the meantime, they should be disarmed, as you suggest.

  2. "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."

    Little more than rote propaganda. One thing I've noticed since they've started live-streaming the audio, the justices seem to have become more aware of the potential impact their little "sound bites" might have on the 6 o'clock news. That's exactly what Breyer was doing here.

  3. The woman should decide. Kinda simple.

    1. Agreed. But the question is whether that rule should have come from the Legislature(s) rather than from the Court.

      1. If it comes from the Legislatures (over 29 of which will say "no"), then it is not the woman choosing.

      2. This whole line of rhetoric is so tiresomely in bad faith.

        Your problem is not that the Court has laid down the rule on abortion. If that were your issue, you would have the same complaint about every other Court decision expanding individual liberties, whether that's free speech, free exercise, freedom to bear arms, or anything else.

        What your issue actually is is that the "right to abortion" is somehow a lesser constitutional right than the rest, which has to do with how it developed out of a series of cases themselves based on "penumbras" and "emanations." That's Josh's view, as well.

        But this complaint is not legal in nature. It is prescriptive. Nothing in our law says that constitutional rights derived from a general right to personal privacy found in the structure of the Constitution and the Bill of Rights are any "lesser," or subject to rolling back, than other rights. Moreover, it's puzzling in the extreme to explain how one could maintain that complaint while blessing whole reams of constitutional jurisprudence similarly based on inferences found in the constitutional structure or holdings on the enumerated rights that themselves have no textual basis. Where is the "time, place, manner" exception to the First Amendment, for instance? How does the Second Amendment protect a right to bear arms in one's self-defense, except if you're a felon or in a sensitive place? Why do we allow the Equal Protection Clause to prohibit affirmative action, when AA would have been consistent with what the drafters of the Fourteenth Amendment had in mind, after the Civil War?

        This whole charade is pretend jurisprudence, not thought through, not even half-baked. It's political maneuvering, from top to bottom, and the best case scenario for pro-lifers would leave a gaping, incoherent hole in our constitutional jurisprudence. Just another thing to clean up, in a hundred years, like Plessy and Korematsu and the more recent cases on voting rights and political gerrymandering. If the republic can manage to survive that long.

    2. From your gendered name(s), one might guess you want to be that woman.

      1. Á àß,
        I'm not sure I am understanding your post. I think it's clear that Molly wants to be the woman who decides, if *she* becomes pregnant. Are you suggesting that Molly also wants to be the person who decides, if you were to become pregnant (or your sister, or your wife/girlfriend, or your daughter, etc)? Cuz I don't see how you get there from what Molly wrote.

        Or did you have some, different, third meaning in mind?

  4. Sotomayer's comment - "That's the point," she said.

    blackmon's comment - " 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.""

    Similar to sotomayer's dissent is Shutte v Bamm in which she claimed that it was unconstitutional for the citizens of Michigan to enact a constitutional amendment requiring compliance with the 14th amendment of the US Constitution - Because the enlinghtend elites of the state of michigan should have the power to discriminate.

    1. "...the enlightened elites of the state of Michigan should have the power to discriminate."
      Right. They feel that "the enlightened elites" should be able to do anything!

  5. Oh spare me, you utterly shameless partisan hack.

    Your caterwauling about respecting “democracy” and “states deciding” rings hollow considering your positions in other cases. You want your judges to decide state health policy, gun policy, economic, anti-discrimination policy etc. You tried to use the judicial branch to undo a very popular piece of federal legislation enacted by a very popular majority by a very popular president, that could not be undone by the minoritarian Republicans even when they had total control. And you whined about it to no end, even doing a post about how it wasn’t over after SCOTUS decided. Again, spare me.

    And let’s talk about this Court. The one you support now, but get mad at when they don’t go your way all the time. You have this opportunity because seat vacancies were manipulated by a senate that didn’t represent a majority. Barrett is the key vote and she’s only on the court because Mitch McConnell lied in 2016, on the Senate floor, about believing the American should have a voice. It was shown it was a lie in 2016 when he immediately let a president who lost the popular vote appoint a new justice during an election he would lose by more than 7 million votes. A justice you wrote multiple thirst posts about. Again spare me.

    This majority you support also want courts to stay out of gerrymandering, basically ensuring that minority rule is entrenched in states and the democratic process is useless within them. And let’s not even get into how certain parts of the court you support want to let those same minoritarian legislatures choose Presidential electors regardless of what people want. It’s anti-democracy all the way down, and you support it. Again spare me.

    You are the most shameless, principle-less, morally bankrupt, and transactional of the VC. Yet you lack the self-awareness to realize that. Even your ideological allies think you’re a clown. No one else will write this post because they know it would be utter horseshit to claim the mantle of democracy for this case. They’ll at least focus on the arguments and put popular will aside.

    So again spare me. Spare us all.

    1. You are the most shameless, principle-less, morally bankrupt, and transactional of the VC.

      Yes. Or of any number of other groups.

      What Josh seems to want is elevation from his current position at a very low ranking law school, either to the (shudder) bench or some better institution. And he stops at nothing to please those who can help him achieve this.

    2. +1. I can't seem to remember his outrage about the imperial judiciary when the court in Shelby County stepped in to amend the Voting Rights Act section that Congress could have amended or updated but didn't. Conservative Jurisprudence today is entirely bad faith and pretextual grabs at some overarching principle that they subsequently casually discard when it doesn't produce the desired result. It's a comical level of hypocrisy.

      1. This blog appears to be the best conservatives in academia can manage these days. Prof. Blackman is the future of right-wing legal academia.

        I am content.

        Not even close to tired of winning. Open wider, clingers.

  6. Imagine the hubris for a hack like Blackman - barely qualified to teach 1L, to criticize SCOTUS as not understanding the law.

    This blog deserves better than partisan manifestos.

    1. Don't let the door hit you on the way out.

      1. Considering that I have no intention of leaving, I'd say your concern is misplaced.

        Your echo chamber fantasy won't be coming true anytime soon.

    2. " This blog deserves better than partisan manifestos. "

      No, it does not.

      This White, male, stale, right-wing blog is and gets what it deserves.

      Carry on, clingers. So far as obsolete, bigoted conservative-Republican thinking can carry anyone in modern America, that is.

  7. " Justices Breyer and Sotomayor would benefit from a read. "

    Could it benefit them enough to position them for faculty positions at a southern diploma mill?

  8. " bolstered the case why the Imperial Judiciary should be disarmed "

    Good news. The (current) Supreme Court will be disarmed.

    I for one will welcome our four new overlords.

    Clingers hardest hit.

  9. States´ rights has been a discredited doctrine since the 1950s and 1960s. Folks like Orval Faubus and George Wallace gave it a bad name. (Governor Wallace, to his credit, later repented.)

    1. Someone is taking Prof. Blackman's "Imperial Judiciary" comment literally...
      Did you know that in Russia, Putin gets to appoint the governors of the various Russian provinces? Would you like to implement that system here?

  10. It continues, violent writer should have to pay for the beliefs he wants to force on others.

  11. Gosh, Josh, where does this principle of judicial humility leave you, when it comes to the religious freedom cases? Why is the Court authorized to declare that the Constitution exempts nuns from even having to apply for exemptions not to pay for contraceptives, and anti-vaxxers from broad-based vaccine mandates, but not on whether gay people should be able to marry (or remain married to) the partner of their choice no matter where in the country they might live or whether women should be able to decide whether to carry a pregnancy to term?

    You want to disarm the judiciary? You want to return these kinds of decisions to "the people"? Fine. Let "the people" decide whether to grant religious exemptions to anti-vaxxers and let "the people" decide whether high schoolers need access to guns. Otherwise, shut your hypocritical and mendacious mouth.

  12. Of nearly 200 ranked law schools in the United States, how many are ranked lower than South Texas College Of Law Houston?

    ___ one

    ___ two

    ___ three

    ___ four

    ___ five

  13. 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.

    This bizarre detachment from reality is everywhere now -- in the "mainstream" press, on TV, in school textbooks, college courses, etc. (And, of course, in the pronouncements and enactments of Democratic politicians!) You're presented with a distorted / fake picture of the world.
    The most egregious example I can think of are the "mostly peaceful protests" last summer.

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