The "Stench" of Justice Sotomayor's Putrid Self-Fulfilling Prophecy

If she is so worried about the Court's politicization, she wouldn't expend so much effort to call her colleagues partisans.

Today I was in Washington, D.C. for a meeting on Capitol Hill. After the briefing, I walked over to the Supreme Court. And much to my pleasant surprise, no "stench" emanated from One First Street. The air was quite fresh. But at least one Justice will do everything in her power to ensure that a "stench" is perceived, and then commiserate how her partisan colleagues created that "stench." During arguments in Dobbs, Justice Sotomayor cast a putrid, self-fulfilling prophecy.

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

Questions like these will help bolster the negative public perception she apparently dreads. Sotomayor must have known that the livestream would make that line go viral. Already, allies are merchandizing.

???????? you asked, we answered -- "stench" merch! ????????????️????️

(including some to help you celebrate the holidays!!!????????????????)https://t.co/j29D4ZxJOK pic.twitter.com/LYaMu8NrSa

— Strict Scrutiny Podcast (@StrictScrutiny_) December 2, 2021

And as we speak, Justice Sotomayor is likely writing a blistering dissent excoriating her colleagues. Does she call on Congress to "heal" the Court?

If Justice Sotomayor is so worried about the Court's politicization, then she shouldn't expend so much effort to call her colleagues partisan.

Comments

[Frank Drackman]

the fox smells his own hole first, First!

[Jon S]

The difference between the reasoned and thoughtful analyses of the issues in Ilya's and David Post's posts below and the bizarre, serial, whiny postings of Blackman, which simply assume the correct holding and go from there is, uhh, something to behold.

[Randal]

Can we please gift him his own blog? He deserves it! Yay Josh, now go away and live over there.

[Adabsurdum]

Yup. The quality of this blog suffers from the two or so partisan hacks that post articles to be circulated on alt-right Twitter. Being silent about it (as Blackman begs a Justice to do) doesn't fix anything. Eugene, Ilya, Post, etc. need to understand what their reputation faces being attached to partisan hacks like Blackman who engage in no serious legal analysis and write Breitbart style articles. I am embarrassed to share this blog with students anymore, I haven't for years. It used to be that I'd point to the blog's articles to inspire journal note topics for 2L students.

[legalizemushrooms]

It’s a good thing she raises a stink, so that her fellow justices will be loath to repeat the overturning of precedent on other issues. Make it memorable.

[Zennyfan]

Let’s keep Kelo because … stench.

[Brett Bellmore]

Democrats tend to think of Democratic policies as just the default, and only departures from them as "partisan". So she's really quite serious about it.

[Martinned]

Given that Republican politicians spent the last 30 years politicising Roe, and strategising about how to bring about exactly this day, you might be able to see how a neutral observer would think of a departure from Roe as "partisan".

[Ed Grinberg]

Republican politicians spent the last 30 years politicising Roe

???
It is a political issue.
Like Brett said, it's almost as if Democrats want to declare all their preferred policies "just the default," and if you oppose their policies -- you're being a nasty partisan. A brilliant strategy (if people are dumb enough to buy it)!

[Martinned]

Democrats want to declare all their preferred policies "just the default,"

No, just the ones held to be Constitutional norms by the authority of the Surpeme Court of the United States. For example, nobody is saying that "no dealth penalties" is the default somehow.

[WPHDM]

RESPECT FOR LIFE AS DEFAULT

No death penalty ought to be the default for all, not just Dems.

Much of the civilized world has reached that value consensus.

[WuzYoungOnceToo]

Given that Republican politicians spent the last 30 years politicising Roe

It's a good thing that Democrats don't engage in fear-mongering over it when campaigning for office.

[LawTalkingGuy]

Yes. Only democrats do that. JFC.

[Snorkle]

Holy crap - "[If she is so worried about the Court's politicization, she wouldn't expend so much effort to call her colleagues partisans.]"

Blackman is so high on his own farts he can't even see straight.

Funniest moment in a really dark day for freedom.

[John F. Carr]

She was speaking to liberals in their filter bubbles who dutifully shared with other bubble residents how awesome she was.

[Randal]

But she's not wrong. Overturning Roe will be seen as political no matter what she says... because it is. It's been the #1 political issue on the right forever, and dubious moves like McConnell's court-packing tricks made it happen.

If it's basically 5-4 with all of Trump's picks voting to overturn, the court will have so little legitimacy left that it won't matter if the Dems decide to pack it some more. That's what she means by not surviving. And that won't have been Sotomayor's doing, it'll be McConnell's mainly but also the new justices' for going along with the scheme.

The Republicans have turned the court into another legislature, just a very slowly moving one.

[Jmaie]

Is it merely political to overturn a precedent if said precedent was incorrectly decided?

[Randal]

Yes, of course it's political! This exact point came up in the argument. The court has never before overturned a decision just because it's incorrect.

That's the whole point of stare decisis. There has to be more. Some new development, new argument, something. It can't just be well, we found some new people that disagree with the old people. That's political practically by definition.

[Kazinski]

One of the other factors is that it's not really a workable decision, like the problems of using a viability cutt off.

But really, wasn't Plessy just wrong enough on its own that it didn't need other factors to justify it's reversal in Brown?

[Frank Drackman]

what was wrong with "Separate but Equal"? you prefer "Together and Unequal"?

[Randal]

I think Brown was able to point to the south and say "See? It didn't work out the way Plessy thought it would." Abortion doesn't have that. Casey's working mainly the way it was intended to work.

The viability line is totally workable. What's wrong with it? The unworkable piece is the "undue burden" test. But that's fixable. The liberals were even proposing fixes, but the conservatives are pretty dead-set on overturning Roe it seems like.

[rsteinmetz]

Plessey was decided May 18, 1896. Brown was decided May 17, 1954 almost exactly 58 years later to the day. Roe was decided January 22, 1973 almost 50 years ago.

The actual background of Plessy is often overlooked. It was about a Louisiana Law that required railroads have separate cars for White and Black passengers. The Railroads didn't like that because they had to haul more cars than they needed so some of them encouraged this suit.

What many people overlook is the one holding of Plessy was that all citizens were equally entitled to government services regardless of race. I think this was used to force segregationist governments to provide schools, among other things, for black - something that many weren't doing.

I have heard but can't confirm that the Supreme Court never found that any schools were actually separate but equal.

[JJJSSS]

But Brown didn't reverse Plessy on those grounds. The decision in Brown revolved around a new argument- that because of the psychological impact of separate schooling, it didn't matter whether separate schools had equal assets, equal pay, equal teacher training- they inherently could not be equal because the very existence of separation when it came to schooling meant that the schools were unequal.

[Bob from Ohio]

"whole point of stare decisis. There has to be more. "

No, a written Constitution is the only binding precedent. Stare decisis is a common law idea developed in a country without a written constitution and with legislative supremacy.

If a decision is against the constitution, it should be reversed.

[Randal]

Are you saying that the authors of Roe and Casey were intentionally thwarting the Constitution? That's a pretty serious allegation that I've never heard before.

[Chuck P. (The Artist formerly known as CTSP)]

That's a pretty serious allegation that I've never heard before.

Only if you have not been listening.

The idea that without federal legislation directly on point, that abortion is a state rights issue has been debated during and since the original decisions. It is not controversial to note that the authors chose to incorporate an unenumerated 'right to privacy' in Roe in contravention of the numerated 10th amendment: "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[Sarcastr0]

14th supersedes 10th.

It came later.

[Randal]

You sort of missed the point, but some thoughts anyway.

Obviously a lot of people disagree with Roe and Casey, but that doesn't mean the authors were intentionally undermining the Constitution. They were interpreting it they way they saw it.

Also, if you read the arguments, there was very little appetite for disavowing the underlying rights. In fact, because so much else has been built on top (contraception, sodomy, same-sex marriage), there was a lot of talk about why abortion is different, that is, how to cancel abortion without impacting the underlying rights. So the opinion is actually likely to explicitly affirm the part of Roe you're complaining about, and just split abortion off from it so that it can be squashed without major repercussions.

[Kazinski]

Blackmun wasn't interpreting the constitution the way he saw it, he was interpreting it the way he thought it should be.

There is no possible constitutional justification for his structuring the right of abortion around trimesters. It was pure and simple a legislative decision, not a constitutional one.

[Randal]

Every constitutional right has arbitrary structure around it to give it practical effect. Do you see the Miranda warning in the Constitution? Do you see "except for obscenity and fighting words?" "Except for laws of general applicability?" "Hunting and self-defense?"

Get real.

[Randal]

Or are you just saying that you don't like stare decisis? That's fine, but it's the only thing keeping the court from being nakedly political. You might think your guys are right about the Constitution and the other guys are wrong, but you're not the only one who thinks that.

[Chuck P. (The Artist formerly known as CTSP)]

And there is nothing keeping the Congress from passing legislation legalizing abortion in all jurisdictions within the United States and making the court decisions moot. A decision that requires (and allows) the politicians to be political instead of the courts is not a political act, it is the undoing of a political act by the prior court.

[Kazinski]

I don't think that's true. I think the locus between interstate commerce and abortion is too tenuous to give congress that power.

I think states can legislate to legalize or criminalize abortion based on their police power.

[Chuck P. (The Artist formerly known as CTSP)]

It is a routine medical procedure, something the commerce clause should actually apply to.

[Martinned]

Sure, but what's "interstate" about it? For example, you may have noticed that the medial profession is regulated by each state separately, with a state medial board and a state medical licence.

[Brett Bellmore]

" The court has never before overturned a decision just because it's incorrect."

That's a damning thing to say. I could hardly think of worse you could say about the Court, and it might be true.

[Randal]

Like I was just telling Bob, that's the point of stare decisis. Decisions by the court are essentially correct by definition. They're the deciders.

As soon as you can say well, we think the old justices were simply wrong and we're right, so we're just gonna change everything up, then you have a legislature.

[Randal]

In this vein, I actually think there's a slim chance that Barrett will save Roe. It's very slim but...

All her questions were focused on finding that new fact, that reason why the authors of Casey were correct with what they were given, but now that things have changed, their opinion no longer applies. That is, she seemed unwilling to just say "they were wrong, I'm right" like the other four anti-choice justices seem only too happy to do.

But what's changed? Nothing that came up during argument was very convincing. She seemed to like the idea of safe-haven laws being the thing, but it isn't great. The aren't new, they still require forcing women to give birth, and most of all, it isn't convincing. "Good news women, you don't need abortions anymore because the government will take your babies off your hands" doesn't seem like a real reason for taking away a constitutional right. Might as well just say "good news gun owners, you don't need your guns anymore because the police will protect you."

She'll probably say it anyway. But maybe, just maybe, she'll be the fifth vote in favor of stare decisis. They'll still gut Casey for sure, but even preserving a nominal abortion right at this point would be a huge deal.

[Brett Bellmore]

No, then you have humans, who understand that mistakes and worse can happen. When an engineer designs a bridge wrong, the wrong calculations don't stand just because the guy who finds the mistake isn't a legislator. When your accountant discovers he subtracted where he should have added, he fixes the bottom line, and never mind that he's not in Congress. When your doctor finds out that the drug he just prescribed you was the wrong one for your ailment, he doesn't leave you taking it because he's not a Senator.

Your whole argument here is premised on the notion that the Court's rulings can't be objectively wrong. They can only be disagreed with. But only legal realists take that position, and most people aren't legal realists, they think that the judiciary can make mistakes or worse, just like anybody.

If anything, it's legal realism that treats the judiciary like a legislature. The legislature writes the law, it can't be wrong about the law because it is creating the law; If the legislature says the speed limit is now 54 miles per hour, that literally IS the law.

The judiciary doesn't make law, it interprets law somebody else made. As such, the possibility of mistake, (or again, worse.) is inherent, because somebody else decided what the law was supposed to be, was entitled to decide what the law was supposed to be, and if the judiciary disagrees with them, it's the judiciary that's wrong.

Their only excuse for overturning laws is that they conflict with higher laws, to which the same principle applies. The legislature is entitled to make the law, but not in conflict with the constitution, but it wasn't the judiciary's job to make the constitution, either.

[Sarcastr0]

Brett, no human has access to objective truth. We can try our heir best, but some humility in realizing that others also tried their best is due.

[Randal]

What Sarcastr0 said.

Or, put another way, it's pretty hard to imagine scotus putting out an _objectively_ incorrect opinion, like 1 + 2 = green. The one case I can think of, Scalia's incorrect cite, was of course pointed out and mocked instantly, so he actually went back and fixed it himself.

One of the stare decisis factors is whether new information has come to light. So maybe you could have a case where the old justices depended on the science of the day but the science changes. That would be fine.

But never simply, we came to a different conclusion than the last guys.

[Randal]

Also, when the court is wrong about a law, it's up to congress to correct the mistake. When the court is wrong about the Constitution, it's up to congress and the states to step in. McConnell-style court-packing should never be the solution. McConnell was the tit and there will be a tat.

[not guilty]

I think that West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), overruled Minersville School District v. Gobitis, 310 U. S. 586 (1940), just because the precedent was incorrect.

[Randal]

This seems like a pretty good example. The concurrence (by the justices who changed their minds) points out one thing though: the case before them. It can happen that an opinion is issued, then another case comes along that pokes a hole in it. If the hole is big and fundamental enough, it can bring down the entire prior opinion.

Here, Jehovah's Witnesses came along as said, we have a religious objection to saying the pledge. When looking at how to accommodate them, the justices realized that in this context (speech), a philosophical objection was just as valid as a religious one, and since anyone can have a philosophical objection to the pledge, there was no sense in calling it mandatory.

Do you know an example like Mississippi, where it's basically the same case again (or the same case for the 100th time), and the justices are like ok, same case, same facts, different outcome?

[Ashland]

See United States v. Dixon, 509 U.S. 688 (1993) [opinion by Scalia] overruling Grady v. Corbin, 495 U.S. 508 (1990) [opinion by Brennan].

[Randal]

"But Grady was not only wrong in principle; it has already proved unstable in application."

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Uhhhh ... it's only been the right's #1 political issue since the Democrats turned it into a federal issue. It didn't just pop up out of the blue.

[Da5id]

It's almost like abortion is a political topic rather than (necessarily) a constitutional one. It has been since the very beginning. Imagine a political topic being handled politically. I'm in favor of abortion being fairly permissively legal (somewhere in line with international western norms), but that doesn't mean that it is a "right" to be granted by the court.

[Randal]

Yeah but that argument also works on the first and second amendments really well. We can follow Kavanaugh's advice and make the Supreme Court neutral on gun ownership just as easily. It's controversial, let the people decide!

[Commenter_XY]

Enumerated right = 2A. Nice try.

[Randal]

Hardly. For one thing you're begging the question. For another, there's lots ambiguity within the text of 2A that the court could decide to be "neutral" about, like individual vs. collective and what "well-regulated" means.

[TwelveInchPianist]

There's no ambiguity in the text.

[Randal]

I agree. Nowhere does it mention hunting or self-defense, so those are out just as easily as abortion. It does say well-regulated and militia, so let's regulate guns well for the purpose of militias.

If you don't agree, then it's ambiguous. Different people can come to different good-faith conclusions about its meaning.

[TwelveInchPianist]

"so let's regulate guns well for the purpose of militias."

Regulate what you want, as long as you don't infringe on the right of the people to keep and bear arms.

[Randal]

I like how you keep proving my point for me.

[BadLib]

The Second Amendment unambiguously says "the right of the people to keep and bear Arms, shall not be infringed". The "people" is not a "state controlled militia".

The prefatory clause identifies one reason that the people's RKBA shall not be infringed.

Every other use of "people" in the Bill of Rights refers to an individual right, not a collective right of state governments.

When the drafters of the Bill of Rights meant "state", they used that word and it's clear from the wording of the Tenth Amendment that they didn't use the terms interchangeably (not that any rational person would think they would).

Do you also believe that "The right of the people to be secure..." in the Fourth Amendment refers only to the right of state organized and regulated groups of people rather than a right that an individual person has?

[Randal]

The point is, it doesn't matter what you or I think. The Supreme Court issued a controversial decision. If the fact that it's controversial is in itself a reason to overturn it, then gun rights are just as vulnerable as abortion. And it doesn't help to say "it's wrong." A lot of people think Heller is wrong. A lot of people think Roe is right.

(Since you asked, personally, I think the right to bear arms is personal, but amenable to regulation. I don't see hunting or self-defense as subsidiary rights any more than shooting up old cars is a subsidiary right. The only subsidiary right is the one named: the freedom to form armed militias, although again, pursuant to appropriate regulations.)

[Brett Bellmore]

Trivially, every single Supreme court decision is 'controversial'; They don't get cases where everybody agrees! No court does.

The reason for overturning Roe isn't that it's "controversial", it's that the decision is WRONG. It was wrong the day it was decided, and it's been wrong every day of the half century since.

It's actually seriously controversial because it's wrong, not the other way around. Even legal scholars who liked the outcome came out and said that the reasoning was lousy.

[Randal]

Wow are you in a bubble!

[Kazinski]

I certainly don't see any ambiguity. I think the self defense right Heller asserts is irrelevant. My right to keep and bear arms has nothing to do with how I use that right.

Just as my right to freedom of speech isn't dependent on whether I use that right to campaign for politicians, or tell everyone the end of the world is nigh.

[Sarcastr0]

My right to keep and bear arms has nothing to do with how I use that right.

That's just how you resolve the ambiguity - by ignoring the language about how you use the right.

It does not mean the ambiguity isn't there, just that you've blinded yourself to it.

[Randal]

Also, you disagree pretty much entirely with Heller, so good for you. (Heller found the self-defense right to be very relevant, which I agree is dumb.)

[Kazinski]

But the text of the second amendment is very explicit. That's just not an argument you can make with Roe.

As a libertarian I want the government staying out of almost all personal decisions people have to make so I don't think the government has a role until you can have a firm basis to define personhood.

And if that's the standard for abortions, then it means a lot more government regulation has to go with it

[BadLib]

Well, except for that little difference that the RKBA is specifically mentioned in the Bill of Rights where that right "shall not be infringed".

I just looked at the Constitution and didn't see a similar right to abortion explicitly mentioned - although perhaps I can't see it because it's hidden three-quarters of the way past the Ninth Amendment and one-quarter of the way before the Tenth Amendment - the "Hogwarts Amendment" visible only to the Wizards of the Supreme Court.

[Ashland]

Yes, actually the whole incorporation doctrine was a mistake?

[Bob from Ohio]

"court will have so little legitimacy left"

Only liberals can bestow legitimacy, I guess.

The court will in fact regain the legitimacy it threw away in Roe. Roe is the case that really super politicized the court.

[Randal]

I don't think so and here's why. If the court can only be "legitimate" in the eyes of one political party at a time, then it's obviously political. It obviously isn't doing what it's supposed to be doing, which is acting as a neutral arbiter. Everyone can see that. I'm not one to think that the right is full of stupid people who can't figure that out.

Put another way, the right has been delegitimizing the court for 50 years because of this issue, and it finally paid off. That's not going to undo the last 50 years. Two wrongs don't make right. Now they'll view the court as having made two political decisions instead of just one. And it'll be the left's turn to actively delegitimize the court until it gets _its_ way.

So although the right may start _liking_ the court more after it overturns Roe, I doubt they'll believe it's any more legitimate as a neutral decision-maker.

[Bob from Ohio]

"it's obviously political"

Only since John Jay was chief justice.

[Randal]

I mean, of course. At a high level, the stare decisis stuff is all theater. It's like scotus religion... some people just need to believe in it. But it's pretty transparent.

So the real question is, now that everyone's openly admitting that the court is just another legislature (except Kagan and Roberts and maybe Barrett), what happens?

Maybe we move to direct elections of justices? That's what we did when the same thing happened to the Senate.

[Randal]

Anyway, this is what Sotomayor's talking about. After this, it won't be possible for anyone to buy into the scotus religion anymore. The institution as we know it (or at least as we've become accustomed to pretending to know it) will be dead.

[Brett Bellmore]

That's not really true. It could be that one party is just incapable of admitting it has lost for legitimate reasons. Perhaps both parties!

Whether the court is political is a question about the court, not the political parties.

[IPLawyer]

Blackman admitted as much when he said he'd give up his completely made-up principles that he only ever had because he thought they'd serve the goal of making abortions illegal

[Robert Efroymson]

Not “no matter what she says”. If she concurs, on the grounds it was wrongly decided to begin with, and an unwarranted intrusion into decisions properly left to the States, I think Sotomayor could go a long way to making the reversal of Roe into a legal, not a political, matter.

[Randal]

Not really. Ya'll are clinging to this fiction that Roe was "wrongly decided." Most people think it was correctly decided.

Even if the decision were unanimous, overturning precedent always hurts the court's legitimacy, because it requires the justices to do what they're always telling us not to do: disobey an opinion of the court. If Casey was the immutable rule for 30 years and now it's not, _somebody_ majorly fucked up.

Much better for the stature of the court would be for the justices to respect stare decisis.

[Zennyfan]

Look up the actual definition of court-packing, not the definition the left is pushing. Also, SCOTUS acted as an unelected national legislative in deciding Roe, usurping state legislatures’ lawmaking powers.

[eyesay]

Zennyfan: FDR's plan to increase the size of the Supreme Court was termed "Court packing", but that doesn't create a definition. By extension, court packing could reasonably be defined as "political maneuvers in violation of long-standing practice designed to pack the Supreme Court with political allies". If the Senate Judiciary Committee had held hearings on Merrick Garland, and this had been followed by Senate hearings and an up-or-down vote, then regardless of the outcome of that vote, we wouldn't be calling the Grassley-McConnell denial-of-service attack "packing the court."

[Toranth]

ALL Supreme Court nominations are designed to 'pack' the court with political allies - by filling existing vacancies.
Equally, refusing to vote on a nomination is actually the most common way to refuse to seat a SCOTUS nomination, so it can hardly be considered "in violation of long-standing practice".

As used for decades, "packing the court" has been in reference to create new seats in order to give one side a majority. That's how it was used in discussing US politics, or foreign politics - Venezuela, for example.
The new insistence by the Leftists that filling preexisting vacancies according to party control of the Senate is somehow "court-packing" or "denial of service" is silly and ahistorical.

[Randal]

What other scotus nominations were denied a vote? Let's not count nominations that were withdrawn, like poor Harriet Miers.

[WPHDM]

NATIONAL JUDGE-MADE ABORTION POLICY: DEMOCRACY IN AMERICA, HUH ?

Why is it so hard for folks on all sides of the debate to acknowledge the obvious?

That the Supreme Court is also the supreme council on national abortion policy in the USA. Has been for long. So what's so wrong for new crop of members to ditch an old policy? Legislatuive policymaking bodies do it all the time. And why should a high court claim infallibility? To err is human, to correct error may not be devine, but is even better.

Does it really need a reincarnation of de Toqueville to the remove the collective blinders?

[Randal]

It's certainly a way to go. Sotomayor thinks it's a stinky route, but she could be wrong.

Once we're done pretending the justices are apolitical and infallible, though, it's fair to expect some reforms. For example, policymaking bodies are expected to be representative. Maybe the people in each circuit get to elect one justicelator?

[legalizemushrooms]

Personally, I’d like to see roe overturned so there might finally be some resistance to right wing fanaticisms in the swing states.

[AmosArch]

'rightwing fanaticisms'= believing in 40 genders instead of 47

[Frank Drackman]

fewer Afro-Amurican's nipped in the bud?(or "sucked from the womb") got it!

[Bob from Ohio]

"I’d like to see roe overturned so there might finally be some resistance to right wing fanaticisms in the swing states."

Ok, your trade is accepted.

Libs think that pro-lifers fear the political results of reversing Roe. We don't.

[Sebastian Cremmington]

Republicans than outlaw abortion in cases of rape and the Plan B pill will lose suburban moms faster than Terry McCullough.

[Rev. Arthur L. Kirkland]

" Libs think that pro-lifers fear the political results of reversing Roe. We don't. "

Is that because even downscale clingers recognize that they are destined to be stomped into irrelevance in the culture war?

Disaffected right-wing losers are among my favorite casualties.

[Rev. Arthur L. Kirkland]

Or is it because you are gullible enough to believe that the Lord God Of The Bible will smite your enemies, or something?

[FourteenFour]

So have we had a Justice as openly partizan as her? Is it common for one Justice to criticize their colleagues so brazenly during proceedings?

Yes I am asking as I don't follow all the courts goings on frequently but her name pops up usually when someone is throwing shade

[Armchair Lawyer]

The issue is, Sotomayor views the court and the judicial profession as a means to institute the "correct" policies, rather than interpret the law as written.

[Sarcastr0]

Weird, I thought we should trust the Justices when it comes to rights a couple of threads ago!

[Rev. Arthur L. Kirkland]

" rather than interpret the law as written "

. . . or enforce and impose the dogma of a discredited church?

[Mark Leen]

She should also not be so quick to overturn or support overturning precedent she does not like.

[Suudy]

Let's not pretend Blackman is any different than others on the left. If challenges to Heller, Citizens United, et al came up before the court, those same people here decrying his view would throw out stare decisis as fast as they are to cling to it here.

[Sarcastr0]

I don't think that's true. Sotomayor, perhaps. But I'm not at all sure about the others.

[Nuke the cane]

Prof Blackmun is just amplifying Justice Sotomayor's quotable line. Does he think before he posts?

[dwb68]

Sotomayor must have known that the livestream would make that line would go viral.

Makes me wonder if live audio will survive until next year. This mostly validates concerns about live audio/video encouraging grandstanding.

[dwb68]

And now that I think about it, when Breyer was imploring people to read Casey, at the time I thought it was for the live audience as well. Everyone in the courtroom had read Casey.

[The Turtle Dove]

If the Federal Constitution wasn't a political act, the events of the last two centuries or so are a mite perplexing. And a sincere apology is due Privy Council for attacking Canada.

The reading of the Federal Constitution, because of the political act of the Federal Constitution, should not be a political act, but you'd hardly know that from yesterday's arguments.

Petitioner: "Overrule the wrong decision."
CJ: "Might there be a legal reason...."
Petitioner: "Overrule the wrong decision. And I'm a general."
Kagan, J.: (Thoughtful stare.)
Respondent: "Don't overrule the decision."
CJ: "Might there be...."
SG: "Hi, there's been an election."

Mr. D.

[DavidS-T]

"Of course, during the hearings themselves Republican nominees dissemble about this because this goal is extremely unpopular.

"Justice Sotomayor observed that a minority faction installing a hyper-partisan 6-3 majority in part for the precise purpose of eliminating a fundamental right countless people rely on will look bad. And over at “libertarian” [LOL] Reason, they are not happy about it. (Sotomayor’s comments, I mean — all the use of state coercion to force women to carry pregnancies to term is making them feel tingly inside)"

"The thing is that Sotomayor’s phrase it catching on because it is 100% accurate. Republicans want the fruits of a political takeover of the Court while maintaining that it is not a political institution and the pending overruling of Roe v. Wade on a straight party-line vote is not the simple product of raw partisan politics. Sorry, but that’s not how anything should work. Sotomayor telling the unassailable truth isn’t the problem." https://www.lawyersgunsmoneyblog.com/2021/12/i-wouldnt-say-self-fulfilling

[WPHDM]

ERROR CORRECTION

Roe was a political act (a judicial policymaking endeavor) in the first instance, so it doesn't matter whether overturning this precedent is characterized as (also) political or not.

Doing so will correct the original error of judicially implanting a right to abortion into the U.S. Constitution. Short of the Supremes acknowledging fetal personhood under the 14th Amendment, the political questions concerning abortion regulation and proscription will then be handled at the state level, by the political and popularly accountable institutions. Neither side will achieve complete victory or vanquish the other, at least not in the short run (considering the possiblity of national policy limiting state policymaking discretion through an Act of Congress).

[Rev. Arthur L. Kirkland]

If Justice Sotomayor is describing colleagues as partisan, is that worse than the justices who claim to be nonpartisan and whine about widespread perceptions to the contrary?

[ScottK]

The Professor of Gaslighting from a grade Z law school strikes again. What a piece.

[Ashland]

What exactly is the benefit of deligitimizing the Court? What are you replacing it with that will be better? Recall " A Man for all Seasons" where More asks his son-n-law where he will hide when he has cut down all the trees in England to get after the Devil and the Devil turns on him.

[Martinned]

How about a court that isn't as partisan, for example because it is appointed in a way that is less partisan?

[Ashland]

And how is that going to happen?

[ReaderY]

I mistakenly wrote a comment intended for this post on another post, but it’s worth repeating here.

I think it is both wrong and unbecoming of a law professor to bait a Supreme Court Justice in this manner. Justice Sotomeyor is entitled to be upset that a precedent dear to her heart, and one she had regarded as settled, is being challenged. And she has a perfectly valid point. If the Supreme Court gets in the habit of reversing itself whenever a change of justices shifts votes from 5-4 to 4-5, and if it flip flops frequently as changes in administration result in appointing Justices of different ideologies, then it loses its ability to uphold even the most basic individual rights. Without some institutional stability, without some respect for history, a President can simply appoint hacks and cronies willing to do whatever the President wants, and nobody’s rights will be safe.

This is a reasonable critique that needs to be met with reasoned argument, not ad-hominem baiting.

What Professor Blackman is doing here is unbecoming of a law professor.

[Sarcastr0]

Wouldn't be the first time.

[Ed Grinberg]

What Professor Blackman is doing here is unbecoming of a law professor.

Is what Sonia Sotomayor did unbecoming of a Supreme Court justice? If so, shouldn't someone point it out?!

[Sarcastr0]

No, it's not.

Asking if an opinion will come off as political is not novel since at least Baker v. Carr, and her rhetoric is well below what you read in published opinions.

[WPHDM]

UNBECOMING

Agreed. Someone should point it out, and Law Profs are well-positioned to do so. Few have the guts, though. And the word choice "putrid" in response to "stench" would seem semantically commensurate.

Also, Supremes are a more select group than the pool of Law Profs from which they are drawn, so the standards of propriety and decorum should arguably be even higher for the supreme selection. That said, dissents should be vigorous on the strenght of the arguments to keep the majority intellectually honest, or more honest that they might otherwise be. Metaphors and off-color language don't make for reasoned argument. Nor ad-hominems and ad-feminams, as the case might be. Appeals to emotions.

[WPHDM]

Re: "appoint hacks and cronies willing to do whatever the President wants."

GOVT 101: Senate gets to weigh in with yes or no. Appointees serve for life, can't be controlled by the Executive once they are seated.

[LawTalkingGuy]

“Justice Sotomayor cast a putrid, self-fulfilling prophecy.”

Merits aside, you are a really bad writer.

[Randal]

In what sense do you suppose prophecies are cast?

Is it like casting a fishing pole, performing some gesture to activate the prophecy?

Or is the prophecy cast like a sword is cast, forging it into its useful form?

Or is she casting it as a spell, do you think?