The ‘stench’ of politicization: Sonia Sotomayor’s supreme court warning
Oral
arguments over the Mississippi abortion case this week showed the threat to Roe
v Wade from an increasingly politicized court
Ed
Pilkington
Sat 4 Dec
2021 02.00 EST
https://www.theguardian.com/us-news/2021/dec/04/us-supreme-courrt-sonia-sotomayor-abortion
About 11
minutes into this week’s hearing on abortion rights at the US supreme court,
the floor was taken by Sonia Sotomayor,
one of the three beleaguered liberal-leaning justices left on the court after
its sharp rightward shift under Donald Trump.
Sotomayor began by
noting that in the past 30 years no fewer than 15 justices of all political
backgrounds had supported the right to an abortion up to the point of fetal
viability. Only four had objected.
Now after
so many years of relative consensus, the legality of abortion enshrined in the
landmark 1973 ruling Roe v Wade and reaffirmed in 1992 in Planned Parenthood
v Casey was suddenly on the line.
Politicians
in Mississippi, Sotomayor remarked (while leaving it unsaid that they were
rightwing Republicans), had devised new legislation to ban abortions after just
15 weeks of pregnancy. By these politicians’ own admission, their bills were
targeted specifically at the three new justices on the supreme court (all
appointed by Trump, though she left that unspoken too).
Then she
went in for the kill.
She
addressed the danger posed by the court’s sudden and apparently politically
motivated change of heart not just to abortion rights but to the rule of law
itself.
If the
nation’s highest court, with its newly constituted Trumpian majority, were to
go along with the ploy set for it by Mississippi and throw out half a century
of settled law affirming a woman’s right to choose, then what would happen to
the court’s legitimacy as a place in American democracy that rises above the
cut and thrust of grubby partisanship?
“Will this
institution survive the stench that this creates in the public perception that
the constitution and its reading are just political acts?” she said. “I don’t
see how it is possible.”
Stench.
The word ricocheted off the august walls of the courtroom like a bullet.
“It was a
shocking moment,” said Sherrilyn Ifill, director-counsel of the NAACP Legal Defense Fund. “An unadorned
recognition of the legitimacy issues that are clearly preoccupying a number of
the justices.”
For
Stephen Vladeck, a professor of constitutional law at the University of Texas
at Austin, the takeaway of this week’s hearing was not how many justices were
preoccupied with the reputational damage facing an increasingly politicised
court, but how few. “To me, the single most distressing feature of Justice
Sotomayor’s arguments was how little anyone else seemed to care,” he told the
Guardian.
Vladeck
said he was dismayed by the “casualness with which so many of the justices
seemed to be taking an issue that is so central to so many women. A ruling that
gets rid of Roe would be enormously damaging in the eyes of millions of
Americans, yet some of the conservative justices don’t seem to think that’s
important.”
The
perception of nonchalance towards the integrity of the court among the six
conservative justices now in the majority is striking. In advance of last
week’s supercharged hearing, several of those same justices bent over backwards
to try to convince the American people that they are neutral servants of the
constitution.
The three
justices appointed by Trump have been especially keen to portray themselves as
having not a partisan bone in their body. Neil Gorsuch, Trump’s first of the
three appointments, insisted in September 2019 that
it was “rubbish” to imply that the justices were “like politicians with robes”.
More
recently Amy Coney Barrett, another of Trump’s triumvirate of appointees, told an audience in
Kentucky that the supreme court was not “comprised of a bunch of partisan
hacks”.
But she
was speaking at the McConnell Center at the University of Louisville and was
introduced at the event by the politician after whom the venue is named – Mitch
McConnell, the top Republican in the US Senate. It was his shenanigans, blocking Merrick
Garland’s confirmation to the court in 2016 on grounds that it was in an
election year then rushing through Barrett’s
confirmation much closer to election day in 2020, that gave Trump his three
picks.
But it is
the third of Trump’s supreme court proteges, Brett Kavanaugh, whose position is
perhaps most glaring. During his confirmation process in 2018 Kavanaugh went to
great lengths to underline his respect for the decisions made by his
predecessors on the court, and for the legal doctrine known as stare decisis,
which requires justices to honor past rulings in all but exceptional cases.
Kavanaugh assured senators worried
about his stance on abortion that he saw Roe v Wade as “settled law”.
He went
even further in his conversations with Susan Collins, the relatively moderate
Republican senator from Maine on whose vote Kavanaugh depended. When she announced her
decision to back him for the supreme court, she revealed what he had said to
her during private conversations.
“There has
been considerable … concern that Judge Kavanaugh would seek to overturn Roe v
Wade,” she said. “Protecting this right is important to me. As Judge Kavanaugh
asserted to me, a long-established precedent is not something to be trimmed,
narrowed, discarded or overlooked.”
But when
it came round to Kavanaugh’s turn to speak in this week’s debate he read out a
long list of supreme court cases in which prior precedents had been overturned.
He left observers with the clear impression that he was preparing to do
precisely what he promised Collins and her fellow senators that he would not do
– run roughshod over a pillar of constitutional law.
The
pointed interventions of the Trump justices and their conservative peers in
this week’s hearing have led most observers convinced that abortion rights in
the US are likely to be grossly restricted or
abolished outright when the court rules next June. That would
be uncannily as Trump himself had predicted.
In a
televised debate during the 2016 presidential race, Trump was asked by the Fox
News host Chris Wallace whether he wanted the court, including any justices he
might appoint as president, to overturn the right to an abortion. He replied:
“I am pro-life, and I will be appointing pro-life judges. I would think that
that will go back to the individual states.”
Trump did
go on to appoint anti-abortion judges, and they are now poised to send control
back to individual states, 21 of which currently have
laws in place that would effectively ban abortions overnight
were Roe v Wade overturned.
Vladeck
fears that the vast and growing disconnect between what the conservative
justices say they are doing – impartially and faithfully upholding the law of
the land, and what they are actually doing – playing along with the
machinations of politicians in states like Mississippi, bodes very ill for the
legitimacy of the court.
In the
long run it could also harm America’s future as a country of laws.
“Public perception matters,” he said. “The more the court appears to be guided by contemporary partisan preferences as opposed to permanent legal principles, the harder it will be for millions of Americans on the wrong side of these cases to understand why they should be bound by them.”
Connecting the Dots:
Sonia Sotomayor is
a justice for the U.S. Supreme Court and was a member of the Belizean Grove.
Belizean_Grove is the equivalent to the male-only
social group, the Bohemian Club.
Henrietta
Holsman Fore is a member of the Belizean
Grove and a trustee at the Aspen Institute (think tank).
Henry
A. Kissinger is a member of the Bohemian
Club and was a lifetime trustee
at the Aspen Institute (think tank).
Foundation to Promote Open Society was a funder for the Aspen Institute (think tank) and the NAACP Legal Defense & Educational Fund.
George Soros is the chairman for the Foundation
to Promote Open Society and the
founder & chairman for the Open Society
Foundations.
Open Society Foundations was a funder for the Planned Parenthood Federation of America.
Sherrilyn Ifill was the chair, U.S. programs for the Open Society Foundations, is a global board member for the Open Society Foundations, the president & director-counsel for the NAACP Legal Defense & Educational Fund.
Resources: Past Research
FIX IS IN: PBS Moderators Ignore Clinton
Scandals (Past Research on Sherrilyn Ifill)
FRIDAY,
FEBRUARY 12, 2016
https://thesteadydrip.blogspot.com/2016/02/fix-is-in-pbs-moderators-ignore-clinton.html
Sotomayor Delays Obamacare's Birth Control
Mandate (Past Research on Sonia Sotomayor)
WEDNESDAY,
JANUARY 1, 2014
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