Nevertheless, Sonia Persisted
Justice Sotomayor has a history of acting out to get her way.
Justice Sonia Sotomayor wagged a finger at her colleagues on the Supreme Court last Tuesday, warning them that they must be careful about overruling precedents. The Court, she explained, must exercise “a great deal of caution because people rely on the stability of the law in believing and having faith that the judicial system is not prone to politics.”
It is true, generally, that public perception of institutions can affect their legitimacy, and that changes in public perception can have serious consequences. But the federal court system is not an institution where the faith of the populace at large is particularly consequential.
When people lose faith in law enforcement, the effect on police officers, neighborhoods, and criminals can be quite serious. People may refuse to cooperate with the police or be hostile toward them. Vigilantism may increase. It is hard to see the same potential for severe consequences if average people stop “believing and having faith” in the United States Supreme Court.
Of course, people should believe that the laws are being applied fairly and even-handedly. But judges are not elected officials, and if polling shows low favorability ratings for the Supreme Court, that shouldn’t really affect the republic; judges ought not to be politically motivated, nor politically accountable. Ideally, the American people should be confident that judges are doing their faithful, boring lawyers’ work, and shouldn’t be thinking much about the judiciary at all.
Justice Sotomayor is right that the American people should not have the impression that “the judicial system is prone to politics.” But the fact that she can try to give this lecture in the wake of Dobbs—as if the current conservative majority is suddenly politicizing the previously fair, impartial work of the Supreme Court—is ridiculous. There is no intellectually serious way to argue that the Supreme Court was acting non-politically, respecting precedent, and maintaining the faith of the American people until President Trump appointed the conservative majority that overruled Roe. But this is Sotomayor, so one can hardly be surprised.
Would Sotomayor have scolded the nine Justices on the Court in Brown v. Board of Education of Topeka in 1954 who held that separate but equal facilities for racial minorities is inherently unequal and thus violates the Fourteenth Amendment? After all, this ruling eliminated nearly a century of Jim Crow segregation of schools and centuries of treating black Americans as non-citizens or lesser citizens. The Court in Brown was certainly not exercising “a great deal of caution” to respect precedent and maintain the people’s faith that the Court was not acting politically.
To say that recent Supreme Court decisions such as Dobbs and Bruen are ushering in an era unique in the Court’s willingness to make politically controversial rulings is simply wrong. It doesn’t take a scholar to look back over the last sixty years and see that the court has been severely politicized for decades—by the left, not the right. In 1962, Engle v. Vitale outlawed mandatory school prayer. In 1965, Griswold v. Connecticut held that there was a constitutional right to privacy that forbid a law banning contraception. In 1973, Roe v. Wade discovered a constitutional right to abortion. In 2015, Obergefell v. Hodges found a constitutional right to same-sex marriage.
Before the Court decided each of these cases, our nation had a long and consistent history of prayer in schools, laws banning contraception and abortion, and a traditional definition of marriage as the union of one man and one woman. Sotomayor signed onto the majority opinion in Obergefell, and she does not seem to have had any scruples about doing away with a precedent concerning the definition of marriage that has basically existed in every society throughout all of human history.
It is worth noting that the current conservative majority on the Court is not simply doing the right-wing version of what the progressive Supreme Court has done for decades. The current Court is making principled reversals of bad political decisions. Dobbs is not an activist political decision to enact a pro-life regime; it is the reversal of a horribly activist and constitutionally baseless decision in Roe v. Wade forty-nine years earlier. Remedying activist error is not itself activist or erroneous.
Why is Sotomayor speaking like this? The most charitable take would be that she is so steeped in her liberal worldview that she actually thinks left-wing activist judicial decisions are legally sound, and that the current conservative majority is masking their conservative political activism behind legal pretexts. But I don’t think that is the most likely take.
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As Helen Andrews insightfully explains at length in her chapter on Sotomayor in Boomers, Sotomayor learned early in her life “that bullying would yield results, that she would never pay a price for acting out; on the contrary, that she would be rewarded.” Sotomayor sent a formal complaint to a federal agency while an undergraduate at Princeton demanding the university hire more minorities: it worked. Sotomayor circulated a “blistering draft dissent” in the 2013 affirmative action case Fisher v. University of Texas that made Justice Kennedy change his vote. Sotomayor “learned early in life that something about her gave her the power to make authority figures hop.”
When we look at a speech like what she gave last Tuesday, we should assume that this is more of the same. Sotomayor knows the outcome she wants, which is preventing progressive precedents from being overruled. She will boldly and confidently say what she thinks will accomplish that outcome, including trying to bully her colleagues on the Court.
Thankfully, we have a conservative majority with enough backbone to resist being bullied. In the meantime, the people should understand that the current Supreme Court is correcting activist decisions, not politicizing the Court. If looking at cases such as Dobbs and Bruen causes the American people to lose faith in the legitimacy of the Supreme Court, the real problem that needs to be corrected is not the Court itself, but the way media outlets, politicians, and scolds like Sotomayor inaccurately portray the Court’s work.