Nevertheless, Sonia PersistedJustice 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.”
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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.
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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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Source:
https://www.theamericanconservative.com/nevertheless-sonia-persisted/
