Justice Sonia Sotomayor wiggled a finger at her Supreme Court colleagues last Tuesday, warning them to be cautious about overruling precedents. She explained that the Court must be cautious because people depend on the stability and integrity of the law to believe and have faith that the judicial systems isn’t prone to politics.
It is generally true that public perceptions of institutions can influence their legitimacy. These perceptions can have serious consequences. The federal court system, however, is not an institution that is dependent on the faith of the public.
People can lose faith in law enforcement and it can have serious consequences for their neighborhoods, criminals, and police officers. Some people may not cooperate with police officers or may be hostile to them. Vigilantism could increase. It’s difficult to imagine the same severe consequences for average Americans if they stop “believing” and have faith in the United States Supreme Court.
People should have faith that laws are being applied fairly and fairly. Judges are not elected officials. If polling shows that the Supreme Court is not popular, it shouldn’t be a problem for the country. However, judges should not be politically motivated or held accountable. The American people should feel confident that the judges are performing their boring, faithful work and not think too much about the judiciary.
Justice Sotomayor is correct that the American people shouldn’t be under the impression that “the judiciary system is prone towards politics.” However, the fact that she is able to deliver this lecture after Dobbs -as though the current conservative majority suddenly politicizes the fair and impartial work of Supreme Court -is absurd. It is not possible to argue intellectually that the Supreme Court was acting in a non-political manner, respecting precedent and maintaining faith until President Trump appointed the conservative majority which overruled Roe. This is Sotomayor so it’s not surprising.
Would Sotomayor have called the nine Justices of the Court in Brown in 1954, who believed that separate but equal facilities are inherently unequal and violates the Fourteenth Amendment. This ruling ended nearly 100 years of Jim Crow school segregation and centuries of treating black Americans like non-citizens, or less citizens. In Brown, the Court did not exercise “a great deal caution” to preserve precedent and keep the people’s belief that it was not acting political.
It is wrong to say that recent Supreme Court decisions like Dobbs or Bruen signal a new era in the Court’s willingness and ability to make politically controversial rulings. One need only look at the past 60 years to see how the court has been heavily politicized over the decades. This is not just the case of the left but also the right. Engle banned mandatory school prayer in 1962. Griswold v. Connecticut ruled that contraception laws could not be prohibited under the Constitution. Roe established a constitutional right for abortion in 1973. Obergefell and Hodges established a constitutional right for same-sex marriage in 2015.
Our nation had a long, consistent history of prayer in schools and laws banning contraception. Before each case was decided by the Court, we also had a traditional definition for marriage, which is the union of one man with one woman. Sotomayor signed the majority opinion in Uppergefell and seems not to have been concerned about removing a precedent regarding the definition of marriage, which has essentially existed in all societies throughout human history.
It is important to note that the conservative majority of the Court does not just do the right-wing version what the progressive Supreme Court did for decades. The Court is principledly reversing bad political decisions. Dobbsisn’t an activist political decision to enact pro-life legislation; it is the reverse of a horribly activist decision in Roeforty nine years prior. It is not an activist act to correct an error made by activist.
Sotomayor is speaking in this manner? It is possible that Sotomayor is so ensconced in her liberal worldview, that she believes left-wing activist judicial cases are legal sound and that the current conservative majority is hiding their conservative political activism behind legal pretexts. This would be most charitable. However, I doubt that this is the best possible view.
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Helen Andrews, who has written a chapter on Sotomayor Boomers, explains that Sotomayor realized early in her life that bullying would result in results and that she would never have to pay a price for her actions. Instead, she would be rewarded. Sotomayor circulated “blistering draft disapproval” in the 2013 affirmative-action case Fisher. Sotomayor “learned very early in her life that something about herself gave her the ability to make authority figures jump.”
If we look at her speech last Tuesday, it is easy to assume that there will be more of the same. Sotomayor is clear about the outcome she wants. This prevents progressive precedents being overruled. She will confidently and boldly state her opinion, even if it means bullying her colleagues.
We are fortunate to have a conservative majority that has enough strength to resist bullying. The people need to understand that the Supreme Court’s current decisions are correcting activist decisions and not politicizing them. Considering cases like Dobbs and Bruen, Americans are losing faith in the Supreme Court’s legitimacy. The real problem isn’t the Court, but how politicians, media outlets, and scolds such as Sotomayor portray the Court.
