The ‘stench’ of politicization: Sonia Sotomayor’s supreme court warning

Ed Pilkington (The Guardian) underlines Justice Sonia Sotomayor’s strong remarks on the politicization of the U.S. Supreme Court. He writes, “Oral arguments over the Mississippi abortion case this week showed the threat to Roe v Wade from an increasingly politicized court.”

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”. [. . .]

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. [. . .]

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.”

For full article, see https://www.theguardian.com/us-news/2021/dec/04/us-supreme-courrt-sonia-sotomayor-abortion

Also read (in Spanish) https://aldia.microjuris.com/2021/12/07/ante-la-ausencia-de-ginsburg-gana-prominencia-la-voz-de-sotomayor-en-el-supremo/

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