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

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.

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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.”