DANIEL VAUGHAN: Sotomayor’s pain could be America’s gain

It’s not every day that you get a Supreme Court justice laying out the fundamental distinctions between left and right jurisprudential decision-making. When they do, it’s essential to listen.

It’s not just about the basic faultlines on the court, though those exist. This point is about how people view the very role of the Supreme Court in American politics.

The justice in question is Sonia Sotomayor, who delivered a virtual speech to the American Bar Association devoted to “diversity.” The line everyone took away from the address was when Sotomayor told the audience, “There’s going to be a lot of disappointments in the law, a huge amount.”

Everyone read that line in the context of Sotomayor’s views on the issue of abortion. There was the recent Texas abortion law, which the Supreme Court allowed to continue. Sotomayor dissented in that situation. During the speech, she said, “As you study cases and look at outcomes you disagree with, it can get frustrating… Look at me, look at my dissents.”

Aside from her sour grapes pontificating, the point of the speech that genuinely shows the difference between liberal and conservative legal thought was about how to fix it. Sotomayor groused:

I can’t change Texas’s law, but you can. You can, and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like. But the point is, there are going to be a lot of things you don’t like.

Sotomayor told her audience that sometimes she couldn’t get an opinion to say what she wanted. Her point about them changing the law is almost a disappointed tone, telling people that she’s sorry they have to go to their government to get new legislation.

Sotomayor makes that point with a sad face, whereas I see that as the essential point of a limited judiciary. It’s not the job of a judge to legislate what she wants from the bench.

It is, however, the job of a populace to petition their government for changes in the law.

The late great Justice Antonin Scalia understood this better than anyone, especially on the topic of abortion. In his dissent for Planned Parenthood v. Casey, the case that saved the abortion right while agreeing the Roe v. Wade precedent was impossible to uphold, Scalia observed:

[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

Scalia understood what storing all political energy on one topic in Supreme Court would do: it would tear the institution apart. He closed that dissent by saying, “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

Scalia instinctively understood that keeping abortion regulations out of the hands of the people would cause more long-term division. The only way to release that energy would be to unleash that power in the only branches built to handle it: state legislatures.

Sotomayor mourns that she loses the power to wield her judicial pen over this issue, preventing the resolution of the abortion topic. But suppose the Supreme Court does the right thing here, which Sotomayor could be signaling, and strikes down both the Roe and Casey precedents, leaving the states and activists to fight it out. In that event, the Supreme Court will regain its standing and composure in society.

This point is what divides left and right. It wasn’t always this way. The late justice Ruth Bader Ginsberg agreed with Scalia on this point, saying in 2019, “At the time of Roe v. Wade, this issue was all over the state legislatures. Sometimes, the choice people won, sometimes they lost… So, the law was in a state of change. I think it would have been healthier for that change to have gone on.”

She was right about that point. We’d be in a much healthier place politically if abortion were a legislative issue fought in legislatures, with political consequences. Sotomayor doesn’t get this part; she wants the power to keep us in this unhealthy political state, without resolution, where we exist under her political preferences by force of judicial opinion. 

That’s the difference between the left and right on judicial preferences. The left is fine with a judge doing this, whereas the right tries to get the court back onto more stable ground and let legislatures fight these issues.

The ones risking the loss of judicial legitimacy are leftists seeking to push their agenda through judges. Hopefully, that time in judicial history is coming to a close.