The U.S. Supreme Court begins its new term next week, which means all eyes have again returned to the justices’ marble palace at 1 First Street, N.E. This court term, unlike the last one, promises to be a blockbuster: The hot-button issues of abortion, gun rights, and potentially affirmative action will all be on the justices’ docket. By the end of this term, we should have a definitive answer as to just how “conservative” the putatively conservative, six to three Republican-nominated majority court actually is.
And just as all eyes have returned to the court, observers of all stripes have been presented with a timely reminder as to how the court’s progressives view their jobs: to wit, as unabashed liberal partisans. That reminder has now come courtesy of the current court’s most far-left justice, Sonia Sotomayor. It follows an entire career’s worth of similar comments from Justice Sotomayor’s former colleague, the late Justice Ruth Bader Ginsburg.
According to reporting from both CNN and the Washington Post, Sotomayor recently offered what can only be interpreted as a substantive public policy position on S.B. 8, Texas’ recent anti-abortion fetal heartbeat law that has garnered much national attention. That Sotomayor would now offer a forthright political opinion on the topic is hardly unexpected: She dissented from the court’s correct recent decision to deny Texas pro-abortion plaintiffs’ emergency request to enjoin any enforcement of S.B. 8, lambasting the law at the time as “flagrantly unconstitutional.”
Speaking at an American Bar Association event about diversity, the loose-lipped jurisprude allegedly said, according to CNN: “You know, I can’t change Texas’ law, but 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.” Perhaps then realizing in real time that she had overstepped, Sotomayor allegedly then tried to half-walk back her comment: “I am pointing out to that when I shouldn’t because they tell me I shouldn’t. But my point is that there are going to be a lot of things you don’t like.”
It is difficult, likely impossible, to interpret these comments as anything other than Sotomayor actively encouraging the ABA audience to work to alter or repeal S.B. 8. Under standard canons of judicial ethics and federal law (28 U.S.C. 455) itself, Sotomayor should now be forced to recuse herself from future S.B. 8 litigation at the Supreme Court. She almost assuredly will not do so, of course.
Indeed, similarly left-wing Ginsburg was infamous for making precisely these sort of comments. As but one example, during pending same-sex marriage litigation at the Supreme Court, she haughtily dismissed a Bloomberg interviewer’s question about the court possibly moving too quickly by constitutionalizing same-sex marriage under the Fourteenth Amendment. “I think it’s doubtful that (constitutionalized same-sex marriage) wouldn’t be accepted” by the whole country, Ginsburg said just a few months before she joined Justice Anthony Kennedy’s majority opinion constitutionalizing same-sex marriage in Obergefell v. Hodges. It is just as ludicrous to now expect erudite “impartiality” from Sotomayor on the Texas Heartbeat Act as it was to expect such impartiality from Ginsburg on same-sex marriage.
The legal Left’s long-standing “realist” approach to jurisprudence and judicial philosophy stands in marked contrast to the legal Right’s traditionally more wooden “formalist” approach. That approach can be encapsulated by a quip from the late Justice Antonin Scalia, who once wrote: “Long live formalism. It is what makes a government a government of laws and not of men.” In a similar vein, then-Judge John G. Roberts famously said at his 2005 confirmation hearing to be Supreme Court chief justice that the role of a judge is analogous to a baseball umpire whose “job” it is to “call balls and strikes.” (We may wonder whether the chief has since lived up to that standard.)
Sotomayor’s “gaffe” is yet another eye-opening insight into the legal Left’s view of the courts: that of transparently political institutions pliable to political (read: judicial) actors’ sheer force of will. The remedy, at this increasingly late hour of the American republic, is not for the legal Right to wholly abandon its more traditional, “formalist” fidelities to constitutional text, structure, and history, but rather to embrace a more holistic, morally imbued and substantive conception) of the relevant text, structure and history.
The time for an avowedly “neutral” legal positivism has long passed, if it was ever felicitous to begin with. The legal Right should not stoop to the legal Left’s level, but it must get comfortable with a jurisprudence unabashedly rooted in the morality and justice of the American founding and substantively oriented to reclaiming that morality and justice from those who seek to destroy it.
There are now foxes guarding the marble palace henhouse. Legal conservatives must wake up to that challenge, lest they be complicit in their own subjugation.