Sotomayor Is the 21st Century Roger Taney

The U.S. Supreme Court on December 10 handed down its much-awaited opinion in Whole Women’s Health v. Jackson. I’ll bottom-line the result as simply as possible.

The court concluded that Texas abortion providers may maintain a pre-enforcement challenge to the law at issue, S.B. 8, but only as against state licensing board officials, not other state officials such as the attorney general, judges, or court clerks. The decision to allow suit against the licensing officials was 8-1 (Justice Clarence Thomas alone would have directed the district court to dismiss the suit as against all defendants). The decision to preclude suit against the attorney general and court clerks was 5-4 (Chief Justice John G. Roberts and the three Democratic appointees were in the minority and would have allowed pre-enforcement challenges to proceed against the attorney general and court clerks).

I say all that just for context; the technical dimension of the opinion has been picked over thoroughly by legal academics and commentators since it was released. On that front, I don’t have much, if anything, to add.

Instead I want to focus on an aspect of the case that has received far less attention than it should have : a portion of Justice Sotomayor’s partial dissent.

In Justice Sotomayor’s view, S.B. 8

is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed. Lest the parallel be lost on the Court, analogous sentiments were expressed in this case’s companion: ‘The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.’

The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished. . . . [Citations omitted.]

It’s important to note that Justice Sotomayor directly equates a law that has been duly enacted by Texas’ legislature for the purpose of protecting the unborn within the state’s border from lethal violence with the worldview and policy preferences of South Carolina Senator Calhoun, a man who openly and explicitly defended slavery as a “positive good” on the floor of the United States Senate. Simply describing each side clearly puts the lie to Justice Sotomayor’s sophistry; on the merits, her comparison fails utterly.

Playing legal hardball to prevent the slaughter of the unborn could not be more different than advocating for the continuation and expansion, not to mention societal approval, of chattel slavery, a monstrous deprivation of the liberty of some men for the benefit of others, even though all are “created equal.” That Justice Sotmayor and her colleagues, Justices Stephen G. Breyer and Elena Kagan, cannot see that is a testament to how warped their moral compasses really are.

It’s good to protect babies; it’s bad to enslave people. Don’t trust everything you read in the U.S. Reports, folks.

But Justice Sotomayor’s comparison also fails even when we drop down a level from the merits to assess the legal reasoning.

The Supremacy Clause (Article VI, paragraph 2) provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . .”

Notice what’s not there: Supreme Court opinions.

Frankly, I’m surprised that a good liberal like Justice Sotomayor wrote that “[t]he Nation fought a Civil War over” whether the court’s interpretations of the Constitution in its opinions are equivalent to the Constitution itself, the supreme law of the land. After all, the Civil War was definitely primarily about slavery. The Lincoln-Douglas debates made that abundantly clear, as does common sense.

But more than that, Justice Sotomayor, perhaps unwittingly, aligned herself with Chief Justice Taney’s wicked 1857 opinion in Dred Scott v. Sanford. There, the court purported unilaterally to settle national policy on slavery in one fell swoop, mangling the Declaration of Independence in the process, by holding that blacks were not and could never be citizens of the United States. The “Sotomayor-3” would do exactly that for abortion, and they are rightly—finally—facing pushback.

In a sense, then, the Civil War was about the court. President Abraham Lincoln strongly attacked the underlying logic of Dred Scott in his First Inaugural Address:

the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Seen in this light, the allusion to Calhounism that Justice Sotomayor makes is useful—but not at all for the reasons that she seems to think it is. It’s not always immoral and imprudent to challenge the Court’s decisions; after all, sometimes they really are just that heinous, and a Lincolnian resistance to them and their pernicious logic and reach is called for.

Justice Sotomayor’s invocation of this dark time in American history exposes the court’s liberals (and apparently also the chief justice) for what they are: judicial supremacists—tyrants. Jackson has made it clear, if you didn’t already know: that quartet is perfectly content to rule us without our consent. And that should seriously trouble us all.

The Court can’t save us; that’s not its role. But it can assuredly be part of our decline and doom. Let’s not let it be.

About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

Photo: Win McNamee/Getty Images

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