Jonathan Turley:
“…In Wednesday’s Supreme Court oral arguments in Dobbs v. Jackson Women’s Health Organization, Justice Sonia Sotomayor got a whiff of something she did not like. She said many abortion opponents, including the sponsors of the Mississippi abortion law at issue, hoped her three new colleagues would allow for the reversal or reduction of Roe v. Wade. With Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett listening, she asked, “Will this institution survive the stench” created from such political machinations — and then answered: “I don’t see how it is possible.”
Of course, when justices begin to declare their disgust at the very thought of overturning precedent, there is another detectable scent in the courtroom. Indeed, it felt like a scene from Tennessee Williams’s play, “Cat on a Hot Tin Roof.” The only thing missing was the play’s central character, “Big Daddy” Pollitt, asking: “What’s that smell in this room? … Didn’t you notice a powerful and obnoxious odor of mendacity in this room? There ain’t nothin’ more powerful than the odor of mendacity.”
Justices Sotomayor and Stephen Breyer insisted that overturning Roe in whole or in part would bring ruin upon the court by abandoning the principle of stare decisis, or the respect for precedent. Yet neither showed the same unflagging adherence to precedent when they sought to overturn conservative doctrines. Notably, Sotomayor pointed out another allegedly “political” decision in the court’s recognition of an individual right to bear arms; she and Breyer both indicated a willingness to overturn the ruling in that case, District of Columbia v. Heller. After that decision, both continued to dissent and argue that “the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.” Indeed, they may reaffirm that position this term.
Sotomayor’s nose for judicial politics was also less sensitive when she recently called upon students to campaign against abortion laws — a major departure from the court’s apolitical traditions. After telling the students that “You know, I can’t change Texas’s 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.” She added: “I am pointing out to that when I shouldn’t because they tell me I shouldn’t.” That was more than a whiff of politics, but the same legal commentators applauding her “stench” comment were silent in condemning her direct call for political action on abortion. There also were few objections to the stench of politics when the late Justice Ruth Bader Ginsburg publicly opposed a presidential candidate…”