Supreme Court Justice Sonia Sotomayor on Wednesday asserted that the threat to the court’s legitimacy comes not from its jurisprudence in favor of abortion but from challenges to it. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked. “I don’t see how it is possible.”
Sotomayor is oblivious to the stench that already exists, emanating from Roe v. Wade, a ruling that invented out of thin air a constitutional right to abortion. That ruling has led to the killing of tens of millions of unborn children.
Reporters ignored that stench as they babbled excitedly over Sotomayor’s rebuttal to Mississippi Solicitor General Scott Stewart, who argued for the constitutionality of restrictions on abortion in his state. In fact, the correspondent for MSNBC standing outside the Supreme Court very primly announced that the network would not show any of the pro-life signs depicting the grisliness of abortion.
MSNBC, instead, assembled an assortment of abortion advocates to decry their “anti-choice” opponents and discuss every issue except the most salient one: the injustice done to the unborn child. Many of these lawyers and activists, of course, normally argue for “democracy.” But on this issue, they are starkly undemocratic, insisting that the people within the states should have no right to pass meaningful pro-life laws.
The incoherent rhetoric of abortion advocates was on open display Wednesday. Some of them fulminated against the Supreme Court, saying it would provoke a “revolution” by upholding Mississippi’s law. But others warned that if the court upholds it numerous states will enact pro-life laws. In other words, abortion advocates couldn’t decide if a ruling favorable to the Mississippi electorate would be popular or unpopular across the country.
Nor could abortion advocates get their rhetoric straight on the dangers of overturning legal precedents, given that most of their favorite Supreme Court rulings involve precisely that. Roe v. Wade itself was a blatant repudiation of legal precedent. For almost two centuries, the constitutionality of pro-life laws was taken for granted. Then suddenly in the 1970s, a handful of Supreme Court justices discovered a right to abortion in the Constitution. As the late Supreme Court Justice Antonin Scalia noted, that ruling was pure political mischief. In his dissent in Planned Parenthood v. Casey, he observed,
There is a poignant aspect to today’s opinion [upholding Roe v. Wade]. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation, and of our Court. Quite to the contrary, by 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. 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.
The stench of abortion politics has wafted over the Supreme Court for decades. For Sotomayor to cast defenders of Roe v. Wade as apolitical is absurd. Her entire line of questioning smacked of noxious politics. After Scott Stewart brought up studies showing that the unborn child feels pain, she breezily rejected his statement.
“Virtually every state defines a brain death as death,” she said. “Yet the literature is filled [with examples of the brain dead] responding to stimuli,” she said. Just because the “fetus” responds to similar stimuli, she argued, doesn’t prove “pain or that there’s consciousness.”
Sotomayor embodies the very politics that she claims to deplore. She relies on a theory of jurisprudence — the “living constitution” theory — that is nothing more than the application of the liberal politics of the day to the court’s rulings. The court’s erosion of legitimacy traces to the judicial tyranny that that mindset unleashed. It took a range of democratic choices out of the hands of the people and placed them in the hands of nine justices. Nothing would do more to dispel that despotic stench than if the court finally overturned Roe v. Wade.
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