Sotomayor, abortion, and “demosprudence”

This opinion piece in the Washington Post carries the title, “Sotomayor saw she couldn’t sway her colleagues. So she talked to us instead.” The article is by law professor Melissa Murray who clerked for Sotomayor at the appeals court level.

I don’t know whether either proposition in the title is accurate, but I can vouch for the second and third words of the second sentence. Sotomayor talked.

She talked and talked. She talked when counsel for the state of Mississippi tried to answer her questions. Counsel was lucky if he could get ten words out without Sotomayor interrupting him.

Sotomayor’s approach stood in marked contrast to the other eight Justices. Seven of them seemed (or at least pretended to be) interested in what the lawyers for both sides had to say. They were polite, though sometimes pointed. If I recall correctly, Justice Gorsuch even thanked counsel for answers, describing some of them as helpful.

Justice Breyer lectured at length, mostly about what Casey v. Planned Parenthood said about stare decisis. He seemed to be trying to sway a few of his less liberal colleagues. Breyer was tedious, but at least he didn’t repeatedly interrupt counsel.

With all that’s at stake in Dobbs, it’s not surprising that Sotomayor was amped up. However, her performance wasn’t abnormal for her. That, at least, is my impression based on the handful of Supreme Court oral arguments I listen to from start to finish each year.

It seems to me that Sotomayor often tries to dominate the questioning, which is unfortunate because she’s the Justice I least want to hear from. Not because she’s a leftist. Elana Kagan is too, but I always enjoy her questioning.

Kagan strikes me as one of the Court’s leading thinkers. Sotomayor comes across as its weakest. She’s not a hack — far from it — but she suffers by comparison to her colleagues.

Let’s return, though, to the thesis that Sotomayor was “talking to us.” Professor Murray says, “Sotomayor was suggesting that the court need not have the last word on abortion.”

I assume Murray wrote those words without intending irony. But the view that the Supreme Court not have the last word on abortion comes close to what the state of Mississippi was arguing — and to the position Justice Kavanaugh appeared to take in the portion of the argument that should worry Sotomayor, Murray, et al. the most.

Murray continues:

Less well-known than jurisprudence is what the law professors Lani Guinier and Gerald Torres have termed “demosprudence” — the idea that legal change does not flow exclusively from courts and other government actors, but may proceed from the mobilization of the people themselves. When Sotomayor switched gears and aimed her rhetoric at the public, she was planting the seeds for demosprudence, alerting the people to the imminent threat to abortion rights in the hopes that, hearing her alarm, we might mobilize. . . .

This could take many forms, such as enacting the congressional bill that would codify Roe’s protections, turning state legislatures blue so as to stanch the stream of increasingly restrictive abortion laws and building broader support for telemedicine and the distribution of pills that can induce abortion in a private setting.

Much of this passage comes very close to the position the conservative legal movement has taken on abortion jurisprudence for decades. Let the people, not nine judges, decide when, if ever, it’s lawful to terminate a pregnancy with an abortion.

As Justice Kavanaugh pointedly asked:

When you have those two interests [choice and life] at stake and both are important . . . why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?

Why, indeed? Here’s to “demosprudence.”

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