Justice Sonia Sotomayor: Defender of the People

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Justice Sonia Sotomayor: Defender of the People

Imani Gandy

Sonia Sotomayor has staked out a position on the Court as defender of the people—people of color, especially—in her fiery dissents.

The Supreme Court has decided that the constitutional right to an abortion doesn’t matter anymore, that 50 years’ worth of federal precedent should be abandoned. And there’s only one justice who is appropriately outraged about it: Sonia Sotomayor.

Twice over the last eight weeks, the Supreme Court was offered an opportunity to stop a patently unconstitutional law from taking effect and hurting millions of pregnant Texans. Twice it refused to do so.

The law, SB 8, is ridiculous. Republicans in Texas enacted a law that openly violates the Constitution and infringes on a constitutional right, and rather than try to defend their actions in Court, they crafted a sneaky mechanism so that the law could take effect and its architects could avoid a court challenge. SB 8 is a near-total ban on abortions at approximately six weeks’ gestation, which is before many people know they are pregnant. Such bans are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey—the Supreme Court’s own precedent.

Texas knows this. That’s why they crafted the bizarre bounty hunter enforcement mechanism: so they could keep their hands clean and make it difficult for anyone who wanted to challenge the law to find a court that would have the jurisdiction to do so.

The conservatives on the Court also know this. There is absolutely no legitimate reason that the Court has let this law take effect. And yet here we are heading into November, and abortion access has been functionally nonexistent in Texas for nearly two months.

And while the constitutional right to an abortion may go gently into that good night, Justice Sotomayor will not. She is stuck on the bench with a group of Federalist Society-captured justices who are trading the legitimacy of the Court for an opportunity to end a constitutional right that has existed for nearly 50 years while pretending that’s not what they are doing.

At the end of August—the day before SB 8 was set to take effect—providers asked the Supreme Court to block the law on an emergency basis in Whole Woman’s Health v. Jackson. Through its own inaction, the Supreme Court let the law take effect and then a day later offered up its reasoning, which amounted to little more than a series of shrug emojis. The liberals on the court dissented, joined by Chief Justice John Roberts, who is more than happy to gut abortion rights but just wants to make sure that the rules are followed when doing so.

But in a dissent joined by Justices Stephen Breyer and Elena Kagan, it was Sotomayor who, in a stinging rebuke, took the time to explain in detail the real world consequences of the Supreme Court’s failure to act:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.

She went on to note in palpable disgust, “the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”

Last week the Court was given another opportunity to do the only reasonable thing: block the law pursuant to an emergency request from the Biden administration. Again, the Court refused. (The administration had secured a preliminary injunction that blocked the law for a couple of days from U.S. District Judge Robert Pitman, but it was subsequently—and predictably—paused by the Fifth Circuit Court of Appeals.)

This request should have been a slam dunk. One of the purposes of a preliminary injunction is to maintain the status quo. In this case, the status quo is “no six week ban with an abortion bounty hunter provision in Texas.” But again, the Supreme Court did nothing to block it.

Sotomayor was furious, and this time not even Breyer and Kagan bothered to sign onto her scathing dissent:

For the second time, the Court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas. For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm…

Because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the Court’s refusal to stay administratively the Fifth Circuit’s order….

These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this Court now. Because of the Court’s failure to act today, that relief, if it comes, will be too late for many. Once again, I dissent.

“Once again, I dissent.” It’s the legal equivalent of “I’ve fucking had it.”

Her fury was likely underscored by the fact that the Fifth Circuit paused Pitman’s order in U.S. v. Texas on dubious grounds, relying on its rulings from the litigation in Whole Woman’s Health v. Jackson. The two cases present different issues, and there was no legitimate reason for the Fifth Circuit to pause the order in U.S. v. Texas based on reasoning set forth in Jackson.

In addition, Pitman’s order detailed the impact that the law was having on pregnant Texans—details that were unknown when the Court first refused to block the law in September.

Sotomayor noted that the district court had found that SB 8 has prohibited as many as 95 percent of abortions previously provided in Texas. She also pointed out that the squeeze on access in Texas was affecting surrounding points of access:

The court also found that patients who are able to leave Texas have encountered restrictions and backlogs exacerbated by S. B. 8, citing evidence of the Act’s “stunning” and “crushing” impacts on clinics in Oklahoma, Kansas, Colorado, New Mexico, and Nevada.

One provider in Oklahoma reported a “staggering 646 percent increase of Texan patients per day” that took up between 50 percent and 75 percent of capacity. Another provider in Kansas reported that about half of its patients now come from Texas. And as a result, this “constant stream of Texas patients has created backlogs that in some places prevent residents from accessing abortion services in their own communities.”

Refusing to block the law when it was obvious that the law would have an immediate deleterious impact on abortion access in Texas is bad enough. Refusing to block the law seven weeks later when that impact is far worse than imagined is unforgivable.

As we approach oral arguments on Monday—when the Court is set to hear both the providers’ case and the Biden administration’s case challenging SB 8—I expect Sotomayor to be the only justice willing to give voice to the pregnant Texans affected by this law. She has staked out a position on the Court as defender of the people—people of color, especially—in ways that Ruth Bader Ginsburg never did.

This is not uncommon for her. She routinely draws connections between the Court’s lofty pronouncements and the real-world consequences when the Court fails to protect people’s constitutional rights. In fact, she predicted that being Latina would enable her to look at cases through a different lens, and that prediction—her infamous “wise Latina” comments—nearly sank her nomination. At a speech she gave at the University of California, Berkeley, she mused that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male judge who hasn’t lived that life.” Needless to say, the overwhelmingly white and male members of the Senate Judiciary Committee were none too pleased.

But there’s nothing controversial about what she said. “We should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group,” she said. “Many are so capable. … Nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.”

“However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence one must accept the proposition that a difference there will be by the presence of women and people of color on the bench,” she continued.

“Personal experiences affect the facts that judges choose to see. … I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

She was right.

As she has done over the course of her tenure on the bench, Justice Sotomayor connects the law and the constitutional rights the Court is supposed to protect to the real world consequences of the Court’s failure to protect them. The empathy and compassion she brings to the adjudication process result in fiery dissents focused on people, not just law.

Because the bottom line is this: She’s absolutely correct on the law and its impact on people. Twice the Supreme Court was asked to put a stop to Texas SB 8 madness in order to maintain the status quo while the challenge to the law proceeded in lower court. And twice, the Supreme Court shrugged its shoulders and permitted Texas to make a mockery of the judiciary.

The rule of law doesn’t matter anymore, only naked partisanship. And while Sotomayor may be in the minority, her dissents are a breath of fresh air. Six of her colleagues are Federalist Society darlings—some of the FedSoc Six were handpicked by dark money overlord Leonard Leo while others are closely affiliated—and they all espouse the same conservative principles that result in decisions that favor the interests of corporations and Christian evangelicals and disfavor almost everyone else.

And if you’re a person who might become pregnant at some point in the future, forget about the constitutional right to an abortion. The Supreme Court apparently no longer recognizes it as a right—and simply hasn’t gotten around to explaining why yet.