Perhaps the most riveting moment in Wednesday’s Supreme Court hearing on Mississippi’s challenge to abortion rights came from Associate Justice Sonia Sotomayor. Six conservative justices showed their willingness to find any reason at all to erase decades of precedent and gut the right to an abortion in the United States, if not do away with it entirely—just as they were selected by Republican presidents, backed by the big-spending Federalist Society, to do. This puts the legitimacy of this court under Chief Justice John Roberts (that famous “umpire” simply calling “balls and strikes” from the bench) in jeopardy.
Sotomayor homed in on that in her questioning of Mississippi Solicitor General Scott Stewart. “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.” With that one question, Sotomayor just explained why her institution has to be reformed—and why court expansion is so essential.
No one can honestly look at this court—reviewing all the arguments put forward by those six conservatives—and not see a wholly politicized majority. Amy Coney Barrett even took the opportunity to bring anti-vaxx rhetoric into the mix. Brett Kavanaugh went out of his way to prove he was lying to Sen. Susan Collins when he said that he considered Roe v. Wade settled law and respects legal precedent. Samuel Alito went so far as to toss out all the science and suggest that life begins at conception.
In just one morning, they erased all the public relations efforts they’ve undertaken since the issue of court expansion has become prevalent and possible, and proven what the majority of Americans—61% of us—believe: that the Court is “mainly” motivated by politics. Sotomayor was sending a clear warning to her colleagues Wednesday: They are delegitimizing the court more and more with every extremist decision they make.
So, yes, it makes expanding the court a more salient and more urgent issue. Here’s one respected courtwatcher’s take on that, Dahlia Lithwick, who has been tepid to the idea of changing the court. She’s over any fear she had on that front.
I was late to the expand the Court party. I was one of those people who had what I can only describe as Patty Heart Syndrome, where I think most of the Supreme Court press corp is just like in love with their captors. And so we’re sufficiently institutionalist that talk of messing with the size of the Court is anathema. […] I’ve changed on that. If you don’t have that conversation, if you unilaterally disarm and just say ‘we can’t touch the court’ and ‘we can’t talk about touching the court’ because it’s too upsetting, it perpetuates the problem.I think that the only power that you have against life-tenured Article Three judges is to make your presence known, to show that as the public, you’re not going to tolerate a slow erosion of, you know, all the rights that we hold dear. Rather than waiting for all that to happen and then have a conversation about what we might have done in the smoldering embers, I think a conversation now about what are the ways in which the Court must change if we are to continue to have one person, one vote in America. I think that has to happen now.
Speaking of smoldering embers, here’s Sotomayor with the last word: “If people actually believe that this is all political, how will we survive? How will the court survive?”
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