Posted on June 2, 2024



Oh, Woe Is Sotomayor

Here's wishing many unhappy returns


Daniel Clark



For the past two years, the Democrats and their allies in the news media have been doing opposition research on conservative Supreme Court justices, to get information they think will justify their calls for recusal or even resignation. In particular, they have tried to deduce on the basis of practically no evidence that Samuel Alito, or at least his wife, has some opinion about the Capitol riot that would bias his judgment on any related case that came before him. Meanwhile, liberal justice Sonia Sotomayor has announced to anybody who is willing to listen, and not for the first time, that she views her role on the court as that of an advocate, fighting for causes, instead of as a judge who dispassionately applies the Constitution as written.

"There are days that I've come into my office after an announcement of a case and closed my door and cried," she recently told a group of students at Harvard. "There have been those days, and there are likely to be more ... You have to shed the tears, and then you have to wipe them and get up, and fight some more." Those are not the words of a judge, who hears a case and tries to make the legally correct ruling, but of a legislator, an advocate, a political partisan. This is the way she views her role, as she has repeatedly declared.

This past January at Cal-Berkeley, she said, "[E]very loss traumatizes me in my stomach and in my heart, but I have to get up the next morning and keep fighting." None of the justices rules in the majority in every case, but for them to perceive dissents as "losses" is to fundamentally misunderstand their function. Had Clarence Thomas ever characterized his judicial career as a series of personal victories and defeats, Democrats would angrily demand that he step down. Well, they do that anyway, but this time they'd have a point.

In the 2022 Dobbs v. Jackson Women's Health ruling that overturned Roe v. Wade, Sotomayor joined Justices Stephen Breyer and Elena Kagan in dissenting "with sorrow." Had they been less emotionally invested, they might have realized that they had no legal basis for their conclusions. In fact, they tacitly admitted as much when they assailed the Constitution and its authors as sexist, and argued that this is why it is incumbent upon modern liberal jurists to concoct a right to abortion. Like many of Sotomayor's remarks, this is something that liberal judges don't typically say out loud. While paying lip service to their duty to faithfully interpret the Constitution, openly disdaining that same document is something of a novel legal approach.

"Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals," they wrote. "When the majority says that we must read our foundational charter as viewed at the time of ratification ... it consigns women to second-class citizenship." Of course, the Fourteenth Amendment was not originally part of the Constitution, but pointing that out seems like splitting hairs, in the context of such a thoughtlessly spewed jumble of inaccurate liberal assumptions. The opinion did not follow up with an example of language from the Constitution that might arguably consign women to second-class citizenship, because none exists. Either the justices didn't bother to look for one, or else they simply refused to allow its absence to derail their contrived indignation.

It follows that there is no basis for stereotypically ascribing misogynistic attitudes to our founding fathers. John Adams wrote the Constitution of the Commonwealth of Massachusetts, of which the United States Constitution is largely derivative. Does anyone doubt that John Adams perceived Abigail as his equal? Such a question would not likely occur to three of America's most accomplished liberal minds. Such is their settled assurance of their own superiority.

The Dobbs dissent is a thorough academic embarrassment, for the very reason that it is the result of liberal justices fighting for a cause, instead of making a faithful effort to interpret the law. They argue not like great legal scholars, but like a party spokesman on a confrontational cable news show. When the facts don't fit their policy objectives, they engage in ad hominem attacks and emotional exploitation.

At her 2009 confirmation hearings, Sotomayor characterized her philosophy as "fidelity to the law." If there's anything phonier than that, it's Democrat senators Dick Durbin and Sheldon Whitehouse demanding to meet Chief Justice John Roberts for the purpose of discussing the Alito "problem." Roberts, who has no authority to discipline an associate justice anyway, rejected their demands as any responsible person would. They feign concern about the impartiality of the conservative justices, even as they consider judicial impartiality to be the enemy. Evident of this is their lack of concern over Justice Sotomayor, who might as well make herself up in Braveheart face paint whenever she enters the chamber.

Durbin, Whitehouse and their party want the same thing that Sotomayor does, which is to discard the Constitution and turn the Supreme Court into a mega-legislature. If they ever succeed in packing the Court, then the new, partisan Democrat majority will be able to create new laws from the bench, unencumbered by constitutional checks and balances. Their campaign against constitutionalists like Thomas and Alito is intended to justify such a radical realignment.

Nobody should wish for another person to be unhappy, but as long as Sotomayor's happiness is derived from subordinating the Bill of Rights to the whims of judicial activists like herself, her sadness is the only acceptable outcome. If respect for the Constitution and the men who wrote and ratified it traumatizes her stomach and her heart, then so be it. The pain that she feels from "losses" like the Dobbs ruling are nothing compared to the harm that is done to others when she wins.



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