Justice Sonia Sotomayor, now the anchor of the Supreme Court’s dwindling left flank, cut to the heart of the matter with her first question in Wednesday’s oral argument over Mississippi’s abortion law, which forbids the procedure after 15 weeks of pregnancy. As she noted, the legislators who drafted and passed the law did so with the explicit hope that the court’s new conservative supermajority — solidified during the Trump administration — would use it as a vehicle for overruling Roe v. Wade. If her new colleagues seize that opportunity, she asked, “will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”  

The question was nominally directed at Mississippi’s lawyer, who was defending the abortion law and urging the court to dismantle almost 50 years of jurisprudence on reproductive rights. But in truth, Sotomayor was speaking to three of her colleagues — the chief justice and the court’s newest members, Justices Brett M. Kavanaugh and Amy Coney Barrett — in the hope that institutionalism would prevail over ideology.  

As the argument proceeded, however, she seemed to recognize that the votes to preserve current law — whether Roe as a whole or the standard of fetal viability that has long shaped when states can regulate abortion — simply weren’t there. And she began to speak as if to the public rather than to the justices, signaling that while the situation in the courts looks grim for abortion rights advocates, their political fight will, and must, continue.

During Supreme Court oral arguments on Dec. 1, Justice Sonia Sotomayor pointedly refuted several arguments supporting a Mississippi anti-abortion law. (The Washington Post)

Sotomayor’s initial appeal to Chief Justice John G. Roberts Jr. was an obvious move.  Of all the court’s members, Roberts is well-known as an institutional stalwart — someone who prioritizes the court’s legitimacy and public standing, even when doing so places him at odds with conservative sensibilities. He famously cast the crucial fifth vote to save the Affordable Care Act in 2012, and in 2020, he joined the court’s liberal wing to strike down a Louisiana abortion law on the grounds that his vote was compelled by stare decisis, the principle that the court’s past decisions must be followed in almost all circumstances.

In recent years, Roberts’s institutional proclivities have been coupled with a strategic use of his persuasive powers to cajole some of the court’s more junior members over to his position. Sotomayor no doubt hoped that an appeal to institutionalism might activate Roberts as an ally in enlisting Kavanaugh and Barrett, the two justices who have been most receptive to the chief’s overtures, in a campaign to preserve precedent — and the court’s standing with the public.  

It wasn’t necessarily a pipe dream. After all, only a few weeks earlier, Barrett gave a speech at the University of Louisville’s McConnell Center rebutting the notion that she and her colleagues were “partisan hacks.” That is precisely the impression that Roberts, too, wants to deflect.

But within the first 30 minutes of oral arguments, it was clear that Sotomayor’s institutionally minded optimism had curdled. The chief justice showed no interest in preserving Roe and Casey’s status quo, and pursued instead the prospect of brokering some compromise that would uphold the Mississippi law while stopping just short of overruling the earlier decisions.  

Kavanaugh and Barrett plainly seemed uninterested in compromising. In a series of questions, Kavanaugh gestured toward a post-Roe world in which the court was no longer the arbiter of abortion rights, leaving the issue to the states. And in a truly surprising move, Barrett brought “safe-haven laws” into the discussion. These permit parents to terminate their parental rights by surrendering newborns for adoption at designated sites. Barrett’s line of questioning suggested that, because such laws relieved women of the burdens of “forced parenting, forced motherhood,” restrictions on abortion posed few constitutional burdens.  

As a young lawyer, I had the privilege of clerking for Sotomayor when she was a judge on the U.S. Court of Appeals for the Second Circuit. Then, as now, her approach to judging was underlaid with a shrewd pragmatism. Which is why I was not surprised when she appeared to change course as she sensed no openings from those three colleagues.

All the conservatives seemed to be embracing a cataclysmic reordering of the reproductive rights landscape. If the chief justice prevailed, the viability line would be eliminated as a salient marker in the court’s jurisprudence. If the court’s even more conservative bloc prevailed, Roe and Casey would fall. Either way, the consequences for American women would be devastating.

Sotomayor therefore started to direct her questions beyond the marble walls at 1 First Street NE, to the American people themselves. In stark and bracing terms, she articulated the stakes for women, centering their voices and experiences in the debate. When Mississippi’s lawyer, Scott Stewart, suggested that the abortion question should be decided through state-level political deliberation, Sotomayor was quick to interject. “When,” she demanded, “does the life of a woman and putting her at risk enter the calculus?” When Stewart suggested that the viability standard should be abandoned because it was not specifically enumerated in the Constitution, Sotomayor reminded him that “there’s so much that’s not in the Constitution.” Indeed, as she recounted, the text says nothing about judicial review — the court’s duty to interpret the Constitution and “say what the law is.” That constitutional innovation, like Roe and Casey, was a result of judicial interpretation of the broader principles undergirding the document. And if Roe is struck down, she noted, other decisions that relied on similar logic — including those establishing a right to use contraception and a right to same-sex marriage — could fall, too. 

Her nod to Marbury v. Madison, the 1803 case that enshrined the principle of judicial review, was a reminder of the concept of jurisprudence — the work judges and courts do to interpret the law and protect rights. But Sotomayor was suggesting that the court need not have the last word on abortion.

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. Not with a Jan. 6-style insurrection but with the sort of grass-roots energy that once fueled the civil rights movement and other progressive social causes. 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.

In a morning that offered little cause for optimism for those who favor reproductive freedom, Sotomayor’s subtle message was both pragmatic and — at least potentially — uplifting. The court will not save our rights. But maybe we can save them ourselves.  

Twitter: @ProfMMurray