Sotomayor warns of danger to Supreme Court legitimacy in abortion fight: 'How will we survive?'

Justice Sonia Sotomayor questioned whether the legitimacy of the Supreme Court would endure if it overturned abortion rights during a landmark hearing on a Mississippi law restricting the procedure.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor said during oral arguments Wednesday morning. “I don’t see how it is possible.”

The case being heard, Dobbs v. Jackson Women’s Health Organization, could potentially overturn Roe v. Wade and Planned Parenthood v. Casey, the two linchpins of abortion-rights protections. The Mississippi law, which bans most abortions after 15 weeks, was blocked by a lower court. But anti-abortion advocates hope that the new conservative majority on the Supreme Court will deliver a favorable ruling.

Associate Justice Sonia Sotomayor listens during a hearing at the Supreme Court.
Associate Justice Sonia Sotomayor. (Erin Schaff/New York Times/Pool via AP)

If Roe were to be overturned, abortion would likely become illegal in 22 states, according to the Guttmacher Institute, a pro-abortion-rights research group.

Sotomayor said that state legislatures are moving forward with abortion restrictions “because we have new justices,” referring to the three appointees by former President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Those appointments have shifted the balance of the court to 6-3 in favor of conservatives. Sotomayor was appointed by Barack Obama in 2009.

“If people actually believe that it’s all political, how will we survive?” Sotomayor continued, arguing that any right, including the Second Amendment, could be in danger if the court’s legitimacy is undermined. “How will the court survive?”

Some justices have spent the past few months attempting to defend the legitimacy of the court as more than a political entity, but a September Gallup poll found record-low support for the branch. In the survey, just 40 percent of Americans said they approved of the job the court is doing, down from 49 percent in July. The poll was taken after the court declined to block a restrictive abortion law in Texas.

Chief Justice John Roberts, a Republican appointee who sometimes sides with the court’s liberal wing, is thought to be particularly concerned with maintaining the court’s legitimacy in the eyes of the public.

Stephen Parlato of Boulder, Colo., holds a sign that reads
Stephen Parlato of Boulder, Colo., at a demonstration of abortion rights advocates and anti-abortion protesters in front of the Supreme Court on Wednesday. (Andrew Harnik/AP)

If the court were to overturn Roe, polling indicates that could further diminish its standing in public opinion. A September survey from Yahoo News/YouGov found that 55 percent of respondents said they opposed overturning the ruling, while 26 percent supported reversing it.

That is in line with a poll last month from ABC News and the Washington Post, which found 60 percent in support of upholding Roe versus 27 percent who wished to overturn it. That survey also found that 58 percent of Americans are against state legislatures making it harder for abortion clinics to operate. It also revealed that just 20 percent of Americans said the decision of whether a woman can have an abortion should be regulated by law, versus 75 percent who said it should be left to the woman and her doctor.

The court shifted to the right during Trump’s presidency. Before Trump took office, then-Senate Majority Leader Mitch McConnell refused to hold a hearing for Merrick Garland, Obama’s nominee to replace Justice Antonin Scalia, a conservative stalwart.

The Republican-controlled Senate confirmed Gorsuch in 2017. It confirmed Kavanaugh, another conservative, the following year to replace the retiring Anthony Kennedy, long seen as the court’s key swing vote. And in the weeks before the 2020 election, McConnell pushed through the confirmation of Barrett, who replaced the late liberal jurist Ruth Bader Ginsburg.

President Donald Trump and Amy Coney Barrett stand on the Blue Room Balcony after Supreme Court Justice Clarence Thomas administered the constitutional oath to her on the South Lawn of the White House on Oct. 26, 2020.
President Donald Trump and Justice Amy Coney Barrett at the White House after her swearing-in on Oct. 26, 2020. (Patrick Semansky/AP)

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Barrett said during a September event in Louisville at the McConnell Center at the University of Louisville, while sharing a stage with the Republican senator whom it was named after.

Liberals have been urging 83-year-old Justice Stephen Breyer to retire, but so far the Clinton appointee has resisted their pleas. Breyer published a book earlier this year titled “The Authority of the Court and the Peril of Politics.”

“Even if a Democrat or Republican appointed you, you're there as a judge, and that means you better be there for everybody. ... A lot of people will strongly disagree with many of the opinions or dissents that you write, but still, internally, you must feel that this is not a political institution, that this is an institution that's there for every American,” Breyer told the Washington Post in September.