The Magazine

Questioning Sotomayor

The Senate hearings needn't be worthless.

Jul 13, 2009, Vol. 14, No. 40 • By ROBERT F. NAGEL
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Consider, to begin with, the central constitutional issue of recent times: abortion. Instead of asking about whether a right to privacy can be found in some legal penumbra, Sotomayor could be questioned about the social consequences of Roe v. Wade. For example, she could be asked whether she agrees with the many serious observers who believe that Roe significantly intensified conflict over the abortion issue by making moderation and compromise less possible. Or she could be asked whether she thinks the decision increased public cynicism about what the Court does when it engages in what is called constitutional interpretation.

The anger and disenchantment created by the original abortion decision led, of course, to a sustained political effort to get the Court to reverse or limit that ruling. In 1992 the Court reacted by reaffirming the basic holding of Roe that the Constitution protects the right of abortion. In this decision, Planned Parenthood v. Casey, a majority of the Court declared that the purpose of Roe had been to end the nation's division on the issue of abortion and that continuing efforts to induce a reversal of that case were a threat to national identity and the rule of law.

Senators, therefore, could ask Sotomayor whether she agrees with the Casey Court that the purpose of a Supreme Court decision sometimes ought to be the termination of public debate on a moral issue. They could ask if she agrees that lawful efforts to convince the Court to reverse itself are in some instances anarchic. And, if she answers in the affirmative, they could ask whether insulating the Court's rulings from political dissent might not result in a sense of disenfranchisement and alienation among significant segments of the public.

Abortion, needless to say, is not the only issue that raises profound questions about the role of the Supreme Court. Eminent observers have defended Bush v. Gore, the decision that determined the outcome of the 2000 presidential election, on the ground that in some periods of turmoil the Court's role is to prevent the political branches, including Congress, from creating chaos. Sotomayor could be asked whether she agreed with that assessment. And she could be asked whether the Court's intervention might itself have risked a certain kind of chaos by undermining the legitimacy of a presidential election.
Once those busy people preparing for Sotomayor's confirmation hearings turn their thinking to this general line of inquiry, they will find vast resources are at hand. Have the many Supreme Court decisions protecting profanity and other forms of indecent speech helped to undermine suitable standards of public discourse? If so, what are the likely consequences for our democratic system? On issues like sexual equality and gay rights does the Court risk being seen, in the way that Justice Scalia has charged, as taking sides in the culture wars? If so, what are the potential costs to public debate on moral issues and to public attitudes towards the judiciary?

Broaching these kinds of issues inevitably leads to claims that the Court's interventions are sometimes necessary and healthy because, as in the circumstance of school desegregation, only the judiciary can liberate minorities from oppression. If such claims are made, Sotomayor could be asked what she thinks of recent, respected scholarship indicating that Brown v. Board of Education was less a factor in producing integrated schools than congressional legislation. If Sotomayor, like many members of the legal elite, displays a lack of appreciation for the role of Congress in protecting the rights of minorities, senators (one would think) might want to take note.

An informed discussion about the role of the Supreme Court in America's cultural and political life would reveal a great deal about what sort of justice Sonia Sotomayor would be. It would also encourage public consideration of institutional issues of the highest importance.

Robert F. Nagel is the author, most recently, of Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction Publishers, 2008).