The Courts' policy-making problem.

Do I find the recent public statements of Sonia Sotomayor disturbing? Oh, yes. She and some of her colleagues have a deep bias against democracy and look at the court of as a policy-making branch of government.

She spoke very recently at an association of law schools, being interviewed by the dean of the very, very, very left-wing Berkely University Law School. She expressed “shell-shock,” was left “deeply sad” and felt “despair” over the direction the country was going after the last term. A lot of us do, but not for the same reasons she does. Why does she feel this way? She was smart enough not to mention any particular case, but we all know why (tell me I’m wrong, but tell me the other cases). Because the Supreme Court ruled what even Ruth Ginsberg knew was logical, that Roe v. Wade was overturned and the power to determine the laws about abortion were left to the states and strengthened the 2^nd Amendment. Maybe Dobbs was enough and that’s what I will discuss.

Roe had been a compromise by the Court in 1973 to stop the policy turmoil over abortion, possibly the most controversial and emotional political subject there is. It succeeded to some degree to take the issue out of presidential campaigns (not the court’s job), but it became the focus of almost every Supreme Court confirmation hearing (and therefore, in presidential campaigns, who will he/she appoint to the Court) and that power really was the remaining impact on presidential races. At hearings, they were always asked, especially by Democrats things like - Would the justice overturn Roe v. Wade? Does the Justice consider Roe super-precedent, whatever that means?

The Court only exists – at least in theory – to determine what the law is on actual controversies that come before it and make a judgment applying the law to the case. They are also supposed to be dispassionate and not make policy. But, that is exactly what it seems Sotomayor wants to do (often some of the conservative judges, but it’s almost always a turn left). It’s wrong. It’s anti-constitutional, it’s anti-democratic. Elected legislators and executives are supposed to make laws, and only if challenged, the courts to make sure they are not unconstitutional.

Dobbs did not outlaw abortion. Not even a little. It just gave it back to the states. The left has routinely exaggerated its effect, possibly because of media driven ignorance, probably more so for political purposes.  Biden has said that officials at the University of Idaho have been told they can get in trouble for even talking about or counseling on abortion. Biden Exploits Dobbs Ruling That Overturned Roe v. Wade | CNSNews. Like many things he says, it was just a complete falsehood (the State of Idaho prohibits the schools from using state money to promote abortion, the same thing our federal government does – but do not prohibit talking or counseling about it).  NY Governor Hochul said that the Supreme Court took away the right to abortion for millions of people. Statement from Governor Hochul on Supreme Court’s Ruling in Dobbs V. Jackson | Governor Kathy Hochul (ny.gov). Governor Newsome said that the US was rolling back rights and controlling women.  Newsom on pending Supreme Court abortion decision: It’s about controlling women | KTLA. These statements aren’t true because the Supreme Court did not rule on whether women could get an abortion, but that the States need to decide, and if you follow the fallout, many states have increased the potential for more abortions, even some red states. Some might argue that that’s what Hochul and Newsome meant, but, if so, why didn’t they say it? Because it’s always about the narrative and politics. Kamala has compared pro-lifers to slave owners. Kamala Harris Compares End of ‘Roe’ to Slavery | National Review even though killing a fetus at least 5 weeks old is literally taking a women’s life, half of the time. AOC, Pelosi and Waters have all called one way or another for what sure sounds like insurrection to me. Pelosi Wants Dobbs Uprising: 'Normal Response Won’t Suffice’ – PJ Media.

Sotomayor also said in her interview that she will continue to tilt at windmills, and to “fight.” But, she’s not a litigator. She’s a justice. She means fight against other justices, which sure sounds like there are Obama judges and Trump judges, regardless of what Justice Roberts wants to believe. She swore to uphold the Constitution, not the Democrat Party, not liberal politics. Even in the Dobbs dissent by the three liberal justices, appointed by Clinton and Obama (one Justice has been replaced by another liberal Justice), there was no argument that a right to abortion is actually found in the constitution, though they argue it is intertwined with “rights” that have been found. Read the dissent. They mostly argued policy.

I don’t really want to go into abortion policy here. Raised pro-choice, never hearing anyone I knew have a different position, I had to do a lot of soul searching and acknowledge that what I had learned and adopted was wrong for so long. For a long while I am mostly pro-life, at least starting when there is a detectable heartbeat, and admit that I may be wrong in not being against even earlier abortion. And I know many fiercely disagree. That’s not the question. The question is of the function of the Courts and the future of democracy (which, I also have pointed out here, the left, whatever they pretend, have striven to undermine - court action is one way).

One Justice, hated by the left, Clarence Thomas, had the courage to say that some other cases where rights were found similarly also wrongly decided them on policy grounds and should be reversed, the decisions left to the states. Though I don’t agree on all of them, his point was that we are a democracy and if our state has laws we cannot tolerate, we have a political process that can theoretically change it, or, we can leave the state (obviously, everyone can’t just leave). Part of the political process includes review of the law by courts, if a case is brought, to see if the constitution prohibits it, not to see if the judges like the policies. Personally, I hate some of the policies and especially some of the politicians in New York State. I still have to abide by the laws, like them or not.

Judicial activism and partisanship, like Roe, is not a new problem. It has always existed. But, it got worse after Roe and it’s very much open political warfare now. As I said, it is not always the left, as conservative Justices sometimes veer left too for whatever reasons they have, but it is more so a problem on the left wing. Rarely it is Justice Alito, who wrote Dobbs, or Justice Thomas, although I can't say never. Dobbs though was an easy decision. There's no question the Court usurped the power of the States.

Of course, Sotomayor is likely on the Court for life and she will continue to fight for left wing policies. It’s not her job, but there is nothing we can do about it. Because we have a Constitution. And that is a small part of what is left of it.