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Sotomayor and Abortion


I had a request in comments to discuss concerns some liberal critics have had about Sotomayor’s record on abortion (which the administration has tried to address.) Fortunately, Filipovic already has the comprehensive version, so just a couple additional points/short elaborations:

  • Sotomayor’s vote in the gag rule case isn’t a major concern for the same reason that Alito’s vote on circuit to strike down a ban on D&X abortions wasn’t a reason for any optimism: the most substantive constitutional challenge to the gag rule was foreclosed by squarely controlling precedent (a precedent, incidentally, on which Souter was the swing vote in the wrong direction.)
  • It will impossible to infer any kind of definitive stance on the constitutionality of abortion from Sotomayor’s record for the obvious reason that 1)since she’s been on the Court the controlling Supreme Court precedent has been clear, and 2)the states under 2CA haven’t (to put it mildly) tried to pass innovative regulations that would test the limits of Casey. The fact that Sotomayor has a general liberal record, though, in itself makes it overwhelmingly likely that she would vote to uphold Roe. While as a matter of formal logic it’s possible for a liberal judge to think that Roe should be overruled, in practice it would be very unusual. Even pretty squishy liberal judges in the contemporary era tend to be strong supporters of abortion rights (cf. Breyer.)
  • As Jill said, Sotomayor’s cautious approach — while less than optimal in some respects — makes it even less likely that she would vote to overrule Roe. The decision has survived because justices a lot more conservative than Sotomayor didn’t have the stomach to overrule a precedent they may well have thought wrongly decided in the first instance. There’s pretty much nothing in Sotomayor’s record that suggests a Thomas-like gusto for overruling landmark precedents even in the unlikely event that she was inclined in this direction.

None of which is to say, of course, that liberals shouldn’t be pressing Obama, or that it shouldn’t be brought up in confirmation hearings (where pro-Roe nominees can be a lot more explicit than anti-Roe ones.) But I’m not worried in the least.

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