The liberal justices on the Supreme Court made lengthy statements from the Bench on Wednesday during oral arguments in the case of Dobbs. v. Jackson Women’s Health Organization, a case that could see the 1973 Roe v. Wade ruling overturned.
The case involves a challenge by pro-choice groups to a Mississippi law passed in 2018 that bars abortions after 15 weeks of pregnancy, without exceptions for rape or incest, and before the current point of medical viability for an unborn child.
If the Court upheld the law, it would likely do so by overturning Roe, which discovered a hitherto unknown right to abortion in the Fourteenth Amendment to the U.S. Constitution. States would then be able to determine their own abortion rules.
Justice Sonia Sotomayor, Stephen Breyer, and Elena Kagan focused heavily on the question of stare decisis, the principle that past rulings of the Court ought to be upheld for their own sake, given the need for consistency and reliability in the law.
They also questioned whether other rulings based on rights not specifically enumerated in the Constitution — such as the right to same-sex marriage, or the right against transgender discrimination — would also be jeopardized by overturning Roe.
The conservative Justices tended to keep their questions short, poking holes in the stare decisis argument by noting past bad rulings by the Court that were later overruled, such as Dred Scott, and Plessy v. Ferguson, which allowed discrimination.
The tone and verbosity of the liberal justices’ arguments tended to suggest that they were speaking for posterity and for the public, rather than to convince their colleagues, as many Americans tuned in to hear the oral arguments in the case.
There are currently six Justices appointed by Republicans, and three appointed by Democrats — an unusual proportion that has led many Democrats to call for expanding the Court (“packing the court”) by adding seats that would be filled by liberals.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.