Breaking the Sotomayor Mold

Justice Sotomayor, SOURCE: WIKI COMMONS (attribution: Gage Skidmore)

In the wake of Justice Breyer’s retirement announcement, Democrats are divided over whether President Biden should appoint a more conciliatory “bridge-builder” who will look for opportunities to build alliances with the conservative justices or a more aggressive “truth-teller,” who will write the fiery dissents that could be the blueprint for a future progressive majority.

The advocates of “truth-telling” have lionized Justice Sonia Sotomayor, former president Barack Obama’s first Supreme Court nomination, as their champion on the Court, who they see as a patriotic witness for true moral and legal propositions and the mold for Biden’s next pick. 

Strikingly, by celebrating Justice Sotomayor’s opinions as more than merely her truth, the Left has, at least in this instance, rejected radical relativism.  This nomination should therefore proceed on the common assumption that an objective truth exists and is knowable. 

These advocates thus invite us to apply the test of truth to Justice Sotomayor’s jurisprudence, what we can call the Sotomayor mold.  And which test of truth is more fitting than those self-evident truths our nation was built upon, the natural rights to life, liberty, and property?  Let us then apply the test of truth to the Sotomayor mold in three relevant areas of jurisprudence: abortion, religious liberty, and takings.

Life and Abortion

The natural right to life entails, minimally, a fundamental duty of persons not to intentionally take innocent life.  Yet, dissenting in the recent Whole Women’s Health v. Jackson decision, Justice Sotomayor opposed a Texas law that seeks to protect innocent, pre-born life.  Justice Sotomayor contended that Texas has “substantially suspended a constitutional guarantee: a pregnant woman’s right to control her body.”  There are various possible reasons judges in the Sotomayor mold could have for thinking this is a constitutional right.  None of them hold water.

First, neither the Constitution nor the common law, as historically understood, makes any such guarantee.  The Due Process Clause guarantees just that, due process of lawif the State deprives a person of life, liberty, or property.  Nothing in the original public meaning of the text indicates that it is an independent wellspring of such an unenumerated and unspecified individual liberty as a “pregnant woman’s right to control one’s body.”  

Of course, judges in the Sotomayor mold hold that liberty’s meaning is always unfolding because it is untethered to history.  But if this is true, then why is the abortion liberty guaranteed while a panoply of other unenumerated rights grounded in bodily autonomy, but historically proscribed, are not?  Does the meth cook not have the right to control his own bodily labor in his trailer?  Judges in the Sotomayor mold have never identified a coherent and non-arbitrary standard by which to identify which substantive due process liberty claims are in and which are out. 

Perhaps Justice Sotomayor only means that precedent makes the abortion guarantee, premising the right on Planned Parenthood v. Casey.  But, this would give lie to the perception of the Sotomayor mold as “truth-telling.”  The Casey opinion foreswore making any claims to objective truth about personhood.  At the heart of liberty, it was announced, is the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Moreover, the Court was not asserting an objective truth about the relativistic nature of liberty, its soaring rhetoric notwithstanding.  Indeed, the Court explicitly declined to extend the logic of this putative principle to create a fundamental right to assisted suicide.

What the Court really meant was quite specific: each pregnant woman has a radical right to define the personhood of her unborn child for herself.  In other words, the Court held that a pregnant woman has a constitutional right to adopt either an essentialist view (that all members of the human species are persons because of the kind of thing they are), or a performative view (that only some human beings are persons, depending on some operations they are able to perform).  Whichever view she adopts, at least before viability, that is her truth, which the State is bound to respect.

But, as we have seen, those advocating for a Biden pick in the Sotomayor mold have implicitly rejected Casey’s relativism by rejecting the language of private truths and affirming the possibility of objective truth-telling.  And they cannot reply that the truth about unborn personhood is uniquely perspectival without committing the fallacy of special pleading.

Pro-choice philosophers often argue that the performative view of personhood is objectively true, and contend that the essentialist view is objectively false.  But, notably, some pro-choice philosophers who oppose even the moderate restrictions that the Casey Court permitted (24 hour waiting period, parental notification, etc.) contend that even if one assumes the objective truth of the essentialist view, abortion should still be legal.  It isn’t surprising that this argument never even mentions the United States Constitution.  Affirming the truth of unborn personhood is presumptively a non-starter for judges in the Sotomayor mold, since the 14th Amendment expressly guarantees the equal protection of the laws to all persons.

Hence, maybe Justice Sotomayor rejects the relativist and relatively more “moderate” solution of Casey, believing that the essentialist view is objectively false.  Perhaps she maintains that, as a matter of objective truth, the unborn entity just is a part of the pregnant woman’s body and therefore subject to her “control” throughout most or all the duration of pregnancy.  But this is demonstrably untrue.  The unborn entity is not the equivalent of, e.g., a piece of one’s integumentary system, the removal of which is the moral equivalent of trimming one’s fingernails. 

For, if that were true, then the four-month-pregnant mother with male fraternal twins would just be a person with three heads, three hearts, eight arms, eight legs, two penises and one vagina, six eyes with three different colors, and three different sets of DNA.  That is absurdity heaped upon absurdity, and one that has no place in a jurisprudence committed to truth.

Religious Liberty

The Constitution’s religion clauses were understood to protect a range of liberties connected to the natural rights of conscience and free exercise, including the right to act on religious reasons when carrying out one’s duties.  But Justice Sotomayor’s religion clause jurisprudence does not fare the test of truth much better.  In a 7-2 decision, the Court held that the Bladensburg Peace Cross erected in 1925 to commemorate World War I veterans was constitutional.  Justice Sotomayor dissented, arguing that this monument elevates “religion over nonreligion.”  In another 7-2 dissenting opinion, she argued that Missouri was justified in singling out religious schools for disfavor, prohibiting them from participating in a taxpayer-funded program to resurface their playground just because they were “religious.” 

Such opinions reflect the old, dead liberal consensus from the aggressively secularist heyday of the Court in the 1960s and 70s.  It has been buried by decades of scholarship demonstrating that the First Amendment was never understood by the Founders to enact a regime of strict separationism.  

Moreover, the strict separationist jurisprudence of the Sotomayor mold is incoherent on either a broad or a narrow definition of “religion.”  If narrowly defined as something akin to traditional institutional theism, then free exercise jurisprudence would be under-inclusive of religious minorities.  But if broadly defined to be maximally inclusive (including polytheistic and non-theistic religions) to be something akin to sincerely held ultimate concerns, then any policy advancing a vision of justice could be construed as illicitly advancing religion on the strict separationists’ beloved Lemon Test.

Property and Takings

The Founders saw the natural right to property as essential to human flourishing and dignity, since property ownership was essential to the pursuit of happiness and the independence characteristic of ordered liberty.  Accordingly, throughout The Federalist, the right of property is linked to the rights to life and liberty.  But, consider Justice Sotomayor’s position on the Takings Clause of the 5th amendment, one of the Constitution’s several provisions protecting the natural right to property.  In one case, the Court had to decide whether an entity called the Raisin Administrative Committee—a bureaucratic relic of New Deal-era price control schemes—engaged in a taking when it tried to seize from small family farmers nearly 30% of their raisins.  The Court held 8-1 that this constituted a taking: government had physically appropriated private property and therefore must pay just compensation. 

Justice Sotomayor was the lone dissenter.  She reasoned that, as long as the farmers retained even an attenuated interest in some proceeds from the governmental scheme, it did not matter if they received no net gains back from it.  Similarly, in other takings cases, she has joined opinions that narrowly construe what counts as a regulatory taking, and seek to augment governmental power to regulate relative to the property owner, even when those regulations diminish the value of the property.  In short, the Sotomayor mold entails an extremely narrow view of private property rights.

But the Sotomayor mold does not view property narrowly, per se.  The corollary of construing private property rights narrowly is that the collective’s property rights, exercised through government regulation, is extremely broad.  So broad, in fact, that Justice Sotomayor believes the government can conscript private businesses as agents of its public health schemes to try to control the health care choices of over 80 million Americans, on the pain of crippling fines and bankruptcy.  She even intimated in the oral argument in the 2022 NFIB case that bureaucratically imposed vaccinate-or-test requirements are the same in kind as government-required safety measures for equipment that emits sparks, suggesting that human persons can be treated like machines.  This was said without irony, as if the history of collectives treating persons like property were not violent, ugly, and painful.

Is it not apparent that the Sotomayor mold founders upon the rock of truth?  Is it not obvious that adding more justices in this mold to the Court would perpetuate prevarication?  If the Senators on the Judiciary Committee care about the truth, then they ought to apply the test of truth in their questioning and ask Biden’s nominee to disavow the Sotomayor mold.

Kody W. Cooper is UC Foundation Assistant Professor of Political Science at the University of Tennessee at Chattanooga. He is the author of "Thomas Hobbes and the Natural Law" (University of Notre Dame Press, 2018), and coauthor (with Justin Buckley Dyer) of "The Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the American Founding" (forthcoming from Cambridge University Press, 2022).
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