Sotomayor unloads on the Supreme Court for betraying the Constitution in scathing response to Texas ‘madness’
Justice Sotomayor -- YouTube screenshot

On Friday, the Supreme Court once again kicked the can on the Texas abortion case — not ruling on the merits of the nation's harshest abortion ban, but ruling that some of the abortion providers' lawsuits against state officials could proceed. This kicks the issue back to a district court in Texas, where a federal judge had already previously ruled the law was unconstitutional.

But this half-measure did not satisfy Justice Sonia Sotomayor, who had a blistering response for her colleagues.

"The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today," wrote Sotomayor. "I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review."

"By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights," Sotomayor continued. "The Court thus betrays not only the citizens of Texas, but also our constitutional system of government."

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S.B. 8 was designed to circumvent the normal mechanisms by which courts block unconstitutional abortion bans. It prohibits nearly all abortions after six weeks' gestational age — which is before many women even know they are pregnant — but doesn't task state officials with enforcing the law, instead empowering private citizens to file civil suits against any person who "facilitates" an abortion. This is intended to create legal ambiguity over who can even be sued for violating women's abortion rights.

Sotomayor said the law had wrought havoc on women seeking abortion care in Texas, and added that her “disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue.”

She argued the Supreme Court had given the states a loophole that allowed them to nullify federal constitutional rights, which she described as “a brazen challenge to our federal structure” that echoed the philosophy of South Carolina politician John C. Calhoun, who played a pivotal role in the expansion and protection of slavery.

"While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general," concluded Sotomayor. "By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic."

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