ACB: Would decision in your favor call into question Griswold, etc. (Softball.)
Stewart: No
Barrett: “Would a decision in your favor call any of the decisions that Justice Sotomayor is citing into question?” Throws Stewart a life preserver.
Sotomayor says that that which is not in the constitution can be “discerned from the structure of the constitution.” Stewart says that this is better described as “going beyond the constitution.”
A good point from Jonathan Adler on Sotomayor suggestion that if Roe gets overturned, future court could reject standard of an individual right to keep and bear arms:
Odd that Justice Sotomayor mentions 2A in reference to stare decisis when she joined McDonald dissent that would have effectively overruled Heller. 🤔— Jonathan H. Adler (@jadler1969) December 1, 2021
“Counsel, there's so much that's not in the Constitution.” Sotomayor gives the game away. Suggests that what's next is overturning judicial review in Marbury.
She actually is wrong in arguing that judicial review was unforeseen at the time of the Constitution. Hamilton explicitly discussed it in Federalist 78.
I doubt very much that Sotomayor's longwinded sermonizing is persuading her colleagues.
(The inference in Marbury was rather that the Court could not apply a power unconstitutionally granted it.)
It says a lot about Roe that one of its defenders on the Court is defending the decision by comparing an unborn child to a dead body.
Sotomayor is certainly right that the Constitution doesn't say the Supreme Court has the last word on the meaning of the Constitiution. (She's wrong, though, albeit in good company, to say that Marbury stood for that proposition.)
Interesting/surprising that Kagan has been silent so far.