2021—In a grandstanding dissent in Whole Woman’s Health v. Jackson, Justice Sotomayor charges that the Texas Heartbeat Act “echoes the [nullification] philosophy of John C. Calhoun,” and she objects to the “analogous sentiments” set forth in a brief that the “Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.”

Sotomayor’s claim that the Texas Heartbeat Act “echoes the philosophy” of Calhoun is quite a distortion. Calhoun maintained that a state legislature could reject any federal law that it considered unconstitutional. By contrast, the Texas Heartbeat Act is designed merely to prevent pre-enforcement review by federal courts. No one contests that in any enforcement actions Texas courts must entertain all federal constitutional defenses that a defendant might present and that they must apply Supreme Court precedent in doing so. So, contrary to Calhoun’s theory, Texas is not maintaining that it has unilateral authority to determine what the federal Constitution means within its borders.

Contra Sotomayor, the proposition that the “Supreme Court’s interpretations of the Constitution are not the Constitution itself” is obviously correct. If it weren’t, it would make no sense to speak of an erroneous decision by the Supreme Court on a constitutional matter, and Sotomayor herself would have no basis for disputing any constitutional precedent.