Sotomayor Disqualifies Herself from Ruling on Texas Heartbeat Act?

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According to this Washington Post article, in an American Bar Association summit on diversity today, Justice Sotomayor appears to have encouraged lawyers in her audience to work to change the Texas Heartbeat Act. Indeed, she seems to realize that she crossed the line requiring her disqualification from cases involving the Act.

Here’s the full passage (emphasis added):

Sotomayor was among the four dissenters who would have stopped the law taking effect, and in a virtual appearance at an American Bar Association summit on diversity, she mentioned the Texas law, which she wrote in her dissent was “flagrantly unconstitutional.” She told a questioner that “there’s going to be a lot of disappointments in the law, a huge amount.”

“As you study cases and look at outcomes you disagree with, it can get frustrating,” she said. “Look at me, look at my dissents, okay?” she said, laughing. “At least I have a vehicle, I have a dissent mechanism that I can explain how I feel.”

She continued: “So you know, I can’t change Texas’s law, but you can. You can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”

“I’m pointing out to that when I shouldn’t because they told me I shouldn’t,” she said, referring to the practice by which justices refrain from commenting outside the court setting on cases that are before them.

Note how in the middle of the second sentence that I’ve highlighted, Sotomayor evidently grasps that she has improperly spoken about the Texas Heartbeat Act, so she tries to shift at the end of her sentence to speaking generically of “changing laws that you don’t like.” Too late, as she herself seems to acknowledge in the last sentence: “I’m pointing out to that when I shouldn’t….”

It already seemed farfetched that the abortion providers challenging the Act would get the four votes needed to grant their extraordinary petition for certiorari before judgment. Without Sotomayor’s participation, the probability would be zero.


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