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Justice Sotomayor: ‘There’s going to be some question about the court’s legitimacy’

The remarks — somewhat more restrained than her colleague Elena Kagan's — were made at an event celebrating the 50th anniversary of the Lawyers Club of San Diego.

(CN) — It didn't take long for U.S. Supreme Court Justice Sonia Sotomayor to address the "elephant in the room," as she put it — the court's Dobbs decision earlier this year, which overturned Roe v. Wade and, as Sotomayor put it, "upended 50 years of precedent on abortion."

"Each time the court upends precedent, it does create discomfort in the society," Sotomayor said. "I think there’s an innate understanding, or at least expectation, that law itself will be stable and not subject to political influence."

She added: "When the court does upend precedent, in situations in which the public may view it as active in political arenas, there’s going to be some question about the court’s legitimacy."

Sotomayor took part in an hour-long conversation via Zoom with Ninth Circuit Judge M. Margaret McKeown, at an event celebrating the 50th anniversary of the Lawyer's Club of San Diego, a bar association that promotes gender equality.

The event came days after Justice Elena Kagan made headlines with a speech to Northwestern University in which she suggested that people were coming to see the Supreme Court as "extensions of the political process," and explicitly criticized the judicial philosophy known as originalism.

Sotomayor's comments were more measured.

"I do try very hard in my public appearances to stay away from political issues as much as I can," she said, though she also admitted: "There are some issue that you can’t run away from."

In one of the more pointed questions of the evening, McKeown cited something Sotomayor herself said in the Dobbs case's oral arguments: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible." Nine months later, McKeown asked, what did she now think?

The justice dodged the question. "Does my view matter or does the public’s view matter?" she asked, suggesting it was the latter. "The public will have to tell us that."

Sotomayor took questions on a range of other topics, including two asked by school children. Asked whether social media was bad for girls, she said, "Unfortunately, I really worry about social media, and how it's impacting not just girls but boys too."

Asked about incivility in society, Sotomayor recalled something taught to her by her mother, who grew up an orphan in Puerto Rico.

"This is something that my mother taught me, which is, it’s easier to get along with people if you accept that people, at their core, are good, that they have values that you share, that they have feelings that you might have as well," Sotomayor said. "I think we’ve lost that in our society. I see a lot of people talking past each other, assuming the other person is in bad faith."

Sotomayor, 68, said she was speaking remotely because she doesn't feel safe traveling due to Covid, and the fact that she has a condition, Type I diabetes, that puts her in a high-risk category.

McKeown asked the justice if she'd picked up any hobbies during the pandemic. Sotomayor said she had: watching popular movies like Ghostbusters and Men in Black, and playing online poker.

"Usually only with friends," she said with a laugh.

The U.S. Supreme Court has been on recess since June. The new term begins in October.

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