U.S. Sen. Lindsey Graham, a member of the Senate Judiciary Committee, questioned Supreme Court nominee Sonia Sotomayor during the second day of her Senate confirmation hearings on July 14. This was one of Graham’s questions:

What’s the best way for society to change, generally speaking? What’s the most legitimate way for a society to change? Do you think Roe v. Wade changed American society?

Graham, a South Carolina Republican, went on to ask the following:

But a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that’s disturbing. Can you understand how people may feel that way?

Now imagine if Judge Sotomayor had answered Graham’s question in a foolhardily candid manner:

Sotomayor Hearing ImageSOTOMAYOR: Yes, Senator, the Supreme Court has changed society with its decision in Roe v. Wade in ways that are similar to its decision in Brown v. Board of Education. As a woman of color, I have benefited from both decisions. Let me explain.

Those two decisions, made by “unelected judges,” to use your formulation, remade the landscape of race and gender in this society. The importance of the Supreme Court in protecting the rights of disempowered groups, such as women and racial or ethnic minorities, cannot be overemphasized. I understand that conservatives, and others invested in the status quo, deny and decry the use of the court’s power in service of the politically powerless. They contend that legislative action is inherently more legitimate than unelected, judicial action.

Senator Graham, let me turn first to Roe v. Wade, the case that is the focus of your question. The full integration of women within the social, political and economic structures of society depends on the right to privacy protected by Roe and its progeny. I stand here because there was a mobilization of women — and men — that fought for our right to control our bodies.

Women can today choose to go to college or not, go into the workplace or not, become mothers or not because our privacy rights are protected. What I am talking about is the full range of rights associated with reproduction: the right to contraception, the right to sex education, the right to adoption, the right to abortion.

Although it can’t be determined, I posit that the ranks of high achieving women would be considerably diminished if we eliminated those who had exercised the rights protected by Roe v. Wade. Each of us gains from the individual and collective labor of women who toil in and out of the home.

I recognize that my own ascension into this nomination has been facilitated by the court’s decision in Roe and the concomitant increase in the numbers of women in education and employment. The ability of women to participate fully in the workplace and to compete with men for promotions and positions of leadership depends on controlling when, and if, we become mothers. The political consensus that would have allowed the elected branches to undertake this change in society simply did not exist in 1973.

Let me discuss another action by “unelected judges.” In 1954, the Supreme Court, in deciding Brown, began the work of dismantling the legal scaffolding of racial segregation. While the overt systemic forms of apartheid primarily affected African-American people, the structures of racial discrimination also excluded other communities, including Puertoriqueños.

Could the Congress have passed legislation ending “separate but equal?” Even with the international pressure that was mounting against the racial segregation in the United States, it took the Supreme Court, insulated as its members are from political pressure, to undo the legal rationale for segregation. It is doubtful that the votes were there for such a revolutionary legislative agenda, given that it took President Lyndon Johnson and the assassination of President Kennedy to pass landmark civil rights statutes, one decade later.

You may also remember that opponents to the court’s decision in Brown responded with the so-called “Southern Manifesto,” which was signed by virtually all of the congressmen and senators from the deep South, claiming the right to disregard the decision and pledging massive resistance.

The denial of political access, such as the right to vote, continues to burden the ability of racial minorities to win fair and broad representation.

With Brown, the Supreme Court set in motion the political and social forces that resulted in a wide range of programs and policies to integrate this society. Princeton University and Yale Law School voluntarily designed affirmative action programs creating educational opportunities for women and racial and ethnic minorities like me. These programs also redounded to the benefit of the institutions themselves, the system of higher education and the larger society by expanding the meaning of academic excellence and by democratizing the structures of social mobility.

I remain a staunch defender and proud beneficiary of affirmative action.

Senator, we disagree about the role of the Supreme Court in protecting the rights of “discrete and insular minorities,” a right that was enunciated in the famous Footnote 4 in the Carolene Products case of 1938. With Footnote 4, the court created the concept of strict scrutiny used by judges to root out prejudice against minorities that cannot gain protection from the elected branches of government.

As the ultraconservative wing of the court has consolidated its power, it has reneged on this obligation toward under-represented groups, including women, racial and ethnic minorities, and other political outsiders. The court’s recent decision in Ricci, further narrowing remedies for unintentional discrimination in employment, is evidence of the continuing alignment of the court with white male employees who already have a hold on economic and political power.

To answer your question succinctly, Senator Graham, our history proves that, on certain issues like race and gender, it took the Supreme Court to initiate the actions which ultimately changed society.

This judicial prerogative under our Constitution is one that I hold sacred because it has vindicated the core values of equality and justice on which our social compact is founded.

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Margaret Montoya is a professor of law at the University of New Mexico as well as the 2009 Haywood Burns Chair in Civil Rights at the City University of New York School of Law.