After Roe: The Reversals to Come
Conservative jurists will not rest until social liberalism has been stripped from the Constitution
The overturning of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) is a constitutional earthquake the full political, legal, and cultural ramifications of which won’t be known for many years.
It’s all well and good for conservatives to insist that Dobbs v. Jackson Women’s Health Organization (2022) has merely returned the matter of regulating abortion to the democratic process. But the whole point of constitutional rights is to remove certain fundamental liberties from the democratic process. What the court did 49 years ago was elevate the reproductive liberty of women to that status, and now the high court has reversed itself, proclaiming that, actually, no, the Constitution does not place women’s reproductive freedom beyond politics. (For the purposes of this post, I will largely set aside the question of whether Republicans have also rigged the political/electoral game in a way that unfairly advantages them in coming state-level, and potentially federal, battles over abortion.)
But is this an end or a beginning? Is Dobbs a one-off that overturns a uniquely divisive and polarizing decision? Or is it the first in a series of conservative assaults on social liberalism?
The Future of Constitutional Liberalism
To judge from the decision itself, there is some disagreement among the justices on this question. Justice Clarence Thomas filed his own concurring opinion in Dobbs, declaring that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Those are cases that announced, respectively, a right to privacy and access to contraception for married couples, a right to engage in consensual sexual acts that were once often subject to criminal penalties as acts of “sodomy,” and a right to same-sex marriage. (Thomas holds out the possibility that some of these rights might be more firmly grounded in the privileges and immunities clause of the Fourteenth Amendment, but he thinks the effort to ground them in the due process clause, as this line of cases does, is “lack[ing] any basis in the Constitution.”)
Anticipating Thomas’ concurrence, Justice Samuel Alito, author of the main opinion in Dobbs, declares peremptorily that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Stated in that way, Alito is right: nothing in Dobbs entails that any other case or line of cases is placed in jeopardy by the 6-3 decision overturning Roe and Casey.
But that’s also not what Thomas said or implied. He thinks Dobbs should begin a process whereby the Supreme Court revisits and overturns other (to his mind) specious precedents—indeed the very one (Griswold’s declaration of a right to privacy) on which Roe most heavily relies. So Alito’s anticipatory response gets the logical order backwards: Dobbs doesn’t necessitate the overturning of any other cases; rather, it presents an opportunity to correct a more fundamental error that made the mistake of Roe possible in the first place, along with the mistakes that recur in the other “substantive due process” cases that embedded social liberalism within the Constitution.
How likely is it that the other conservative justices will end up being persuaded to exorcise other elements of social liberalism from the nation’s fundamental law? Reading the writings of the most influential conservative jurists of the past half century, including some still on the Court, makes it exceedingly difficult to imagine they will restrain themselves from doing exactly that.
What’s the Matter with Privacy?
One reason why the Senate’s rejection of Robert Bork’s nomination to the Supreme Court back in 1987 remains such a source of bitterness on the right is that Bork was a deeply respected and influential figure among conservative intellectuals. Bork’s most concise and accessible summation of his criticism of Griswold v. Connecticut (1965) is found in his 1990 book The Tempting of America, in a chapter with the unsubtle title of “The Right to Privacy: The Construction of a Constitutional Time-Bomb.”
The first problem with Griswold’s declaration of a right to privacy, according to Bork, is that such a right does not appear in the text of the Constitution. This didn’t bother Justice William O. Douglas, the author of the opinion, who asserted in a memorable passage that “specific guarantees in the Bill of Rights” have “penumbras, formed by emanations from those guarantees.” And one of those penumbras is a marital right to privacy that shields the purchase and use of contraceptives from legal restriction. Bork considered talk of constitutional rights emerging from ill-defined “emanations” and “penumbras” to be a form of mysticism in which judges give themselves license to make up rights out of whole cloth and then use them to overrule the democratic will of the people.
Bork’s second objection echoes the first, insisting that a specific right to privacy was bound to become a black box within which justices would claim to discover other, subsidiary rights that they would use to usurp additional legislative powers of the states, leading to a kind of judicial tyranny in America. On Bork’s reading, Roe is the most notorious example of the right to privacy yielding a previously concealed right (the right to an abortion) that empowers the courts to strike down democratically enacted laws across the country.
Both arguments against a right to privacy champion judicial restraint in the name of the supremacy of democratic self-government. If the elected representatives of a state wish to outlaw the sale, purchase, or even use of contraceptives, they should be permitted to do so, unless such a law explicitly runs afoul of a precisely delineated right enumerated in the Constitution (including its amendments). The Constitution contains no such right. Therefore, a law banning the sale, purchase, and use of contraceptives should be permitted.
This doesn’t make an anti-contraceptive law wise. It doesn’t mean Bork himself would personally approve of it. It just means that Supreme Court justices have no ground to forbid the citizens of an American state from enacting such a law through their elected representatives.
A Presumption in Favor of Democracy
Bork and the many conservative jurists and pro-life activists who followed his example have for decades repeated this line of argument against Roe. This includes, in Dobbs, Justice Alito, who writes at length about how anti-democratic it is to forbid Americans from enacting laws that reflect and express their firmly held (and sometimes religiously founded) moral convictions. This is certainly the case when it comes to an issue like abortion, in which public opinion remains deeply conflicted, with some states opting to permit abortions quite late in pregnancy and others favoring total bans on the procedure. But it’s also true on issues where there is far greater consensus.
In Lawrence v. Texas (2003), the Supreme Court ruled that criminal sanctions for those who commit non-procreative sex acts (“sodomy”) are unconstitutional. Very few people in 2022 would likely support such a law, even in Texas. When Lawrence was decided, neither did Justice Thomas, who in his dissenting opinion made a point of quoting Justice Potter Stewart’s line (from his dissenting opinion in Griswold) to the effect that the law under review in the case was “uncommonly silly.” But that silliness, in the view of both Stewart and Thomas, was insufficient grounds for pronouncing the laws unconstitutional. The Constitution doesn’t forbid silly laws any more than it requires wise ones.
Justice Antonin Scalia made that point very powerfully in his dissent in Lawrence, which portrayed the majority decision as an outright assault on democratic self-government. Once again, aside from egregious violations of rights precisely specified in the Constitution, democratic legislatures should be given free rein to make such moral judgment-calls unimpeded by the sweeping proclamations of judges who believe they know better. As Scalia put it, “I would no more require a state to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so.”
But perhaps no conservative jurist has articulated this democratically grounded view of judicial restraint with greater rhetorical power than the current chief justice in his dissent from the majority opinion in Obergefell v. Hodges (2015), the case that established a constitutional right to same-sex marriage. “This court is not a legislature,” John Roberts began, in a passage worth quoting at length.
Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be….
The people of a state are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every state to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law….
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” … As a result, the Court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia…. Just who do we think we are?
The Missing Principle of Restraint
Liberals and progressives will likely find all of this a little too much to stomach: Republican appointees talking nobly about the importance of deferring to democracy while a House committee investigates the efforts of the last Republican president (who appointed three of the current justices) to overturn the results of a democratic election; justices who just this past week struck down a 109-year-old state law regulating guns and a nearly 50-year-old constitutional precedent protecting the reproductive rights of women warning gravely about the dangers of high court hubris and extolling the virtue of judicial humility.
Yet the question remains: Will a Court now dominated by jurists reared in an intellectual culture that passionately rejects the entire approach to constitutional reasoning that made it possible for abortion rights to be asserted in the first place allow other, supposedly equally mistaken precedents to remain standing? I really can’t see it.
Now that doesn’t mean other earthquakes will take place right away. It could be that Roberts, who tends to favor restraint somewhat more consistently than his colleagues, will succeed in persuading his fellow conservatives to act with somewhat greater circumspection for a while. It could also be that it takes some time for the right lawsuit or state law to make its way through the courts. (Privacy, contraception, sodomy, and same-sex marriage are pretty widely accepted and even positively affirmed these days, leaving it an uncertainty just where or when such a challenge might arise.)
But that’s different than saying the other five conservatives on the Court are following a limiting principle to keep them from knocking down precedents they’ve been reared for decades to consider profoundly flawed, and even pernicious.
I, for one, see no evidence those justices are guided by any such principle. If that’s correct, it means there are likely to be more earthquakes in our future—at least so long as the right maintains control of the Court.
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I see a number of issues here. The first is that the rights established under the "privacy" guarantee rights to all citizens. Returning these to the states would mean depriving citizens of some states rights that citizens in other states enjoy, making them a different class of citizen depending on the state in which one lives. Secondly, I think these rights could be defended on religious freedom grounds. Some, like Obergefell, could be defended on contract law as marriage in the eyes of the state is a contract that 2 people enter into. The defenders of these rights have to become more aggressive on creating cases to challenge these decisions of the Robert's court. Also, the Supreme Court could be expanded to 13 to keep the number of justices equal to the numer of circuit courts. All I can say is I'm glad I live in NJ and not in TX, MS, and other red states!
Excellent piece. I think too many are drawing comfort from Alito’s supposedly self-limiting statements, when all those statements effectively say is that those other cases will stand or fall on their own merits if/when challenged. Hard to see why this same five-person majority would not apply the same legal reasoning as in Dobbs to overturn those other cases, unless perhaps one or more of those other four justices were only persuaded to join in Alito’s opinion because of the inclusion of the self-limiting statements and because such justice(s) actually would not use the same legal reasoning to strike down those other cases. (Right up until doing so, of course.)