Generally good analysis, but the Supreme Court can only overrule these other precedents if someone finds an occasion to bring a lawsuit challenging them. I can't think of how that could happen unless some state tries banning contraception, or outlawing sodomy, or defining marriage as sexually binary. And I'm not sure there's any state so trollingly red that the voters would tolerate that.
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.)
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!
Will Saletan in The Bulwark has written an interesting analysis that points out that Alito’s self-limiting statements in Dobbs about the state’s interest in potential life as the factor distinguishing abortion from other liberty-protected privacy rights come from (wait for it) Roe and Casey, the two cases Dobbs does expressly overrule.
I find it eternally perplexing that so many conservatives seem all too willing to allow "the democratic process" to decide what constitutes a right, rather than err on the side of More Rights, The Better, and use the State as a way of securing and protecting those rights, be they enumerated or not. The "Don't Tread On Me" types don't mind treading on others when it aligns with their priors.
Generally good analysis, but the Supreme Court can only overrule these other precedents if someone finds an occasion to bring a lawsuit challenging them. I can't think of how that could happen unless some state tries banning contraception, or outlawing sodomy, or defining marriage as sexually binary. And I'm not sure there's any state so trollingly red that the voters would tolerate that.
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.)
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!
Will Saletan in The Bulwark has written an interesting analysis that points out that Alito’s self-limiting statements in Dobbs about the state’s interest in potential life as the factor distinguishing abortion from other liberty-protected privacy rights come from (wait for it) Roe and Casey, the two cases Dobbs does expressly overrule.
You were quoted it the Comments section of today's "The Morning Dispatch" - one from me and one from another subscriber.
I find it eternally perplexing that so many conservatives seem all too willing to allow "the democratic process" to decide what constitutes a right, rather than err on the side of More Rights, The Better, and use the State as a way of securing and protecting those rights, be they enumerated or not. The "Don't Tread On Me" types don't mind treading on others when it aligns with their priors.