Sunday, June 26, 2022

Will Dobbs lead to the undoing of other rights?

 We've all read Justice Thomas' concurrence in Dobbs by now and it's pretty frightening.  Not only is it way out of touch with our country, our society, and the world -- it threatens to put people in jail for basic things like obtaining contraception.  Hard to imagine...

David Lat wrote this piece at Esquire about whether this will actually happen.  Here's a snippet on why he thinks it won't:

Why isn’t there the same hunger on the right to ban, say, interracial or same-sex marriage that there is for banning abortion? As Justice Alito wrote in Dobbs, the critical difference between abortion and most other rights is that abortion destroys “potential life” or “the life of an ‘unborn human being.’” Or as pro-life advocate Karen Swallow Prior wrote in the New York Times on Friday, she and her fellow pro-lifers believe “that abortion unjustly ends the life of a being that is fully human”—which can’t be said of almost any other right.

In other words, while social conservatives might not view my marriage to another man as a real marriage, they don’t view me and my husband as murderers. In the eyes of social conservatives, abortion is uniquely evil—and Roe, by enshrining that perceived evil in constitutional law, is a uniquely bad decision. According to UC Berkeley law professor Orin Kerr in a thoughtful Twitter thread, “Within the conservative legal movement, Roe is thought to stand pretty much alone.”

For decades, Republican political candidates, including presidential candidates, ran on getting Roe overturned. For just as long, a slew of pro-life organizations devoted themselves to getting Roe overruled. I’m unaware of presidential candidates campaigning on reversing Obergefell v. Hodges, the 2015 decision that recognized the right to same-sex marriage, or of organizations trying to revisit Griswold v. Connecticut, the 1965 decision that recognized the right of married persons to buy and use contraception.


I think it’s unlikely. First, because Justice Thomas wrote this in a separate concurrence, not in the controlling opinion of the Court, it represents only the views—the academic ramblings, really—of Justice Thomas. He’s fond of floating esoteric or controversial legal theories in solo concurrences, joined by none of his colleagues. And most of the time, they go nowhere. If he actually wants to get these cases “reconsidered,” he’ll need four other votes, which he almost certainly doesn’t have.

Second, contrary to the claims of many commentators, Justice Thomas wasn’t actually arguing for getting rid of all legal protection for contraception, same-sex marriage, and similar rights. Rather, he was calling for reconsidering the legal doctrine called “substantive due process,” which claims that the Constitution’s protection of “due process” doesn’t just guarantee proper “process” (like a fair trial), but also certain “substantive” rights not mentioned in the Constitution (like abortion). Many legal conservatives loathe substantive due process because they believe it gives unelected judges too much power to make up new rights.

But as Justice Thomas explained in his concurrence, if the Court were to heed his call to ditch substantive due process, the question would then become “whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” So various rights currently protected under substantive due process might still be protected by the “privileges or immunities” doctrine, mentioned by Justice Thomas, or other doctrines or provisions not mentioned by him, such as the Equal Protection Clause.

Third, even if a Supreme Court precedent protecting a certain right gets overruled, the right doesn’t go away overnight; it just gets decided by other institutions, usually state legislatures or the U.S. Congress. As Justice Brett Kavanaugh wrote in his own Dobbs concurrence, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.”

This is why I’m not as worried as many about the future implications of Dobbs, in terms of either Justice Alito’s opinion for the Court or Justice Thomas’s concurrence. Then again, I might be wrong—and it wouldn’t be the first time. In 2018 and again in 2021, I predicted that Roe would not be overruled. So much for that.

I just expressed skepticism toward Justice Thomas’s solo concurrences, which are often like the mutterings of your crazy uncle at Thanksgiving. You can safely ignore your crazy uncle—but you can’t ignore Justice Thomas, since every now and then, he turns out to be crazy prophetic.

In 1997, in a case called Printz v. United States, Justice Thomas wrote a solo concurrence suggesting that the Second Amendment protected an individual right to keep and bear arms. At the time, this was contrary to Supreme Court precedent, and his view was dismissed by many as kooky. But eleven years later, in D.C. v. Heller, Justice Thomas’s once-fringe view became the law of the land.

Then this past Thursday, in New York State Rifle & Pistol Association, Inc. v. Bruen, Justice Thomas wrote for the Court in extending the reasoning of Heller, which focused on keeping guns for self-defense at home, to the carrying of firearms in public. So sometimes Justice Thomas’s improbable theories wind up getting enshrined in law, even if it takes a few years. And the current Court is far more conservative than it was when it decided Printz, perhaps making Thomas a better barometer today of where the Court might go in the future.

To those worried about post-Dobbs America: don’t panic, but don’t let down your guard. Go out there and win some elections—which is the only way to bring change to the Court, and to the country.



Anonymous said...

Elections have consequences.

Anonymous said...

I understand David's view (hope) but read justice alito's dissent in the same-sex marriage case. He uses the exact same phrasing "not a deeply rooted historical right." as a principled (Ha Ha) conservative with the votes and the power, why would he not seek to overturn a decision that is also 'wrongly' decided? He can't say "here are my principles but I'm just going to ignore this line of really bad cases." And there are politicians floating challenges to contraceptives, same sex marriage, interracial marriage, etc.

Anonymous said...

How ironic Thomas ignores the Loving decision while he rants about other's privacy rights. But it shows the hypocrisy of this court and many republicans. They preach anti-abortion but if its their daughter or wife that gets raped, they will find a way to get an abortion. The justice in an interracial marriage ignores the Loving decision while promising to come after privacy rights of everyone else. This is fascism plain and simple. "We have the power and will use it". Block appointees and then rush appointees and have candidates lie under oath. In 1864 there was a Supreme Court vacancy and Lincoln purposely waited till after the election to nominate someone because of the divided nation. The rule of law is dead in this country.

Anonymous said...

He thinks this is a fair, academic argument, but doesn’t get that a large % of the right wing gop hate him. These are hateful people who don’t care who or what is their next social issue to drive votes. I am also always amazed at my fellow Jews who support the gop or don’t see its actions (like David) as a threat to “them”. Don’t they realize what a sizable chunk of the party thinks of them?

Anonymous said...

Supreme Court has rewarded states that defy its clear pronouncements. That’s why the district court and court of appeals both struck down the Mississippi law. Then, in upholding the MS law, Court did not even reach narrow issue of 15 week ban (which Mississippi passed in clear defiance of then-settled law) but took away all previously recognized protections. This is an invitation for states to defy any Supreme Court decision that they disagree with.

Anonymous said...

Lat's thinking exemplifies why the Democrats always will be losers. We tell you what we're going to do, and we methodically set out to do it. And the Dems think we are bluffing. We are not.

Your welcome.

Anonymous said...

Loving was based on equal protection, not substantive due process.

Anonymous said...

Loving was based on substantive due process:

"These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

These convictions must be reversed."

Anonymous said...

They came for the immigrants but I'm a citizen

Then they came for voting rights but I'm white

Then they came for effective assistance of counsel but I've never been charged with a crime

Then they came for reproductive rights but I'm a man

And so it goes.

Anonymous said...

@11:11am don't forget, "they came for the Establishment Clause (Carson v Makin), but I'm a Catholic . . ."

This Court appears bent on creating the United States of Saudi Arabia.

Anonymous said...

The very first sentence uses the word “also”. Why? Because the immediately preceding paragraph which you didn’t cite says this:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.11 We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

It’s important to read the whole opinion. The misinformation weakens any good argument you may have had.

Anonymous said...

to hang Lovings on due process would be to argue that those rights could be denied given due process.

Figg said...

But it's not just about Thomas' concurrence. The majority's attempt to distinguish those other cases because they don't involve the grave moral issue of the destruction of a potential life or life, is doctrinally very, very weak. Because those other cases dealt with moral issues too, according to the state legislatures who passed those laws and the dissenters who wouldn't have struck them down. Justice Scalia famously wrote in his Lawrence dissent that the majority opinion heralded "the end of all morals legislation." The fact that in a state legislature's view, abortion is "more" immoral that sodomy, does nothing to mitigate against the rationale of the Dobbs decision, which nevertheless permits states to proscribe or criminalize personal conduct, based on their moral judgments, and are not stopped from doing so by previously recognized constitutional guarantees.

Figg said...

I do agree the discourse on Loving could be tempered. The opinion's main rationale was that the equal protection clause prohibited racial classifications. A due process rationale does follow, but I think is more fairly read as an alternative basis for the holding. And the opinion notably does not use the phrase "substantive due process," although it seems pretty clear to me that's the kind of due process it's talking about. I haven't studied up on what other folks have said about whether Loving is a substantive due process case, but even if it is, I think it's hard to argue that it's not first and foremost an equal protection case, with whatever the due process holding is being an alternative holding.