The chaos and cruelty unleashed in late June by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which wiped out a half-century of constitutional protections for the reproductive rights—and thus the equal citizenship—of women in America, have been well documented. The ruling quickly led to a patchwork quilt of abortion bans differing from state to state and the prospect of new ones throughout the country, transforming what had been hypothetical scenarios into the stuff of nightmares.
They include tragedies like that of the ten-year-old rape victim in Ohio forced to travel across state lines to avoid compelled motherhood. The swarm of lawsuits challenging access to abortion pills by mail. The labyrinth of obstacles confronting those in states where abortion is now banned or heavily restricted who seek safe and legal out-of-state options for terminating pregnancies—for themselves or a patient, friend, or family member—including the knowledge that their travel and medical inquiries might be subject to surveillance and even obstruction or retaliation. The fear of health care professionals and pharmacists that providing treatments to preserve the life of someone undergoing a heartbreaking miscarriage could expose them to criminal prosecution for allegedly terminating a pregnancy. Not to mention the potential crippling of IVF procedures sought by couples who would otherwise remain childless.
As the dissent in the case—written jointly by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—pointedly observed, some states might “criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion,” and “as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.”
Dobbs was in no way the removal of the final brick in a steadily crumbling wall of protections for reproductive autonomy. The course of the law over the half-century separating Dobbs from Roe v. Wade (1973) had witnessed no erosion in the principles of personal liberty and equality that had been embodied in pre-Roe decisions. On the contrary, these principles had been continually extended during those years. Roe had built on decisions like Loving v. Virginia (1967), protecting interracial marriage; Griswold v. Connecticut (1965), affirming the right of married couples to engage in sex without risking procreation; and Eisenstadt v. Baird (1972), extending Griswold from married couples to all individuals, married or single. And Roe had in turn furnished the foundation for decisions like Lawrence v. Texas (2003), upholding the right of consenting adults to have sex with partners of any gender, and Obergefell v. Hodges (2015), affirming the right of people to marry those they love regardless of sex.
Far from the culmination of a gradual trend toward government control over people’s intimate lives, the decision in Dobbs—no less shocking because a draft of it had leaked nearly two months earlier—felt like a bolt from the blue. “To hear the majority tell the tale, Roe and Casey [v. Planned Parenthood, 1992] are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law,” the dissent said, but as the cases listed above demonstrate, “That is not true.” Observers had to conclude that only the changed composition of the Court during Donald Trump’s one-term presidency and the formation of a five-justice bloc committed to a religiously inflected political agenda could explain the sudden shift. The dissent’s blunt comment is undeniable: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed…. Today, the proclivities of individuals rule.”
Led by Justices Samuel Alito and Clarence Thomas, both avowed advocates of overturning Roe, the three justices appointed by Trump—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—followed their marching orders, but with anything but precision. They could claim only that, notwithstanding the importance of respecting the Court’s long-settled precedents, Roe had to be overruled because it was, as Alito put it in his majority opinion, “egregiously wrong from the start.”
What made it wrong, however, was far from easy to say. That “the Constitution makes no express reference to a right to obtain an abortion,” a point made as though it were some sort of discovery, in no way establishes that the Fourteenth Amendment’s protection of “liberty” from government deprivation “without due process of law” excludes control over one’s own body, not to mention the course—indeed, continuation—of one’s life. On the contrary, the Ninth Amendment’s explicit instruction that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” rules out any claim that the Constitution’s failure to list the right to bodily integrity among its “enumerated” protections excludes that right from those “retained by the people.”
Although many observers criticized Alito’s leaked draft opinion for failing even to mention the Ninth Amendment, the opinion as finally released was almost defiant in its dismissive treatment of that amendment’s rule of construction.1 The only thing the Court says about it in Dobbs is that “the abortion right” is not itself “founded…in the Ninth Amendment’s reservation of rights to the people.” But that is a wholly irrelevant observation and confuses the category of “rights” with the category of rules about how to read a text dealing with rights. Nobody has ever seriously claimed that the “abortion right,” or indeed any substantive right, could possibly be “founded” in a rule about how to read the Constitution. The Ninth Amendment is not the “foundation” of any group of rights but a directive about how constitutional decisions about rights are to be made. Searching for rights in it is akin to searching for actual pieces of lumber in a manual on how to build a house.
Were the Court’s method consistently applied and unmentioned rights systematically subjected to a more rigorous test for admission into the constitutional pantheon than those enumerated, any number of the rights we all take for granted would be second-class at best. They include the right to decide how to bring up one’s children (including the choice between public and private school) and the right to become a parent.2
How would such second-class rights gain admission? By passing the Alito “test”: whether the right, defined at the most specific level (think “right to obtain an abortion,” not “right to bodily autonomy”), although unmentioned in the Constitution, is nonetheless “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” But as many critics and the dissent made clear, that test is plucked from a 1997 precedent, Washington v. Glucksberg, that the Supreme Court essentially jettisoned six years later in Lawrence. Moreover, Alito’s test is notoriously susceptible to manipulation and is calculated to exclude many rights associated particularly with the bodies and lives of women.3 It is thus unsurprising, but no less horrifying, to see the Alito opinion cite as precedent, without evident embarrassment, Sir Matthew Hale, a seventeenth-century English jurist who not only insisted that a “husband cannot be guilty of a rape committed by himself upon his lawful wife” but believed in burning women as witches.
Conspicuously absent from Dobbs is any coherent legal analysis—or anything that deserves to be called “analysis” at all—of why someone’s right to avoid compelled pregnancy, involuntary childbirth, and forced parenthood is not an essential part of the “liberty” protected by the Fourteenth Amendment (and perhaps even of the freedom from “involuntary servitude” protected by the Thirteenth). As a result, it’s the Alito opinion in Dobbs, and not Justice Harry Blackmun’s opinion in Roe, that is “not constitutional law and gives almost no sense of an obligation to try to be.”4 Put simply, Dobbs is a fiat issued by five justices simply “because they could.”5
There is one straightforward objection Justice Alito might have made to recognizing reproductive choice as essential to the “liberty” protected by the Fourteenth Amendment. He might have argued, as Justice Thomas did in his Dobbs concurrence, that the Fourteenth Amendment’s Liberty Clause (sometimes called the Due Process Clause) doesn’t protect any “substantive rights”—rights to engage in particular kinds of activity or to be secure from particular sorts of government restriction—but merely ensures that the government will follow fair procedures whenever it deprives persons of “life, liberty, or property.” Purely as a linguistic matter, the answer to that claim has always been that what the Constitution guarantees isn’t “due process” as such, but “due process of law”—with the understanding that government actions aren’t “law” at all if they are in reality just naked power dressed up in legal form.
While taking care not to join Justice Thomas in insisting that there’s no such thing as “substantive due process” that establishes constitutional rights, Justice Alito cites with approval earlier decisions expressing “‘reluctan[ce]’ to recognize [substantive] rights that are not mentioned in the Constitution” and notes how so-called “substantive due process has at times been a treacherous field for this Court.” But his opinion nowhere demonstrates that it has been a more treacherous field than, say, interpreting expressly enumerated First Amendment freedoms like those of speech, press, and religion or Fourth Amendment rights like those “against unreasonable searches and seizures.” He argues that “utmost care” is required whenever the Court is “asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” But he says nothing to show that this necessary caution supports digging out the ground long built upon by generations of judges, lawyers, and ordinary citizens who have treated reproductive protections and bodily integrity rights as among the most deeply entrenched in our society and culture.
Any argument relegating intimate personal rights to the mercy of political majorities because of their substantive character would have to reject decades of decisions holding that the Liberty Clause does in fact protect at least some substantive rights. Notably, it protects against infringement by the states of most rights enumerated in the Bill of Rights, which cannot be infringed by the federal government, including the current Court’s favorite, the Second Amendment freedom to “keep and bear Arms”—a freedom that Justice Alito, writing for the Court in McDonald v. Chicago a dozen years ago, held was part of the “liberty” to defend oneself.
Only Justice Thomas expressed the view that all those decisions (except, apparently, McDonald, on which he built without acknowledgment in New York State Rifle and Pistol Association v. Bruen, decided the day before Dobbs) were wrong from the start and should be overruled. These included the rulings on contraception, sexual intimacy, and same-sex marriage—though not, it seems, interracial marriage. However, the decisions could, he suggested, possibly be reinstated (in some undetermined way) by an interpretation of the Fourteenth Amendment’s promise that “no State shall make or enforce any law which shall abridge the privileges or immunities” of American citizens.
Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense, or the right to exclude the military defenders of the nation from one’s home “in time of peace” over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.
Particularly puzzling is Justice Kavanaugh’s insistence, in his separate concurring opinion, that the Court’s decision to let each state decide for itself whether and to what degree to protect the right to end a pregnancy will leave individuals who live in states where abortion is criminalized entirely free to travel to other states to obtain abortions without penalty. How does he know that? Because, he says, of “the constitutional right to interstate travel.” But no such right is expressly mentioned in the Constitution, any more than is the right to control what goes on in one’s own body. Both rights are at best implicit in the Constitution, not enumerated anywhere in its text. This is not to denigrate the existence or significance of the right to interstate travel, a long-settled part of what knits the states into an inseverable Union, or to undermine its protections for those helping women escape the clutches of states that ban abortion and make criminals of all those who facilitate it. It is simply to expose the glaring inconsistency in Justice Kavanaugh’s analysis, without whose vote there would have been no majority to overrule Roe.
To be sure, there are some spheres of activity where American law once insisted, in the Constitution’s name, on a hands-off policy, but that we no longer regard as presumptively off-limits for government regulation. For example, in the early 1900s judicial decisions treated “liberties which derive merely from shifting economic arrangements”6 involving the legal institutions of property and contract as basically immune from legislation restricting exploitation—primarily minimum-wage and maximum-hour laws.
Since the mid-1930s, however, these decisions have been very widely, if by no means universally, regarded as deeply mistaken. They were gradually eroded and essentially overruled by a series of decisions beginning in 1937 with West Coast Hotel v. Parrish and continuing through the 1950s (Williamson v. Lee Optical Co., 1955) and 1960s (Ferguson v. Skrupa, 1963) right up to the present, although some have noted the stirrings of a retreat from the post-1930s understanding in decisions using the freedom of speech to dismantle campaign finance regulation (Citizens United v. FEC, 2010) and to overturn other attempts at leveling the economic playing field.
The Court in Dobbs lumps the corpus of decisions repudiated as of the mid-1930s under the rubric of “discredited decisions such as Lochner v. New York,” the 1905 ruling striking down the New York law limiting the number of hours bakers could work. As the dissent puts it, the Court treats the rejection of those decisions as somehow justifying the repudiation of “a broad swath of this Court’s precedents,” beginning well before Roe and extending right up to the day Dobbs was decided.
The comparison is inapt. When the Court demoted the contractual freedom treated as foundational in Lochner from a fundamental right to just another interest to be resolved by political forces, it was building on cases decided earlier in the 1930s. These cases, notably Home Building & Loan v. Blaisdell (1934), viewed government’s power to revise contractual arrangements to meet changing social and economic conditions as implicit in every privately negotiated contract. No remotely comparable shift underlay the sudden upheaval in legal understandings and social expectations brought about by Dobbs, which the dissenters eloquently denounced as a radical setback for the equal status of women in America.
To the suggestion that its decision had any implications for the equal protection of the laws for women and men, the Dobbs majority responded with no attention whatever to the importance Roe had come to have in the lives of generations of women. Indeed, the Alito opinion gave the entire matter of gender equality the back of its hand, dismissing its relevance to the rightness or wrongness of Roe and Casey. The Court treated the very idea that rules limiting options for “pregnant persons” might be viewed as forms of “sex-based classification” and thus subject to “heightened scrutiny” as barely worth discussing. Oblivious to the irony, it claimed that the idea was in any event “squarely foreclosed by our precedents,” citing a widely reviled 1974 ruling about discrimination based on pregnancy,7 and not pausing to explain why that decision was entitled to greater respect than Roe, decided a year earlier, or why the 1974 ruling should not be deemed so “egregiously wrong” from the day it was decided that any respect it might have deserved as precedent was overcome by its manifestly erroneous character.
To support the idea that Roe and the 1992 reaffirmation of its core holding in Casey had no “sound basis in precedent” and could thus be safely overruled without causing damage to the fabric of the law or undoing the web of other decisions on which people had come to rely, the Court in Dobbs simply listed a series of rights, as though it was self-evident that they bore no similarity to the right to decide whether and when to terminate a pregnancy. These included the rights “to marry a person of a different race,…to marry while in prison,…to obtain contraceptives,…to reside with relatives,…to make decisions about the education of one’s children,…not to be sterilized without consent,…and in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures,” as well as the right “to engage in private, consensual sexual acts” and “marry a person of the same sex.”
But merely noting, as the Court did, that those rights did “not concern abortion” obviously fails to establish that they are not analogous to the right to reproductive autonomy. It is thus difficult to take seriously the statement by the Dobbs majority that its repudiation of the right to abortion will not ultimately serve as a precedent to rescind some or all of these seemingly similar rights, especially given the explicit statement in Justice Thomas’s concurrence that they are without foundation and that future litigants should attack them on the basis of Dobbs.
The Alito opinion concedes, as it must, that the majority cannot “pretend to know how our political system or society will respond to [its] decision overruling Roe and Casey.” But the well-organized, heavily funded, decades-old movement that brought about that decision is already turning to the other decisions, like Obergefell, that justices in the Dobbs majority have long denounced as without constitutional basis. We should take their persistence seriously: these are cases that that movement has attacked from the day they were decided. Moreover, insisting that the reasoning underlying Dobbs will not be extended to cases that some view as closely analogous—much as Bush v. Gore (2000) was said to be “limited to the present circumstances”—puts the Dobbs majority in the awkward position of either being duplicitous or conceding that its overruling of Roe was an arbitrary exercise of power, as the dissent noted: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
The Court comes closer to explaining itself when it says that none of the other threatened decisions involve the same “critical moral question” as that “posed by abortion.” But that “explanation” merely restates the question. It does nothing to explain why the manifestly controversial and obviously “critical moral questions” that each of those other decisions involved were better suited than abortion to be resolved by courts instead of legislatures—that is, by judicially withdrawing the answers from the “vicissitudes of political controversy” and placing them “beyond the reach of majorities.”8
The Court’s final reason for insisting that abortion is critically different bears close examination: “What sharply distinguishes the abortion right” from all those others is that abortion “destroys what [other] decisions call ‘potential life’ and what the [Mississippi] law at issue in this case regards as the life of an ‘unborn human being.’” But given such decisions as Griswold and Eisenstadt, which protect the right to use contraception, it must be not just the involvement of “potential life” but the survival of a particular “potential life” that marks the right protected by Roe as singularly vulnerable to the Court’s analysis. It’s the supposedly unique status of the fertilized ovum, its transformation into what some insist is a new human being, that must account for the Dobbs holding if it is to have the distinctive character that the majority opinion claims for it.9
That “the States’ interest in protecting fetal life,” as the Dobbs majority describes it, deserves judicial respect isn’t the issue: both Roe and Casey acknowledged as much in expressly upholding a range of state measures embodying and implementing that pro-life interest. Nor is the question of whether the Constitution “permit[s] the States to regard the destruction of a ‘potential life’ as a matter of any significance.” Of course it does. Nothing in the Constitution prevents states from regarding everything that has the potential to become a specific sentient creature, let alone a particular human being, as worthy of concern and protection—but only up to a point.
The decisive issue is whether that interest in a fetus’s life can properly be made by judicial decree into an interest so absolute that it completely eclipses the undeniably enormous interest of a pregnant woman in what goes on in her own body and what becomes of her own life. The latter is a secular interest that both the states and the federal government are bound to respect as a fundamental right. To deem the interest in “fetal life” as transcendent to the point of being sacrosanct in any jurisdiction that opts to elevate it above all concern for the bodily self-determination of the woman—if it does not demote her to the status of an involuntary vessel entitled to no more respect than other forms of collectively owned property—surely entails a most peculiar mix of the sacred and the profane: sacred in its unavoidable derivation from particular religious traditions, profane (or at least secular) in allowing each state to strike its own balance between the conflicting values of the survival of the fetus and the bodily integrity of the mother.
The Dobbs majority insists that its opinion isn’t based on any “particular theory about when the rights of personhood begin.” Accordingly, it leaves open the possibility that a fetus might not be “entitled to…the rights enjoyed after birth.” What strikes me as most alarming is the Dobbs majority’s insistence that, even if it is not yet deemed a legal “person” for constitutional purposes, the fetus—from the supposed “moment” of its conception—should be given federal judicial recognition as something (one might as well say “someone”) that any state may treat as entitled to more protection than the woman who gestates it.
Whatever anyone might have thought in 1868, when the Fourteenth Amendment was adopted, it has since become clear that “conception,” as I wrote in 1973 when defending Roe v. Wade,10 is “a complex and continuous process” of cell division followed by chromosomal recombination and in no sense “an objectively definable event”:
Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.
The attribution of metaphysical and legal status to a developing embryo from some particular point in time represents not a discovery of an empirical datum about reality but a choice, all but invariably grounded in one or another religious tradition or teaching, about what signals the creation of an individual human soul.11
I continue to believe that any liberty as basic to our secular constitutional order as a woman’s right to decide whether to use her body to deliver a new person into the world can be overridden only by countervailing social interests grounded, as John Rawls put it in A Theory of Justice, in secular “ways of reasoning acceptable to all” and resting on “a common knowledge and understanding of the world,” not on any inherently sectarian view. Think of this as part of what differentiates the “Republican Form of Government” guaranteed by Article IV of our Constitution from a theocracy in which divine edicts or biblical injunctions can supply conversation-stopping justifications for government restrictions on basic liberties.
The second-century theologian Tertullian told women: “You are the devil’s gateway: you are the unsealer of the (forbidden) tree,…the first deserter of the divine law;…she who persuaded him whom the devil was not valiant enough to attack.” A parallel theological teaching is that the presence of a new human life transforms a woman’s body from Satan’s gateway into a holy vessel akin to Mary, Mother of Jesus. It is little wonder that justices who view every instance of conception as a holy event would be inclined to treat the “moment” a new life is present in a woman as the moment from which any state is entitled to criminalize the termination of that life. It is but a short step from such a view to the dogma that the “moment of conception” marks the point at which any state may be constitutionally obligated to treat that life’s termination, whatever the reason, as a terrible crime. The Dobbs “compromise” making it a matter for each state to determine is no more consistent and stable than the 1857 Dred Scott compromise making the status of slaves and their descendants a matter for states to decide.
It is a fair inference from the First Amendment’s ban on “establishment of religion” that the Constitution should not be hijacked by any primarily religious movement or by a political movement that exploits religion as a Trojan Horse. Yet Dobbs followed—and embodies the approach of—a series of Supreme Court decisions systematically eroding the sometimes-maligned “wall” of separation between church and state. The current Court’s unmistakable determination to breach that barrier to government endorsement of particular religious beliefs reached its apex this past term in a ruling that treated a government employee’s “proselytizing on government property during a public school function” as “private, personal and quiet” when it was anything but, and was indeed highly coercive.12
The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs, replacing the compromise between life and liberty embodied in Roe and Casey with the absolutist claim that the presence of a potential life instantly and automatically transforms a woman’s body into a vessel that governments are free to regulate as they see fit. This is unlikely to be the final step on the treacherous path the Court has chosen.
Whether or not one sees Dobbs as barely concealed theocracy, what seems plain is that the opinion fails to provide any clear secular support for its conclusion that Roe was wrongly decided, much less that it was so demonstrably wrong that the reliance of generations of Americans on its basic outlines should have been all but entirely disregarded. That degree of certitude and hubris can only contribute to the growing lack of respect for the current Supreme Court and feed the mounting conviction that it is not a body composed of fair-minded jurists to whom we should entrust these kinds of questions.
Our government is one in which the views of the majority are supposed to resolve policy disputes subject only to the antimajoritarian protection of beleaguered minorities and fundamental personal rights.13 Add to that the fact that three fifths of the far-right Dobbs majority consists of appointees nominated by a president who lost the national popular vote and confirmed by senators representing distinct minorities of the nation’s population, and a picture emerges of a ruling clique assiduously pursuing a religiously imbued and highly partisan agenda imposing its ideological commitments upon a vast majority who have a very different view of the competing rights and interests involved. At its essence, that is tyranny by the minority.
This pattern, although without its obvious religious roots, was replicated in the Court’s ruling the day before Dobbs in New York State Rifle & Pistol Association v. Bruen. Bruen dramatically expanded—as protected by the Fourteenth Amendment’s Liberty Clause, no less—the right to carry concealed firearms of a kind unknown to the Second Amendment’s authors and ratifiers, in the name of a tendentious set of claims about the amendment’s text and its original meaning. Justice Thomas’s majority opinion—which managed to invoke the authority of the infamous Dred Scott decision, of all things14—was studiously inattentive to the dangers to public safety posed by the decision, dangers the six-justice majority swatted away as constitutionally irrelevant.
Complaining (without foundation) that the rights of gun owners protected by the Second Amendment had hitherto been relegated to second-class status, the Court gave no reasons for suddenly elevating those rights above all others protected by the Constitution, insisting that no countervailing considerations could be taken into account once a firearms regulation flunked the Court’s new purely historical test for Second Amendment rights. It is a test that automatically invalidates any regulation not closely analogous to one the framing generation supposedly would have deemed consistent with the “right of the people to keep and bear Arms.” But the “Arms” to which the new test applies are, needless to say, analogous to nothing that existed in 1787 or, for that matter, in 1868 (when the Fourteenth Amendment was ratified, resulting in the application of the Second Amendment to the states through the Liberty Clause). Seemingly unnoticed was the surreal nature of finding in the Constitution a fundamental liberty to carry a concealed instrument of mass slaughter in order to defend one’s body from attack, but no such liberty to defend one’s body from involuntary pregnancy.
The same pattern was replicated in the decision a week after Bruen in West Virginia v. Environmental Protection Agency. In that case, the majority held—gratuitously, given the absence of any actual regulation to which its analysis might be concretely applied—that the EPA is powerless to regulate greenhouse gases under the particular provision of the Clean Air Act at issue in the case. According to the majority, the problem wasn’t that the provision Congress enacted in 1970 didn’t literally authorize such regulation (it indisputably did). The problem was that the consequences to the economy of any regulation requiring a change in the mix of fuels the regulated industry used to generate electrical power would be too “major” for a mere administrative agency to impose without more specific (indeed, implausibly prophetic) congressional authorization.
It’s hard not to see this rogues’ gallery of decisions as reflecting little beyond the political party platform of the justices comprising the majority with respect to abortion, religion, guns, climate change, and the administrative state rather than any coherent constitutional philosophy. Indeed, when one juxtaposes the Court’s green light to government intrusions into the most intimate spheres of personal and spiritual life with its red light to government regulation of firearms, the energy industry, and presumably other areas of social life that its majority would prefer to see unregulated, what emerges is a lethal mix of regulation and deregulation that makes the Court’s pre-1937 laissez-faire stance look entirely reasonable by comparison.
At least the Supreme Court’s decisions of the early twentieth century were relatively consistent, including rulings in the 1920s that recognized the unenumerated rights of parents to direct the upbringing of their children, such as what languages to teach them (Meyer v. Nebraska, 1923) and whether to send them to private rather than public schools (Pierce v. Society of Sisters and Oregon v. Hill Military Academy, both 1925). The rulings of that time embracing the now-discarded “liberty of contract” and other doctrines restricting government’s ability to protect workers and consumers from exploitation were at least matched by rulings recognizing a private realm almost entirely beyond the reach of the state. Thus the cloud of judicial doctrine that hung over economic regulation a century ago at least had the silver lining of liberating personal life.
Today’s cloud has no such lining. The Court’s perverse decisions, without a hint of irony, allow government to intrude into the bedroom and invade the integrity of the body while holding government at bay with respect to regulating the boardroom and, for that matter, limiting corporate expenditures to influence political campaigns.
Especially concerning is the degree to which this topsy-turvy judicial approach—arrogantly heedless of the human and environmental consequences of the jurisprudence it so ruthlessly imposes to turn the world upside-down, and seemingly insensitive to the erosion of public respect for its judgments and integrity—has come close to ensuring its self-perpetuation. It has done so through a jurisprudence that recklessly trashes bipartisan federal laws dating to the mid-1960s protecting voting rights, while systematically looking the other way as partisan gerrymandering makes state legislatures less and less representative of their populations as a whole and of minority populations in particular.
And it has amplified the threat to fair representation by announcing, on the final day of its latest term, that it will hear arguments this fall in a case from North Carolina, Moore v. Harper, that invites the Court to embrace a radical and constitutionally dubious theory that would liberate state legislatures from being tethered to their own constitutions by the states’ highest courts. As such prominent conservative jurists as former federal judge J. Michael Luttig have warned, the result would be to transform the already antidemocratic electoral college system into one that essentially invites gerrymandered state legislatures to substitute their preferred presidential candidate for the one chosen by the majority of the state’s people.15
If this were to happen—and it would take but one justice in addition to the four (Thomas, Alito, Gorsuch, and Kavanaugh) who have already signaled their acceptance of this theory—future Supreme Court nominees would likely be as reactionary as those of the recent past rather than offering at least the hope of some ideological balance over time. And as the Court continues on the path of replacing long-settled individual rights with religiously inspired mandates, the odds would increase that the rules under which we live will reflect the preferences of ever smaller minorities.
It is this bleak picture that has led me and some others who, like me, participated in the Presidential Commission on the Supreme Court of the United States to see this as a “break the glass” moment. Some of us have reluctantly advocated enlarging the Court from nine to thirteen and appointing four new justices to redress the extreme and seemingly self-perpetuating imbalance resulting from the way it was stacked during the four years of the Trump presidency—a step we realize has little chance of being enacted in the current political environment.16 But the current political environment might not be permanent. Or at the very least we must not, as the midterm elections approach, treat it as though it were. The unprecedented level of public outrage at recent trends in the Supreme Court’s decisions could upend political expectations in ways none of us can foresee.
A telling example, and perhaps a harbinger of things to come, was the overwhelming rejection on August 2 by the voters of as conservative a state as Kansas of a referendum measure that would have repealed a state constitutional right to bodily integrity that its highest court had interpreted in 2019 as protecting a right to abortion. The contrast between that unanticipated result—which Justice Alito would doubtless insist was wholly consistent with his expressed desire to return the issue to “the people and their elected representatives”—and the barely concealed belief of the majority in Dobbs that they were doing the Lord’s work by protecting unborn human life was impossible to miss.
It came starkly into view when Justice Alito, in a speech to the Notre Dame Religious Liberty Summit in Rome, tastelessly mocked the world leaders and others who had criticized his Dobbs opinion, describing their reactions as proof that Christianity was under assault throughout the world and treating them as evidence that “religious liberty is worth special protection.” It will be interesting to see how much protection he is prepared to give the claims to religious liberty of litigants like the seven Florida clergy members—three Jews, two Christians, one Unitarian Universalist, and one Buddhist—who are arguing in recently filed lawsuits that their ability to practice their faiths is violated by the state’s new abortion ban.17
We might dare to hope that a political alignment will emerge that makes it possible for Congress to enact a nationwide codification of Roe and Casey.18 When such a law is challenged before the Supreme Court, as it no doubt would be, we must hope that one or more of the radical jurists who currently control its decisions—despite their pious insistence that the public’s aversion to their interpretations of the Constitution are of no proper concern to them—will rethink their willingness to ravage the social and legal landscape and wreak carnage on widely shared cultural expectations, lest they invite outright rebellion against their tyrannical rule. Until they do, the Court they steer risks becoming not what Alexander Hamilton in Federalist 78 called our government’s “least dangerous branch,” but the most dangerous.
September 22, 2022
The Party’s Over
‘Hell, Yes, We Are Subversive’
For a particularly clear explanation, see Damon Root, “Alito’s Abortion Ruling Overturning Roe Is an Insult to the Ninth Amendment,” Reason, June 24, 2022. See also my The Invisible Constitution (Oxford University Press, 2008), pp. 7–8, 145–148. ↩
See my “The Right to Become a Parent Is Now at Risk Too,” The Atlantic, June 14, 2022; and Kendall Ciesemier, “Leave My Disability Out of Your Anti-Abortion Propaganda,” The New York Times, July 31, 2022. ↩
See Jill Lepore, “Of Course the Constitution Has Nothing to Say About Women,” The New Yorker, May 4, 2022. ↩
The Alito opinion in Dobbs makes a point of quoting this language from what John Hart Ely “famously wrote” about Roe in his “unsparing criticism” of that decision in “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal, Vol. 82, No. 5 (April 1973). Alito was a student and Ely a professor at Yale Law School at the time Roe was decided. ↩
See Linda Greenhouse, “Requiem for the Supreme Court,” The New York Times, June 24, 2022. ↩
See Kovacs v. Cooper (1949). ↩
Geduldig v. Aiello (1974) held that provisions of state law treating “pregnant persons” less favorably than otherwise similarly situated “nonpregnant persons” were not subject to the more critical judicial scrutiny that the Court, in decisions dating to 1972, had held applicable to laws discriminating on the basis of gender. The theory underlying the majority opinion in Geduldig was that, because the line the challenged state law drew between pregnant and nonpregnant persons did not divide the world into women and only women on one side and men and only men on the other, the fact that only women are capable of becoming pregnant was constitutionally irrelevant. ↩
The quoted language is drawn from the majority opinion of the Court in West Virginia Board of Education v. Barnette (1943), holding that government lacks authority by virtue of the Freedom of Speech Clause of the First Amendment to penalize public school students for refusing to salute the flag of the United States. ↩
Even on the premise that the ovum’s fertilization transforms it into a new human being, the holding in Dobbs would at the very least apply to types of IUD that operate by preventing the implantation of the fertilized ovum in the uterine lining and to types of “morning after” contraceptives that might do so as well. See Rachel Frank, “Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity,” Yale Law Journal, Vol. 129, No. 1 (October 2019). ↩
“Foreword: Toward a Model of Roles in the Due Process of Life and Law,” in “The Supreme Court 1972 Term,” Harvard Law Review, Vol. 87, No. 1 (1973). The Alito opinion at several points implies, misleadingly, that my article took the position that Roe was wrongly decided. It did not. The opinion’s quotations from my article show only that I was critical of some of the Roe opinion’s reasoning. ↩
On this point, see Linda Greenhouse, “Religious Doctrine, Not the Constitution, Drove the Dobbs Decision,” The New York Times, July 22, 2022. Although religions differ widely on when an individual human soul comes into being—and differ, too, on whether there is such a thing and, if so, what follows from that—those are questions that virtually every theology addresses. ↩
Kennedy v. Bremerton School District (2022) held that a public high school football coach could not be terminated from his government employment for conducting a religious prayer at the fifty-yard line after each game, surrounded by the players on the team he coached, and that the First Amendment does not require asking whether the reasonable observer would treat that prayer as a government endorsement of religion. ↩
See United States v. Carolene Products Co. (1938), footnote 4. ↩
Justice Thomas, writing for the Court’s majority (all the justices but Breyer, Sotomayor, and Kagan joined the opinion), pointed to the fear driving the Dred Scott majority that, if African American slaves and their descendants could become citizens, it would follow that they could arm themselves and thus endanger Whites. Thomas cited that fear as evidence that, at least in 1857, a right to bear arms was assumed to be a part of citizenship and was thus a fundamental personal liberty. ↩
See J. Michael Luttig, “The Conservative Case for Avoiding a Repeat of Jan. 6,” The New York Times, February 14, 2022; and “The Republican Blueprint to Steal the 2024 Election,” CNN, April 27, 2022. ↩
See Nancy Gertner and Laurence H. Tribe, “The Supreme Court Isn’t Well. The Only Hope for a Cure Is to Add More Justices,” The Washington Post, December 9, 2021. ↩
See Michelle Boorstein, “Critics Sue Over Florida Abortion Law, Say It Violates Religious Freedom,” The Washington Post, August 1, 2022. ↩
The House of Representatives has already passed such legislation, the Women’s Health Protection Act (2021). ↩