Why rewrite Brown, Roe, and Obergefell?

Three of the most important Supreme Court decisions apparently needed reboots.


Today, Jack Balkin announced his new book, titled What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision. Balkin wrote two similar books in the past: What Brown v. Board of Education Should Have Said (2001) and What Roe v. Wade Should Have Said (2005).

Without question, BrownRoe, and Obergefell are among the most important Supreme Court decisions of the last century. Why are they important? These decisions are not models of clear judicial reasoning. Nor do these cases establish doctrine that could be applied generally in other cases. Rather, these cases are important because of the outcome reached. Brown declared unconstitutional segregated public school education. Roe declared unconstitutional certain restrictions on abortion. And Obergefell declared unconstitutional prohibitions on same-sex marriage.

Most supporters of these decisions could care less what came between the caption and "It is so ordered." The reasoning was irrelevant. Every year when I teach these, students are shocked at how thinly reasoned Brown is. They are surprised that Roe actually reads like a piece of legislation. And they struggle to identify the precise holding of Obergefell.

Justice Scalia speaks for me, at least:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity," I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

It is not surprising that law professors feel compelled to "rewrite" these decisions. I admire Jack's project. He and his colleagues are trying to bolster the work of Justices who could not, or perhaps would not, write strongly reasoned legal decisions. Every franchise needs a reboot. Maybe Christopher Nolan can take a look at the Eleventh Amendment.

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  1. “Life, liberty and the pursuit of happiness”.

    Sure, the Declaration of Independence is not a binding document, but this premise as to the purpose of government has been cited in thousands of decisions, including many by SCOTUS.

    1. Quote Locke correctly: It’s “life, liberty, & property.”

      In Jefferson’s time, “property” had two meanings, much as “man” does today, so he used “the pursuit of happiness” so as to emphasize that his “yepman farmer” had rights to his property even though he may not meet the property requirement to vote.

      Both Jefferson and Locke considered these “God-given rights” that only God could arbitrarily deny — that no man or government of man could.

      And while Locke called them “rights of man”, today we call them “human rights.”

  2. Some people just cannot think straight. They can’t separate “is” from “ought.” And more subtly yet more important, they can’t separate the question of whether a prescription or rule seems locally good and just, from the question of who or what should be empowered to make that decision for whom and enforce it (thereby being empowered to make many other decisions, or even the opposite decision on the same issue at a future date). Many would even support a one-world government when presented with the right cause or pretext (and of course many do already).

  3. Does the Supreme Court have the power and authority to rewrite/rescind/or reissue an opinion that has already been entered into final judgement? Current practice on the live case/controversy would suggest no, but I don’t see anything in the actual text and history of the Constitution that would say it is absolutely a no.

    Many other jurisdictions outside of the US have such a practice. Our courts have methods of re-opening judgements and common law provides for the practice in many circumstances. Calling for the Court to do just that isn’t unheard of either. About ten years ago there was a push to get the Supreme Court to repudiate the Japanese internment case through various vehicles.

    Would be interested in hearing what the contributors of the blog think about the prospect of “rewriting” cases at the Supreme Court level.

    1. The Supreme Court has the power to overrule its prior holdings of law. Which is all that matters.

      1. Yes but does it have to wait until a case or controversy comes to its doorstep or can the Justice just “decide” to reissue an opinion on their own motion? Previous practice says “no” but I don’t think that is the final answer.

    2. The Supreme Court certainly has the ability to withdraw and revise opinions, and occasionally does (generally to correct minor factual misstatements). To my knowledge, this takes place between the time the slip opinion is released, and the time it’s published in the U.S. Reports. I agree it would be a little questionable to “revise” an opinion that was issued 50 years ago when none of the justices remain on the court, but I doubt there’s a rule saying it can’t be done so much as the reality that no one has ever tried to do it.

      1. I think that is the ultimate answer. Can the court, on its own motion, amend, rescind, or overrule a previous decision? Yes. Has it done so? No.

        Who would rule on if that is a permissible power of the court? That is where it gets interesting. Of course it would be the Court itself. The only check in our constitutional framework would be Congress impeaching the Court (or maybe tinkering with its statutory jurisdiction, but if the Court holds it is an implied constitutional power that would trump the statute.)

        1. Congress has the authority to limit the Supreme Court and Congress and the President have the ability to change the court, pack it, or make other adjustments that could change it from a 6-3 right-wing conservative Catholic majority to some other mix.

          “Court packing” is just as legal as not reviewing and voting on a candidate for the Supreme Court. Do you really want to go there? Because if the court gets aggressive in the way you’re implying, that’s where we’ll be heading.

          1. Cool down man. I was not suggesting anything. Was asking an academic kind of question using hypotheticals.

        2. There’s some discussion of this issue in Agostini v. Felton.

    3. Well the Canadian Supreme Court can be outright ignored — see Ford v Quebec and the ban on any English word on commercial signs (e.g. “hamburgers” in “McDonald’s Hamburgers.”


  4. “Maybe Christopher Nolan can take a look at the Eleventh Amendment.”

    Tenet tried, but unfortunately even Nolan couldn’t make sense of it. Soon as he got to trying to find any reason Hans is correct it all went south.

  5. Rewriting Supreme Court decisions has been the law professor’s stock in trade forever. Brown and Roe have been rewritten many times over the last several decades. Obergfell is comparatively new, though there have been attempts already.

  6. “Most supporters of these decisions could care less what came between the caption and “It is so ordered.” The reasoning was irrelevant.”

    That’s pretty much it, though I recoil from the moral equivalence between the Brown decision, which actually addressed an evil – racial discrimination – which was in the contemplation of the framers and adopters – and the two other decisions.

    But the point is the Roe and Obergefell decisions reached the politically correct result, anyone who pokes too closely into the reason is a hater, so just let them be, right?

    1. The problem with these three decisions is that they are legislation and not judicial rulings. They are legislative fiats which can not — by definition — be legally supported.

  7. You forgot to mention Dred Scott, the freedom to define and express ones identity includes the freedom to own a slave.

    1. It’s a deeply personal decision.

    2. Not really, since owning a slave involves defining and expressing somebody else’s identify for him.

      1. What would you call having an abortion?

    3. Wasn’t Dred Scott more than a century ago? 😉

  8. Most supporters of these decisions could care less what came between the caption and “It is so ordered.”

    True of most, if not all, decisions.

    1. Remember when the SCOTUS ruled in favor of Masterpiece Cakeshop by explictly narrowing their focus to that one commitee showing “bias against religion”, and very carefully did not rule on anything else?

      And remember how it was immediately reported as if the SCOTUS had declared that bakers weren’t covered by non-discrimination law?

      Yeah. Very true of most, if not all, decisions.

  9. IMHO, Brown should have been an easy case. Plessy was based on the notion of separate but equal. Which from the beginning was a total fraud. In reality, in every jurisdiciton in which de jure segregation was the rule, separate but equal was never intended, and never happened. Separate but equal was as fictional as a pink unicorn.

    Problem is, Anglo-American law rests heavily on the distinction between law and fact. Ending segregation that way would have required numerous trials and fact finding, which would have been almost impossible to do. So the Court had to come up with some sociology masquerading as Constitutional law.

    So my preferred opinion:

    We take judicial notice that the basis for Plessy, separate but equal, was never intended to be the case, and six decades of practice has shown has never been the case. The Fourteenth Amendment was not drafted for Never-Never Land. The practice of de jure segregation violates the 14th Amendment and is illegal.

    1. That’s how I’d do it. Separate but equal was never equal, because nobody who wanted separate would tolerate equal. The whole point of separate facilities was so that they could be unequal.

      Kind of a universal as applied unconstitutionality.

      1. How is that different from what the opinion actually said?

        1. It opened the door to ban personal bigotry and render freedom of association a lesser right?

          1. How did it do that?

            1. I suppose you could argue that the backlash to Brown is what precipitated the worsening race relations going into the 60s, which lead to the signing of the CRA in 1964, but I feel that’d be confusing Brown causing the CRA, with both Brown and the CRA being caused by racism and bigotry.

        2. Read the opinion and you will find out how.

        3. Brown, IIRC, held that the mere fact of separation was, by itself, enough to render the education unequal. NOT that all instances of separate were factually unequal due to the motives of those demanding separation, as I would have held it.

          It, essentially, held that the inequality wasn’t contingent upon the facts, or the relative nature of the facilities or services. Unsympathetically characterized, whites got to have access to the white facilities, and blacks didn’t, and THAT was the nature of the facilities being unequal.

          On a very deep level, Brown actually denied the equality of blacks by doing this, because they never would have reasoned that way if you just swapped colors.

          1. So you would like it to have been a segregation as applied was unconstitutional, not that segregation is generally facially unconstitutional.

            So as long as those drinking fountains are the same quality, it’s constitutionally fine to keep one for whites and one for coloreds.


            1. That’s telling, yeah. It tells you I actually read the 14th amendment, which specifically demands equal, not together. They’re not the same concept.

              But you’re missing, or maybe evading, the fact that I’d have arrived at the same conclusion. Just for a different reason: Not because separate is inherently unequal because whites get to enjoy the presence of other whites, and blacks don’t. Which is the reasoning of Brown.

              Because history has adequately shown that separate never IS factually equal! And we shouldn’t ignore that.

    2. “IMHO, Brown should have been an easy case.”

      It was 9-0 ….

  10. I’m Blackmun.

    (I know that’s not Christopher Nolan’s reboot.)

  11. You know, you could have just said “Griswold v. Connecticut and everything that followed”. Would have also snagged Loving v. Virginia and Lawrence v. Texas to boot.

    That said, if the lawyers and courts weren’t so adamant at ignoring the 9th Amendment, most of these could have been written as simply as “yeah, this is one of those unenumerated rights covered by the 9th.” But the plain text of the 9th is kryptonite to lawyers, so here we are.

    1. The phrase “retained by the people” implied that they’re referring to rights the people had already, in 1789-91. Or 1868, if you want to go ahead that far.

      The people who ignore the 9th Amendment are wrong in their conclusion, but they at least recognize how the 9th would be interpreted in practice “the enumeration of certain rights won’t stop We, the Courts, from making up others to suit our own notions of what’s right.”

      1. Ah yes, the old Scalia argument of “fuck the disenfranchised, that’s why.” I can’t imagine why it isn’t more persuasive beyond folk that want to fuck the disenfranchised.

        1. I’m not sure what that even means.

          If policy decisions are made by unelected judges, wouldn’t that disenfranchise the voters at least as badly as requiring ID from them?

          1. I’m not sure what that even means.

            Scalia once said (paraphrasing) that the courts should only recognize rights that were recognized when the constitution was drafted. When Kennedy pointed out that this would mean the the courts would always be bound by the biases and prejudices that were popular in 1789, Scalia said “good”.

            And (dis)enfranchisement is about more then just voting, though that is one of the common contexts you hear the term these days.

            1. To use a phrase which I don’t think is original with me – the Constitution sets up a floor beneath which the government cannot go (in theory). But statutes and constitutional amendments can raise that floor.

              The question is whether legal changes should be made by the people through the processes of representative government or through the Supreme Court – which, incidentally, brought us Dred Scott and other “enlightened” decisions.

              1. PS – If the Supreme Court can make legal changes, then what’s to stop them from doing what in fact they have done, and get rid of rights which the intelligentsia consider outdated.

              2. AKA, “fuck the disenfranchised”.

                You can slather all the lipstick you want on that pick, it doesn’t change that it’s a pig.

                1. “AKA, ‘fuck the disenfranchised’.”

                  That’s a fairly broad paraphrase you just did there.

                  As for your porcine preferences, that’s between you and a consenting pig.

                  1. Would you prefer “Fuck you, I got mine”? Or just a broad “Fuck you, that’s why?”

                    Because you aren’t actually arguing the point, you’re just trying to make it sound fancy.

                    And P.S? I have no stock in “natural law”; the only thing that guarantees rights is the barrel of a gun. So no, the obvious truism that people (including people in power) can change their mind does not mean they were wrong to change it in the first place.

                    1. I wasn’t simply more “fancy” than you in my arguments, I was more substantive.

                      You seem to have the impression – something so obvious to you as to obviate the need for proof – that Supreme Court justices unmoored from the Constitution’s text and history are going to be more attuned to the plight of the disenfranchised than if we rely on the alternative of keeping the Constitution as it is and making necessary changes through the processes of representative government.

                      When your proposition actually comes to the test of history, then reality intervenes.

                      The Supremes found it expedient to exempt the states from much of the Bill of Rights, and much of the Fifteenth Amendment – the latter literally is supposed to protect the disenfranchised but the justices, with their activism, found ways of getting around it. Likewise with the Bill of Rights, which for a long interval they replaced with a “close enough for government work” standard in cases such as Palko and so forth.

                      Add in activist subversion of the right to property, etc., and in short the case is pretty much the opposite of what you suppose. Surprisingly, leaving constitutional change in the hands of the Supreme Court has been bad for children and other living things.

                    2. Here’s a question for you – have activist judges proven reliable in protecting, let’s say, the Second Amendment rights of disfranchised populations?

  12. Obergefell and the preceding case – Windsor – were well reasoned. None of the consequence that the God squad promised have come to pass. The prose in the majority opinion seems entirely irrelevant in contrast to the effect.

    1. The very fact that this reasoning is so contested argues against it being well-reasoned.

      1. Go down the list of folks who are, five years later, still “contesting” Obergefel, and to a one what you’ll see is a list of people who were unpersuadable by reason.

        So no. That pile of sore losers argues nothing more then their lack of character.

      2. The very fact that this reasoning is so contested argues against it being well-reasoned.

        That’s a laugh of outcome oriented nonsense.

        Do you say that about Citizens United? Or Shelby County?

    2. One of the predicted consequences was that refusal to participate in SSM ceremonies would become a violation of public accommodation laws. How has that worked out?

      1. It worked fine for a few years to rile up the base, but it’s largely lost it’s steam outside of so-con circles ’cause most folk have noticed that the sky isn’t actually falling.

        Inside courtrooms, of course, it never worked, for the obvious fact that public accommodation laws are separate from marriage laws, and most of the (in)famous “baker and photographer” cases predate legal SSM in their jurisdictions.

        Which is to say, Bellmore, that you remain either (A) deeply confused by cause and effect, or (B) an intentionally deceptive asshole.

        1. You made a clear and persuasive argument. Was the personal attack really necessary?

    3. “the God squad”

      Does this refer to the Supreme Court justices who, in 1972, unanimously declared that claimants for the right to same-sex marriage had failed to present a substantial federal question?


  13. Every year when I teach these, students are shocked at how thinly reasoned Brown is. They are surprised that Roe actually reads like a piece of legislation. And they struggle to identify the precise holding of Obergefell.

    Hmmm. This might be a bit idiosyncratic to your classroom. Such was not my experience in law school. Though I was pre Obergefell.

    1. Yes, but presumably you went to a good law school.

    2. Nah, my con law teacher explicitly came out and said Brown was a mediocre-at-best opinion for similar reasons, and he was politically Blackmun’s opposite.

  14. If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. –Justice Scalia

    I have it on good authority that the day after Bush v. Gore was decided, Justice Scalia was seen going about town in a burqa.

  15. Great quote by Scalia.

    It’s too bad that Holmes holding in Buck v Bell can’t be applied to the Supreme Court itself:
    Three generations of imbeciles are enough.

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