The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.