Politico Symposium on Broader Implications of the Leaked Supreme Court Opinion Overruling Roe v. Wade

Various experts, including co-blogger Josh Blackman and myself, discuss whether the draft opinion would threaten other constitutional rights, if adopted by the Court.

The Supreme Court. (NA)

 

Politico has published an insta-symposium where various legal commentators discuss the issue of whether Justice Samuel Alito's draft Supreme Court opinion overruling Roe v. Wade would also imperil other prominent precedents protecting individual rights, particularly those involving contraception, same-sex marriage, and anti-sodomy laws.

Contributors include co-blogger Josh Blackman, Prof. Mary Ann Case (University of Chicago),  Prof. Mary Zeigler (Harvard), former US Attorney General Alberto Gonzales, and others.  The contributions are divided between two different URLs. See here and here.

There is a wide range of views among the participants. Here is my contribution:

While such concerns [about the fate of same-sex marriage, contraception, and anti-sodomy laws] are understandable, they are overblown.

Alito's draft opinion relies on precedent holding that the Due Process Clause of the Fourteenth Amendment only protects substantive rights that are 'deeply rooted' in history. It can be argued that these other rights also lack 'deep' roots. But Alito also emphasizes that Roe is "fundamentally different" from precedents involving "intimate sexual relations, contraception, and marriage," because abortion arguably involves destruction of innocent "fetal life." This crucial difference is the main reason why Roe continues to draw vastly more opposition than these other rulings.

In addition, decisions protecting same-sex marriage and intimate sexual relations need not rely on the Due Process Clause alone. Laws discriminating against same-sex relationships also violate the Equal Protection Clause because they discriminate on the basis of sex. Just two years ago, the Supreme Court ruled that discrimination against gays and lesbians qualifies as sex discrimination under the Civil Rights Act of 1964, in a decision written by conservative Justice Neil Gorsuch, and joined by Chief Justice John Roberts. Much the same reasoning applies in the constitutional context.

Furthermore, history shows that major Supreme Court decisions protecting rights only get reversed if there is a powerful movement seeking that outcome, such as the pro-life movement in the case of Roe. By contrast, there is no longer a strong movement seeking abolition of same-sex marriage (conservative politicians rarely advocate abolition anymore, perhaps because same-sex marriage now has overwhelming public support), and even less appetite for banning contraception (which is supported by some 90% of Americans), or bringing back anti-sodomy laws.

A ruling reversing Roe v. Wade might make judicial recognition of new 'substantive due process' rights less likely. But it is unlikely to threaten major existing rights that enjoy far broader support than abortion. [highlighting added by Politico].

Interestingly, Josh Blackman reaches much the same conclusion for some of the same reasons. It's a comparatively rare point of agreement between us!

Comments

[Stephen Lathrop]

Nothing about reason applies to the case at hand. This case is not about arguments, legal reasoning, precedents, the Constitution, religion, or any other general topic. It is about the whip-hand of power, assembled bit-by-bit over decades, to put it beyond reach of correction on the nation's highest court.

Having lied, plotted, and acted to achieve power and immunity together, the American right wing will use them without practical limit. Nothing so ineffectual as reason will stand in their way. Had anything but pure power been efficacious in the Roe case, the draft opinion the Court acknowledged would not have been written as it was.

No one should suppose otherwise, no matter what arguments are offered to suggest restraint. Restraint is no part of today's new American politics. Americans not content with a nation structured by that style of rule had better get busy to assemble an adequate countervailing power of their own. The right-wing does not propose to be reasoned out of its victories.

[Don Nico]

SL,
You have reacted with overblown hysteria as badly as Josh.

[Dan M]

And you, sir, have contributed absolutely nothing to the discussion.

Texas has already stated that they will seek permission to refuse education to children. The 5th Circuit Court is virtually guaranteed to side with it, which means that it will be sent to SCOTUS - where it gets subjected to exactly the same litmus test, and for similar reasons.

Forget gay marriage, homosexuality itself was outlawed for much of our nation’s history. Subject to the exact same reasoning as the leaked Roe draft, it, too, once again gets left up to the states.

Who here is stupid enough to think that power-mad Republicans, now that they’ve slayed the abortion dragon, won’t be eagerly looking for the next cause to keep their followers foaming at the mouth?

Unequal Rights are enshrined in the Constitution. By Alito’s logic, all mixed-race marriages are endangered. Even a woman’s ability to exist in modern-day American society is at risk.

It wasn’t so long ago that women were not allowed to even hold a credit card in their own name.

Of course, the right will immediately scream that “ALL WE WANT IS FETAL PERSONHOOD!”

Right. With temporary extreme overrepresentation upon the most powerful branch in government, and enough power to throttle the other two branches, are any of you foolish enough to think that the hysterical conservative evangelical cult will suddenly declare they’ve achieved all of their aims, and return to sanity?

[David Nieporent]

Texas has already stated that they will seek permission to refuse education to children.

No, it hasn't. Abbott was bloviating on the radio. That's not the same thing as an actual intention, let alone a plan.

The 5th Circuit Court is virtually guaranteed to side with it,

The 5th Circuit Court is bound by precedent not to do so, even if Texas did this.

Hysteria doesn't get less hysterical because you triple down on it.

[DaivdBehar]

Steven. The decision seeks to restrain the Supreme Court. Is that a bad thing? It gives the decisions back to the state legislatures, where they belonged. Is that a bad thing. If you do not like your state legislature, you can foot vote, I learned here.

[DaivdBehar]

Homosexuals are not falling for the lawyer trap of marriage. They are not having children, and have no need for the horrors and legal burdens of marriage. The law is totally biased against the productive member of a marriage, in order to plunder his or her assets. Homosexuals are not stupid and have above average assets.

[CJColucci]

Then, perhaps, we should defer to their own view of their own interests.

[DWB]

SO, no force will be used against me to recognize or provide material support of such a private relationship?

[Aemon McGarret]

Womens' decisions about her pregnancy & when life begins need to be returned to state legislatures where they belong. So we can all vote on them. I have come to understand what is wrong with the Court abortion decisions. I get it. The best answer. And cleanest legally, is to declare anti-abortion laws an unconstitutional infringement. Thousands of other people's deeply held opinions about a woman's pregnancy & life should be their problem. Not hers. The contention that the community & state have a legitimate interest in preventing abortion is the real problem here. All of the many thorny issues about pregnancy & a woman's relationship to HER pregnancy, in HER body are hers to make. That woman, her position & relation to the pregnancy, & any respect for her agency, are nowhere to be found. Not even a wave in that direction. We are looking out for the rights & interests of the unborn, whatever their state of existence. We are looking out for the claimed rights & interests of the many people who feel it is their moral imperative involve themselves in the decision. We are taking care of the legal systems need for verbal formulas & consistency. Where is the pregnant woman? She isn't mentioned anywhere.
I think Stephen's comment is solid. Not unusual.

[ReaderY]

You’re practically quoting Justice White’Roe dissent. You agree with it?

[Rossami]

Hysterical. You blame "the American right wing" yet are willfully oblivious to the fact that every point in your post is equally applicable to the left wing.

[Nisiiko]

I would love for existing precedent on marriage and sex, especially Loving, to be overturned. But most Americans, even conservatives, are liberals on racial issues, so it isn't going to happen.

[Leo Marvin]

You're flunking the Turing Test.

[Rev. Arthur L. Kirkland]

Nope. That is what plenty of these right-wingers believe. They can't stand this damned progress, and hope to see an America in which women, Blacks, gays, Muslims, agnostics, Jews, atheists, four-eyed professors, bisexuals, immigrants, prospective immigrants, students, and plenty of others (the "uppities") know their place -- and it is not a pretty place.

Fortunately, I do not expect these obsolete jerks to suddently become competitive, let alone reverse the tide, in the culture war or at the American marketplace of ideas. They're losers. Their ideas are losers. You can't reason with bigotry, superstition, or belligerent ignorance. You just defeat them. (Plus, if you wish, mock, scorn, and ridicule them, because they deserve every bit of it.)

[DWB]

See how many black men would, in a fit of honesty, tell you how they really feel when seeing a white man married to a black woman.

You're not all that clever are you Rev?

[CJColucci]

I know several, who all know me, a white man married to a black woman. They all seem to be fine with it. Do you have different information, or are you just making s**t up?

[DWB]

Since I am also married to a black woman, yeah ... I have MUCH different information.

I have been married to a black woman for 32 of my 52 years on this earth -- perhaps I have more experience than you do?

[CJColucci]

No, you don't. I have several years on you.

[DWB]

Then you either know what I am talking about or you are being willingly obtuse

[Leo Marvin]

Lol. "If you disagree with me you're lying."

[Aemon McGarret]

Treating darker skinned people like equal human beings before the law isn't exactly liberal. Treating everybody as equal human beings isn't progressive. Think what you like. But those laws are just pure animal dominance over various minority communities.

[Nisiiko]

Everyone should be treated equally. But people should stick to their own when it comes to marriages.

[Rev. Arthur L. Kirkland]

How can Josh Blackman contact you about a research assistant position?

[Aemon McGarret]

By Law?

[Nisiiko]

No, of course not.

[Don Nico]

"about the fate of same-sex marriage, contraception, and anti-sodomy laws] are understandable, they are overblown"
and yet the leftist media talk about the opinion threatening interracial marriage. Such scare tactics are pathetic

[Aemon McGarret]

Justice Alito went to some length saying that this decision had no bearing or relation to these other DP privacy issues. But also spent time on how wrongly decided they were. The credibility of the "conservatives" on the Court is close to nil. And there is a massive ugly dishonest attack on gay & transgendered people going on in the MAGA universe. As well as palpable hostility toward the Black community on the right. I can't see those fears as overblown. Moderation & compromise are profanity & blasphemy to the hard right.

[Nisiiko]

If the LGBTQKLDFJKANCVV "community" is as confident in the popularity of their position, they wouldn't care about it being a Constitutional protection, because the legislatures would reflect that popular belief.

[CJColucci]

In the immortal words of Antonin Scalia, from Lawrence, "Do not believe it."

[Rev. Arthur L. Kirkland]

" Such scare tactics are pathetic "

Who would be the better source of insight on this -- Sens. Collins and Murkowski, or some obsolete right-wing crank who frequents a white, male, clinger blog and actually claims to believe fairy tales are true?

[F.D. Wolf]

Perhaps most telling, however, is that this decision would mark the first time the Court overturned precedent to eliminate, as opposed to recognize a new, right.

The "first time", not counting all the Lochner-era cases the Court overruled, eliminating a host of economic rights the Court had previously declared to exist. But as someone once said, leftists only care about rights that originate below the waist.

In Williamson v. Lee Optical (1955), the Court famously declared, "The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Of course, in actuality, that day was far from "gone" and would soon return with a vengeance.

[Brett Bellmore]

That was my thought, too: First time precedent was overturned to eliminate a right? Like hell! But Lochner doesn't count because the left didn't like economic rights, and so won't admit they were rights.

[not guilty]

Justice Alito´s blather about limiting the decision to abortion rights is as meaningless as then-Judge Kavanaugh´s confirmation hearing testimony that Roe v. Wade is settled law.

It is not necessary for a state to outlaw same sex marriage to call Obergefell v. Hodges into question. A federal district judge in Ashland, Kentucky has granted summary judgment in a damages action against Kimberly Jean Bailey Wallace Davis McIntyre Davis for her refusal as county clerk to grant marriage licenses to same sex couples. (A jury will determine the amount of damages.) https://www.courthousenews.com/wp-content/uploads/2022/03/KIM-DAVIS.pdf If that case works its way up to SCOTUS, it may furnish a vehicle to overrule Obergefell.

With five justices on Eric Rudolph´s side of the culture war, there is no telling what may happen.

[Brett Bellmore]

"Laws discriminating against same-sex relationships also violate the Equal Protection Clause because they discriminate on the basis of sex."

At times I wonder why we even bothered refusing to ratify the ERA; The legal system seems determined to proceed as though it were part of the Constitution anyway...

[Sarcastr0]

Yes, the conversation on women being treated equally under the law is over, and intermediate scrutiny is the same as strict!

Also, of course it's currently 2022 not 1982. And original public meaning was that our constitution operated on incremental common law mechanisms, so not being where we were 40 years ago is not unexpected to anyone who seeks to actually be originalist.

[DWB]

You could not get the votes so you cheated -- gotcha

[ReaderY]

There is a slight ddifference - nominally, intermediate rather than strict scrutiny is required. But although the Supreme Court upheld a few laws under imtermediate scrutiny in the 1970s and 1980s, for example the male-only draft, it’s been a long time since this has occurred. In effect, the difference has gone to the place where intrastate commerce (or things that aren’t interstate commerce more generally), the inapplicability of the Equal Protection Clause, non-fundamental enumerated rights, and other archaisms get laid to rest. There are a few show examples to show that the category still exists. But nobody takes it seriously.

[ReaderY]

In Casey, Justice Kennedy added language characterizing the scope of liberty as the plurality saw it that he later added to Lawrence. In addition to articulating the Bowers v. Hardwick standard for when a claimed right should be recognized as fundamental, the Alito opinion also heavily criticizes this language. The right to determine for ourselves the mystery of life may enable us to think and speak as we wish, Alito wrote, but it doesn’t permit us to act as we wish.

So in addition to articulating Justice White’s opinion in Bowers without doing so directly, in addition to articulating Justice White’s justification in Bowers for rejecting an expansive concept of privacy/autonomy, the Alien o opinion directly criticizes Lawrence’s justification language.

I have, in recent years, shared some of Chief Justice Robert’s concerns about moving to quickly and saying more than is necessary to decide the case. I also critiqued Roe, and I did critique it pretty regularly, based on natrower grounds.

I had said that Texas had made a go-for-all-the-marbles mistake in Roe by claiming its interest in fetal life was constitutionally mandated because a fetus is a constitutionally protected person. The Roe court rejected the personhood argument, and thereby rejected strong state intereest with it. But the court had previously held that extraterritorial aliens aren’t persons within the meaning of the Bill of Rights, but nobody thought this meant government could have no direct interest in preserving their lives. Texas made a bad decision by putting all its marbles in a losing argument. It should have raised the extraterritorial alien cases in asserting an alternative basis for its interest.

The Alito opinion renders my argument irrelevant. If there is no fundamental right, there is no need for heightened scrutiny, so there is no need to show that a state interest is especially compelling or important. It meed merely be rational.

And when push comes to shove, I agree with the Alito argument, I agree with the dissent not just in Obergefell but also in Lawrence. The Supreme Court should not be in the business of creating new fundamental rights out of whole cloth. Our experience with Dred Scott, where the Supreme Court in effect created a new fumdamental right to own a slave, our experience in Lochner, where it created a right to absolute liberty of contract, all suggest its opinion is neither binding on the nation, nkt tight.

Justice O’Conner formulated an alternative basis for Lawrence focusing on the Equal Protection Clause. Her concurrence would have upheld sodomy laws that also prohibit opposite-sex sodomy. Not much attention was paid to it at the time. However, one thing that the Bostock opinion makes clear is that O’Conner’s alternative formulation is likely very much alive. Gorsuch and Roberts will likely agree with it, as they did with Bostock. This means it will likely command a majority.

If so, states would be required to permit gay marriage, but could enforce laws against sex outside of marriage as long as they don’t discriminate based on sex. This would definitely be a different state of affairs than existed either before Lawrence or exists at present. And it strikes me as the most likely outcome given the implications of both this decision and Bostock.

[QuantumBoxCat]

I'm not familiar with the opinion and reasoning in Bostock, but wouldn't the conservative justices approach the Equal Protection Clause differently than the Civil Rights Act of 1964? I would think the Civil Rights Act gets the textualist treatment, but the Equal Protection Clause gets the Originalism treatment. That is, what was the original understanding of Equal Protection at the time the 14th Amendment was ratified (as opposed to what the word "sex" means in the CRA).

[ReaderY]

A fair point. My prediction isn’t based on strict legal analysis. It is based on a notion that Gorsuch and Roberts seem inclined to come up with ways to reconcile gay rights arguments with conservative theory in a way they aren’t willing to do for abortion. This is what makes me inclined to think they will be more open to O’Conner’s approach.

[ReaderY]

Since it was buried at the bottom of my previous post, I want to post it separately here. I think O’Conner’s concurrence in Lawrence shows where this court is going to go. O’Conner had joined the Bowers majority. She based her Lawrence opinion on the Equal Protection Clause. She said that while the state can prohibit sodomy (and sex outside of marriage) generally, it cannot prohibit only same-sex marriage.

Bostock breathes life into this view. It suggests that a majority will sign onto it. In the post-Dobbs world, following the implications of Dobbs’s repudiation of Lawrence’s reasoning, O’Conner’s concurrence looms large. The Conservatives who joined Bostock, including Gorsuch who wrote it, will likely sign on.

I predict that in the new constitutional framework, post-Dobbs and post-Bostock, states will be required to permit gay marriage, but will be permitted to prohibit sex outside of marriage, including sodomy laws, so long as they don’t prohibit only same-sex sodomy.

That’s a very different world from both pre-Lawrence and at present.

[ReaderY]

Sorry, it cannot prohibit only same-sex sodomy.

[Rev. Arthur L. Kirkland]

Do your damnedest while you still can, clingers.

Please have the character and courtesy to refrain from whimpering, crying, moaning, whining, muttering, and sputtering quite so much when your betters impose the predictable, just, modern reckoning.

[fafalone]

Your contribution is wrong on it's face. Overturning Obergefell was recently adopted explicitly in the Maine Republican Party platform. It's arguably still a part of the national party platform, to the extent they re-adopted the 2016 platform. Only 55% of Republicans support same-sex marriage (Gallup, 2021), and the 70% that support it overall mirrors the support keeping Roe v Wade had (Pew, 2019), and, well...

There's widespread, strong support among the conservative base and politicians to overturn Obergefell, and to pretend that doesn't exist is either ignorant or dishonest. This Court is unconcerned with the overall support.

[David Nieporent]

There's widespread, strong support among the conservative base and politicians to overturn Obergefell, and to pretend that doesn't exist is either ignorant or dishonest.

No, there isn't. For some reason, liberals want this to be true. It's not.