After Dobbs

Former Texas Solicitor General Jonathan Mitchell, who drew up that state’s controversial SB8 abortion bill, contributed an amicus brief in Dobbs v. Jackson Women’s Health arguing that not only Roe and Casey but other decisions beloved by progressives are similarly “lawless” and ripe for overruling. This indeed came up during oral arguments in the Dobbs case, as Justices Sonia Sotomayor and Amy Coney Barrett both asked Mississippi Solicitor General Scott Stewart what effect overturning Roe would have on other notable cases. Even before that brief or others like it were filed, progressives had already been warning of a conservative campaign to sweep away previous decisions establishing federal constitutional rights to contraception, sexual autonomy, or same-sex marriage.

As National Review’s Dan McLaughlin noted, this is most unlikely. To the comfort of progressives and perhaps the dismay of some textualists/originalists and social conservatives, the Court is unlikely to ever directly overturn such cases.

The question would be how the justices would thread the needle of foreclosing substantive due process—the doctrine that the courts can find and enforce “fundamental” but constitutionally unenumerated rights—without being accused of unleashing a variety of wildly unpopular state policies regulating sexual relationships. (Equivalent federal regulations would be susceptible to Ninth and Tenth Amendment federalism challenges, as Justices Clarence Thomas and Antonin Scalia once observed in passing.)

For those who are not con law professors: the discussions over substantive due process are largely proxy battles for four sets of cases in the realm of sexuality: Griswold v Connecticut (1965) and Eisenstadt v. Baird (1972) (striking down Connecticut and Massachusetts restrictions on contraceptive access); Roe/Casey; Lawrence v. Texas (2003) (striking down a Texas law against “sodomy”); and Obergefell v Hodges (2015) (establishing a constitutional right to same-sex marriage). In each of those cases, “living constitutionalist” judges have discerned such a right over the dissents of originalists who have argued that such progressive policies may be desirable, but they are not constitutionally mandated and must be implemented by state legislatures or voters.

If they decide to overturn Roe/Casey (a prospect that is still uncertain), the originalists and conservatives on the court would likely write an opinion that cabins previous substantive due process cases, foreclosing what the justices believe to be future mistakes while not directly calling into question what they consider old ones. The Court under Chief Justice William Rehnquist—Chief Justice John Roberts’s mentor and predecessor—floated similar efforts twice before, in the cases of Michael H. v. Gerald D. (1989)and Washington v. Glucksberg (1997), the latter of which is a particular favorite of Roberts. These cases sought to hold that the Court could theoretically discern unenumerated rights, but only if such rights are very specifically understood and “deeply rooted in the nation’s history”—an extremely high bar to clear. These efforts to establish such a standard proved ultimately ineffective because Justices Anthony Kennedy and Sandra Day O’Connor were not committed to Rehnquist’s project.

Even if textualists and originalists were correct that all of the major substantive due process cases were wrongly decided as a matter of law, and that a free-standing “right of privacy” binding against the states is not found in the federal Constitution (only in state constitutions that have written one in), the public reaction to overturning these cases would be unsympathetic, to put it mildly.

No amount of insistence that the originalist objections to Griswold and Lawrence are about process more than results—that states would not (and should not) re-criminalize “sodomy” or contraceptive access—will matter. That all states but Massachusetts and Connecticut had already legislatively repealed their contraceptive laws, and only ancient, unenforced statutes with obscure test cases even made the Court consider Griswold/Eisenstadt in the first place, will similarly be lost in the furor.

Unlike other originalist dreams, such as reversing the massive expansion of federal power in Wickard v. Filburn, formally overturning these cases would also be virtually pointless. The political appetite for such morals legislation regulating the sexual sphere is low to non-existent. Even many, if not most, conservatives who think those cases were wrongly decided as a matter of law would nonetheless agree with the dissents by Justices Potter Stewart and Hugo Black in Griswold, and Justice Thomas in Lawrence, that the state laws at issue, while constitutional, were “silly” and bad policy. (Thus, it’s also unclear how, in light of their non-enforcement one would even manage a test case to directly overturn either Griswold or Lawrence).

In other words, dealing with those cases would be, for originalists, a matter of legal housekeeping, rather than substantive goals. The real goal would be to ensure, as Randy Barnett once similarly observed, that originalism would check their reasoning while leaving such cases “settled” in the sense of not overturning their results. As Barnett explained, “Even if we do not reopen previously decided cases, originalism has a gravitational force in deciding future ones. In particular, erroneous reasoning should not be further extended”.

That, of course, leaves Obergefell, which Mitchell’s brief also called out for overturning, and which Justice Sotomayor raised as well. There, too, the political appetite for overturning Obergefell is at this point limited to a subset of social conservatives; polling suggests same-sex marriage is widely accepted across the partisan spectrum. Especially since Kennedy’s hazy opinion alluded to equal protection—as Justice Ruth Bader Ginsburg apparently preferred to decide the case—the ground already exists for the Court to reconceptualize Obergefell not as a sweeping substantive due process case about jurisprudentially enforced “dignity,” but as a much, much narrower, minimalist equal protection case, which offers little to no precedent for judicial flights of fancy. (Even Lawrence could be so reconsidered and reframed, in line with O’Connor’s more focused special concurrence assessing the case on equal protection grounds.) Thus, just as conservatives accept and even strongly endorse the equal protection reasoning protecting interracial marriage in Loving v. Virginia (1967), while quietly ignoring the additional substantive due process grounds floated by Earl Warren, so could they do the same in reconceiving and retconning Obergefell to be, if not constitutionally proper in their minds (unlike Loving), at least constitutionally constrained and with little potential for further legal development.

So what would such an opinion like this look like? Let’s posit that John Roberts would keep such a case for himself, or perhaps assign it to Justice Barrett, who appears to be closer to the chief’s temperament in dealing with precedent than, say, Justice Thomas. Based on Roberts’s Obergefell dissent, I think we would anticipate something like the following (quite similar to what Justice Hugo Black did in interring Lochner era economic substance due process in Ferguson v. Skrupa (1963)).

Five decades of judicial and political debate about Roe and Casey have clearly shown the Court’s foray into substantive due process jurisprudence has been, like this Court’s earlier attempt to fashion economic substantive due process in the Lochner era, a mistake, too prone to judicial manipulation and too often inconsistent with the text and original understanding of the Constitution we are authorized to enforce.

Discerning such rights, unenumerated in our Constitution’s text, has not only pushed this Court into a thicket where philosophy, rather than law, has seemingly determined the outcomes of cases, but it has also distorted our jurisprudence in other, more subtle ways.

For example, in Obergefell this Court grounded same-sex marriage in a nebulous and potentially limitless doctrine of substantive due process “dignity”, rather than, as the lower courts more cogently argued, a more specific violation of equal protection, one which treated the legality of a marital relationship differently depending on nothing more than the sex of the partners. This proved both overinclusive and underinclusive—far more sweeping in scope at the same time it offered a far weaker and less precedentially rooted grounding of such a decision. We think Obergefell, like Lawrence v. Texas (O’CONNOR, J., concurring in judgment), is thus better understood as an equal protection case—and we think that, regardless of what it has done in the past, the Court should get out of the business of trying to discern fundamental rights beyond those drawn from its text, with the possible exception of rights that can be shown to be “objectively, deeply rooted in this Nation’s history and tradition” (Glucksberg).

If new rights not found in the Constitution’s text are needed, the American citizenry has either the Article V process or, more readily, their own state constitutions, to clearly establish such rights. We will not usurp the people’s authority to create them.

Such an opinion would largely foreclose further substantive due process claims, as Roberts, like Rehnquist before him, has long signaled an interest in doing, while leaving in place other pre-existing substantive due process cases and harmonizing the Court’s jurisprudence in other spheres. Whether all this would successfully lower the Court’s political and reputational profile, as Roberts also clearly prizes, would be another question.