Steve May 5, 2022
after-roe:-9-legal-experts-on-what-rights-the-supreme-court-might-target-next

After Roe, what’s next for this Supreme Court?

That’s a question on a lot of people’s minds as the dust settles from Monday’s Politico story, prompted by a leaked draft opinion by Justice Samuel Alito, that the Supreme Court is poised to overturn Roe v. Wade.

A ruling of this magnitude is not just about the short term, however. Although Alito took pains in his opinion to state that the rationale for striking down Roe is limited to just the abortion issue, the willingness to disregard decades of settled law has certainly prompted speculation on what else might be in the Court’s sights. Is it possible that the legal foundation for other rights — like marriage equality, for example — will be targeted next by the conservative-dominated Court?

To get some answers, I reached out to nine legal experts and asked them to step back from the news and look ahead to where the emboldened Supreme Court majority may be taking the country. Their full responses, edited for clarity and length, are below.

Melissa Murray, law professor, New York University

Although Justice Alito insisted that the draft opinion’s antipathy for settled precedent was limited to abortion, the opinion was littered with casual references to Lawrence v. Texas, a 2003 decision decriminalizing same-sex sodomy; Obergefell v. Hodges, a 2015 decision legalizing same-sex marriage; Griswold v. Connecticut, a 1965 decision that legalized contraceptive use; and Loving v. Virginia, the 1967 decision legalizing same-sex marriage.

More ominously, in a passage emphasizing judicial restraint, Justice Alito underscored that “respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.” It doesn’t take a clairvoyant to get the gist of this. What issues, beyond abortion, are leavened with “great social significance and moral substance”? Marriage, contraception, and the panoply of “heart and home” rights that scaffold our intimate lives.

Like the abortion right, these rights are implied from the 14th Amendment’s guarantee of liberty and the notion of constitutional privacy. And like abortion, they will come under fire as conservatives cast about for their next constitutional crusade.

Ciara Torres-Spelliscy, law professor, Stetson University

Justices who comprise the conservative majority on the Supreme Court have long been hostile to the right to privacy that was articulated in Griswold v. Connecticut, which protects the right to use contraception. Strict textualist justices claim the word “privacy” is not in the Constitution and thus the right to privacy does not exist.

This is the same rhetorical move that Justice Alito makes in his leaked opinion overturning Roe v. Wade. He claims that because the word “abortion” is not in the Constitution … consequently the right to abortion does not exist.

The problem for our modern society is that many rights we care about have been protected as progeny of Griswold. This decision also gave us Loving v. Virginia, which invalidated an anti-miscegenation law, as well as Windsor and Obergefell, which articulated a right to marriage equality for same-sex couples.

After this [opinion], Loving, Windsor, and Obergefell are all on constitutionally thin ice. And the frustrating thing is Justice Alito’s ignoring the Ninth Amendment, which protects Americans’ unenumerated rights. As Roe recognized 49 years ago, the right to abortion is protected by the Ninth Amendment.

Or at least it did until this opinion becomes the law of the land.

Diane Marie Amann, law professor, University of Georgia

“Now let’s do guns.” Those words jumped to mind on reading the leaked draft that Roe v. Wade must be overruled because its reasoning is “remarkably loose” (a telling phrase in an opinion that would strip away the right to end unwanted pregnancies).

It was not until 2008 and 2010 that the Court held, for the first time in its two centuries, that “the right of the people to keep and bear arms” means that every person may possess a firearm — and that this is the very kind of “liberty” which the draft would deny to pregnant persons. Judicial sparring leaves those gun cases wide open for critiques that they are, to quote the draft’s deprecation of the abortion precedents, “egregious,” “wrong from the start,” and “disruptive,” with “damaging consequences.”

But rather than revisit those holdings, a justice endorsing the views of this draft likely will question invocations of “liberty” in matters of a more personal nature. At risk are intimacy, marriage, and forming of families — basic human dignities that recent Court decisions reaffirmed for queer and straight persons alike.

This draft purports to follow “deeply rooted traditions” on “liberty” that arose no later than 1788 — not the Constitution’s greatest moment. Its 13th Amendment did not outlaw slavery for another 77 years. Fully 132 years passed before its 19th Amendment gave voting rights to those whom this draft targets: women.

In overturning Roe by resorting to a time when women were allowed no status in America’s public sphere, the draft puts that very status in jeopardy.

Tom Ginsburg, law professor, University of Chicago

The nuclear option for American democracy would be to overturn Arizona State Legislature v. Arizona Independent Redistricting Commission, the 2015 case that affirmed the constitutionality of non-partisan commissions for congressional redistricting, some version of which is found in 13 states.

Political scientists have affirmed that when redistricting is undertaken outside the legislature, elections are more representative and responsive to changes in public opinion. But the 2015 case was decided on a 5-4 vote, with Anthony Kennedy in the majority. Roberts dissented and so one must worry that the current GOP-appointed majority will insist on a literalist interpretation of the Constitution.

Ultimately such a reading might even allow state legislatures to substitute their own set of electors for those chosen by the voters, which was proposed in the Arizona legislature after January 6. Overruling Arizona Redistricting would be a body blow to American democracy and the tradition of state-level experimentation. Perhaps unlikely, but the stakes are enormous.

Ric Simmons, law professor, the Ohio State University

Justice Alito’s draft decision is well-argued and is consistent with the originalist philosophy now dominant on the Court. The only weak part of his argument was his claim that this decision will have no effect on other precedents that also rely on similar legal principles.

Many of these precedents — such as the right to contraception — are now indeed going to be re-examined and perhaps overruled because of this decision. However, the decision in Obergefell that guarantees a right to same-sex marriage is likely to be safe. Even if that decision now rests on shaky legal ground, the Court will still consider the principle of stare decisis [which basically means that the Court will defer to legal precedents].

Justice Alito argues that the argument for stare decisis is not especially strong for Roe, because its holding — with ambiguous terms and shifting standards — was unworkable, and there were no strong reliance interests in the case — that is, people had generally not organized their lives in irrevocable ways because of the right to abortion. Obergefell is very different: its holding is extremely simple and workable and, most importantly, hundreds of thousands of couples have now relied on the ruling in order to marry and start families. Thus, overruling Obergefell would be a much greater challenge to the principle of stare decisis.

It is also important to note that even if some of the prior decisions establishing constitutional rights are overturned, that does not mean that there will be an appetite in the state legislatures to ban such practices. We know this will happen with abortion laws because the country has never reached a consensus on the abortion issue. But it is unlikely that many — if any — states will now rush to ban contraceptives, or even ban same-sex marriage, given the high level of consensus that the country has reached on those issues.

Mark Tushnet, law professor, Harvard University

Just to lay out why doctrinally the draft opinion’s approach threatens LGBTQ+ and other unenumerated rights: According to the draft, the only unenumerated rights that get special protection are those that have strong foundations in history and tradition. If a right doesn’t have that foundation, it’s an “ordinary” right that legislatures can override or regulate if they have a “rational basis” for doing so. In the abortion context, the opinion says, the fact that abortion involves what a legislature can believe is a (potential or full) human life provide such a basis.

LGBTQ+ rights don’t have strong foundations in history and tradition and so are “ordinary” rights. The draft opinion says, We aren’t saying anything about such rights because abortion restrictions/regulations deal with the interest in protecting life. But that’s not responsive to the argument that the opinion threatens LGBTQ+ rights because the opinion does imply that such rights can be restricted/regulated if there’s a rational basis for doing so.

Pointing out that there’s a rational basis for restricting/regulating abortion doesn’t tell you anything about what might count as a rational basis for regulating/restricting other unenumerated rights.

Victoria Nourse, law professor, Georgetown University

Some journalists confessed shock at the Supreme Court’s leaked opinion overturning Roe. It should not shock. The “judicial philosophy” or textualist method is well-known. The word “abortion” is not in the Constitution — end of case. Lots of words are not in the Constitution, like marriage or contraception or education or living with your grandmother. Does that mean that a state can bar these things?

Well, I doubt the Court will reverse itself on such things. Textualism is often half-hearted, willing to say “here and no further.” Miranda rights are not in the Constitution, but I doubt the Court will get rid of them; Roe has always been the target of this judicial philosophy.

The much, much bigger problem lies in what effect this philosophy has outside the Court. The Court’s textualism has already led to extreme results. Half of Oklahoma is Indian territory, upending settled criminal law. The president has “all executive” power, which Donald Trump touted as a justification to overturn an election and fail to fund Ukraine — even though “all” is not in the Constitution. (Again, textualism is not consistent, it tends to pick and choose and even add to text).

And then there is the claim that the word “legislature” means that state courts cannot interpret election law, and was the basis for John Eastman’s plan to overturn an election. Textualism is a wolf in sheep’s clothing that has already endangered the Republic. No one should be surprised when Dobbs yields extreme anti-abortion laws in the states. The Court wants to get out of the abortion business, but that business is just beginning.

Aziz Huq, law professor, University of Chicago

In trying to understand what comes “next” after Dobbs, the leaked draft opinion by Justice Alito provides almost no guidance. True, it draws a line between abortion, and other fundamental rights related to intimacy, contraception, and marriage. But its reasons for doing so are embarrassingly bad: Abortion, the draft says, involves “moral” issues — as if forced sterilization and the punishment of private consensual conduct between adults didn’t!

But these token concessions to the practice of legal craft in the draft Dobbs opinion are likely beside the point: Inviting challenges to Roe, and in pressing for a maximalist rather than a minimalist ruling in Dobbs, the conservative Justices have been responding exclusively to cues in the larger conservative political movement. They are indifferent to the general public. Hence, the trajectory that the Court will take — and the dominos that are yet to fall — depend crucially on that larger movement and what it decides.

The last time that the Court was so closely aligned to a sectional movement during a polarized time was the 1850s. The decision throwing the Court’s lot in with that movement was Dred Scott, which eliminated Congress’s power to prohibit slavery in the territories and thus seemed to condemn the United States to being a slave state. Dobbs, in the starkness of its political alignment, is more akin to Dred Scott than any earlier opinion. It is a parallel that bodes ill for all concerned.

Susan Bloch, law professor, Georgetown University

I believe that this abortion decision suggests big trouble for all “right to privacy” cases, including the right to same-sex marriage recognized in Obergefell. The leaked draft opinion says that the right to an abortion in Roe is illegitimate because the Constitution is silent about abortion and that nothing in the text or structure of the Constitution supports a constitutional right to abortion.

The same can be said about the right to same-sex marriage or interracial marriage. The decision in Roe v. Wade energized the political right in 1973. The decision in the Mississippi abortion case — if it follows the leaked draft — better energize the political left. More is at stake than simply the right to an abortion.

from Vox

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