There are real, honest-to-goodness liberal tears flowing on this network today.
A guest on CNN starts crying over the Roe v Wade decision pic.twitter.com/vlc2lUC5K0
— Washington Free Beacon (@FreeBeacon) June 24, 2022
The doomsaying is flowing too, naturally.
Harlow and Biskupic claim the ruling meant the rights to mixed-race marriages, same-sex marriages, contraception, and private consensual sexual acts were going to get thrown out too.
Biskupic lashes out at Justice Amy Coney Barrett. pic.twitter.com/Kuiz8j6L42
— Nicholas Fondacaro (@NickFondacaro) June 24, 2022
I’m skeptical that gay rights, contraception access, and especially interracial marriage are under any threat near-term. For one thing, Alito went out of his way in today’s Dobbs opinion to warn lower courts not to infer anything about those precedents from the fact that Roe is now dead and buried.
As in Justice Alito’s draft opinion, the maj. op. says its conclusion that the Constitution does not protect a right to abortion does not “in any way” undermine the personal autonomy line of cases (Griswold, Lawrence, Obergefell).
Says the difference is a “moral question.” pic.twitter.com/wrjVUggnAh
— Gabriel Malor (@gabrielmalor) June 24, 2022
His reasoning is unconvincing, admittedly. If the legal defect with Roe is that the right to abortion isn’t in the Constitution and wasn’t recognized at the Founding, what does it matter that abortion touches on life and death while, say, gay marriage doesn’t? It’s a non sequitur. That passage reeks of a justification Alito was forced to come up with in order to hold his majority together. It may be that Kavanaugh or Barrett or whoever told him that they’re onboard for overturning Roe but only Roe and that he needed to go along with that in order to retain their vote. Which he did.
If I’m right about that then the Court’s other major “substantive due process” precedents are in no danger soon. In particular, the right to interracial marriage is in no near-term danger because it doesn’t depend (for the most part) on substantive due process. It’s an interpretation of the Equal Protection Clause. Unless the Court is prepared to revert to “separate but equal” — blacks are equal in that they’re free to marry other blacks — then nothing’s going to happen to that right.
And if we ever do reach the point where gay rights and the right to contraception are in play at the Court, Republican legislators at the state level will proceed with extreme caution in trying to regulate them. Contraception has virtually universal approval among Americans and support for gay marriage is trending north of 70 percent at last check. If you’re going to cross voters on issues where there’s a lopsided majority against you, you’re going to lose some elections.
So, no, substantive due process isn’t going anywhere short-term.
This passage from Clarence Thomas’s concurrence may be more noteworthy than anything in Alito’s majority opinion:
In a solo concurring opinion, Thomas says the court should reconsider rulings that protect contraception, same-sex relationships, and same-sex marriage. pic.twitter.com/zcQNko6NVR
— Matt Ford (@fordm) June 24, 2022
There’s a certain type of sucker who believes that one of the benefits of overturning Roe is that doing so will end the culture wars over Supreme Court nominations. Now that abortion is a state issue once again, the stakes in confirming justices have supposedly gotten much lower for both sides. The cultural temperature may get hotter in the immediate aftermath of today’s decision but in the long run it’ll cool off, or so the theory goes. The abortion wars, at least with respect to judicial involvement, are over.
That’s nonsense, of course.
Rep. @AOC (D-NY) protests with pro-abortion activists after SCOTUS overturns Roe v. Wade:
"We've gotta strap in. This is a generational fight." pic.twitter.com/TQX6LEuZW9
— The Recount (@therecount) June 24, 2022
Reinstating the right to abortion by overturning Dobbs will now become a cause for the left, the same way overturning Roe was for the right. The burden of imposing litmus tests on SCOTUS nominees has merely shifted from one party to the other. Meanwhile, the right is destined to be disenchanted with today’s momentous victory when it realizes that abortions won’t drop very much in the post-Roe landscape. One estimate is that they’ll decrease by 15 percent or so, which is all to the good but nothing like a sea change. The number of abortion providers in blue states will inevitably increase to meet demand from women in red states and a huge red-state black market for abortion pills will arise. Before long, pro-lifers will decide that overturning Roe was grossly insufficient. What we need are congressmen who’ll pass a national abortion ban to thwart blue states (never mind the federalist pitch that was used to sell overturning Roe for 50 years) and/or justices who’ll find a right to life for fetuses in the Due Process Clause of the 14th Amendment.
The judicial wars over abortion are just getting started.
More than that, though, CNN is right to fear that ditching all substantive due process rights under the Constitution will become a new cause celebre for some Republicans. That’s the significance of Thomas’s concurrence today: Even at the moment of the right’s greatest cultural triumph, he’s using his tremendous influence over conservative thinkers to say, “Go further.” Logically, if there’s no right to abortion because there’s no tradition in American history of legally protecting abortion rights, there’s no right to contraception either. And certainly there’s no right to gay marriage, let alone gay sex. Not all righties will want to start messing with those rights, preferring a more libertarian approach to social issues that don’t involve babies being killed. But some will.
It’s inevitable that “Will you reverse all substantive due process precedents?” will become a new litmus test for some activists in choosing future judicial nominees. And if and when the day comes that there are five justices willing to do that, I’m guessing the next litmus test will be “Will you find a substantive due process right to freedom of contract that trumps state economic regulations?”
There’s plenty of precedent on the books for that one.
But that’s a ways off. As I say, in the short run I doubt any major moves on substantive due process will be made. There’s a reason Thomas’s opinion is a concurrence rather than part of the majority, after all. Although, if you happen to be gay and married, you *might* want to start browsing the listings in blue states on Zillow. Just to be on the safe side.