Alito should be less defensive about unenumerated rights

Will Dobbs, if decided as written by Alito, lead to the reversal of other unenumerated rights recognized in prior cases? Maybe some; probably not most of them. That is firstly a question for the political system, because cases do not reach the Court unless there is a real-world controversy. There is no political constituency anywhere today for banning contraception, criminalizing consensual sodomy, or outlawing interracial marriage — indeed, both Griswold and Lawrence required creativity to get to the Court in the first place because nobody was really enforcing the laws at issue in those cases even then. It is, secondly, a question of whether there is some firmer basis in the Constitution for the unenumerated right. Loving v. Virginia, for example, struck down bans on interracial marriage mainly because racial discrimination flagrantly violates the equal-protection clause; there is zero chance that the Court would conclude otherwise today even if it were asked again. And third, it is a question of stare decisis — the Court may weigh factors such as reliance on past decisions more heavily in the case of people who have already entered same-sex marriages in reliance on Obergefell.

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There is no reason why the Dobbs opinion needs to answer all of those questions simultaneously, so long as it follows a standard faithful to the written Constitution. To the extent that Republican politicians feel the need to address other cases to allay public fears, it is not Justice Alito’s job to be their press secretary. He should stick to ensuring that the United States Reports give no aid to falsehoods of fact or law in its pages.

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