Whether or not America will enter a post-Roe period—or, more accurately, a post-Casey period—characterized by restrained judicial interpretation of the US Constitution and respect for the states’ role within our federal system will be largely up to We the People. The Bruen 2A decision yesterday and Dobbs today stand as testimony to what determined and principled opposition to government overreach can accomplish. Certainly the 6-3 opinion gives stability to the decision—despite Roberts’ concurrence with Alito’s opinion. Changes in the current status of abortion law will now be largely left up to the states—or, seemingly, up to the women in those states:
p. 7
Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.
Hmmmm. I’m not sure how that works.
Anyway, the opinion expressly concerns only abortion—with the proviso that the Court’s obvious skepticism regarding “substantive due process” could make a difference in cases in the future. However, the majority went out of their way to reject the notion—advanced by the dissenters—that this decision applies to any issue other than abortion (more below).
Regarding substantive due process, that controversial theory comes up pretty much from the start, which is understandable because it’s the true basis for prior abortion decisions. It’s interesting that the Court appeals (as in the Bruen 2A case, yesterday) to “history and tradition” as a basis for constitutional interpretation—which certainly seems to be a more objective test than a simple appeal to stare decisis, given the widespread abuse of that notion by liberals. This is a response in substance to Roberts’ notions of restraint, as expressed in his concurrence (more below).
Here are some excerpts re substantive due process and its dangers:
p. 2
The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution.
Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause.
p. 22
“Substantive due process has at times been a treacherous field for this Court,” Moore v.
As the Court cautioned in Glucksberg, “[w]e must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” 521 U.
p. 44
We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be “‘deeply rooted in this Nation’s history and tradition’” before it can be recognized as a component of the “liberty” protected in the Due Process Clause.
Most people probably still think the key issue is some sort of “right to privacy”. That’s not the case. In fact the real key to this decision is overruling Casey. Three brief excerpts from the Court’s extended review of the line of precedent leading up to Dobbs:
p. 5
The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.
p. 6
The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. 505 U.
p. 12
Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion.11 The decision provided no clear guidance about the difference between a “due” and an “undue” burden.
Here is Jonathan Turley’s twitter thread on the decision, in which he provides key excerpts. I call attention to his article that concerns the opposition to the decision—the link is embedded in this thread:
The second opinion is now out. It is Dobbs!
Alito is the author.
...Chief Justice Roberts concurred.
Roberts: "I would take a more measured course. I agree
with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. "...Roberts: "Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.
I believe that the Thomas - Alito approach, which emphasizes history and tradition in constitutional interpretation is, in fact, a principled effort to express the idea that lies at the heart of stare decisis—why stare decisis became a legal “doctrine”. From that standpoint Thomas and Alito are trying to breathe new life into what may seem to many in the deconstructionist modern era to be a musty relic of the past.
Kavanaugh amplifies the majority opinion: "The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion."
Key line: "to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion"
..That line from the majority seem to retort those claiming that everything from Brown v. Board of Education to contraception protections will now be in danger.
The Post-Roe World: A Reality Check on the Implications of the Leaked Supreme Court Opinion Below is my column in the Hill on claims being made about the post-Roe world and the sweeping away of such rights as interracial marriage and the use of contraceptives. The “parade of horribl…https://jonathanturley.org/2022/05/16/the-post-roe-world-a-reality-check-on-the-implications-of-the-leaked-supreme-court-opinion/
The majority directly swats down such claims, including in the dissent: "Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4–5, 26–27, n. 8..."
..."But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” We have also explained why that is so...
..."rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.”
...The majority hammers away at the parade of horribles: "It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable..."
"...there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence."
Now, from mid-May, here’s the intro to Turley’s rebuttal of the “parade of horribles” that liberals fear will flow from the Dobbs decision. Actually, the liberals have a point, in that a return to judicial restraint based in historical interpretation of the Constitution with respect for our societal traditions could, indeed, spell big trouble for their agenda. This may be the big picture message of Dobbs and Bruen taken together, as well as of much of the current SCOTUS term. Anyway, Turley—follow the link above for the whole article if this interests you:
The New Yorker magazine ran a cover in 1976 showing the view of the country from 9th Avenue. The map by Saul Steinberg showed civilization largely ending at the New Jersey border with a vast wasteland between New York and the Pacific Ocean.
It appears that, for some people, not much has changed with that view of America.
Recently the editors of the New York Times seriously warned that some states likely would outlaw interracial marriage if Roe v. Wade is overturned: “Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t.”
It is hard to imagine because it is utterly untrue. Nothing in the Supreme Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization supports such a dire prediction. To the contrary, the draft expressly states that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Indeed, such a motive might come as something of a surprise to Justice Clarence Thomas, given his own interracial marriage, or to Justice Amy Coney Barrett, given her own interracial family.
The purpose of the Times’ commentary seems to be to inflame rather than inform readers. And that is consistent with the position of politicians and pundits who raised alarms, even before the leak, over the need to reignite anger among voters to avoid a disaster in the midterm election. On MSNBC, for example, Rep. Madeleine Dean (D-Pa.) agreed with John Heilemann that Democrats must “scare the crap out of [voters] and get them to come out.”
The Times editorial is part of a “parade of horribles” that is becoming increasingly grotesque in its exaggerated claims. MSNBC’s Andrea Mitchell and former Clinton Attorney General Eric Holder had a preposterous discussion of how if Roe goes down, Brown v. Board of Education could be next. MSNBC’s “The ReidOut” host Joy Reid falsely told her audience that the decision “could apply to almost anything” in not just prohibiting interracial marriage but overturning the Brown decision.
An apocalyptic post-Roe hellscape can be a motivating image, but only to the extent that it is credible. The problem is that the claims are detached from both legal and political realities. Consider three of these claims on interracial marriage, contraception and same-sex marriage:
Whether post-Roe America will become a true hellscape is also left up to We the People. Will Americans get informed, in spite of the worst efforts of the political and media establishment, and reject the Left’s appeal to blind, uninformed rage? Hard times are likely ahead for the nation. Hard times sometimes lead to reflection. There is hope.
I’m amazed at the size of the protests in LA.
Marching on the freeway!
And attacking cars that don’t agree with you. Wow.
https://www.thegatewaypundit.com/2022/06/chaos-los-angeles-violent-leftists-riot-roe-v-wade-overturned-videos/
"Hard times are likely ahead for the nation. Hard times sometimes lead to reflection. There is hope."
"Hard times lead to strong men, Strong men lead to good times, good times lead to weak men, weak men lead to hard times..." Geoff Hopf
Great interview with this former Marine and author here:
https://allmarineradio.com/2022/06/22/the-all-marine-radio-hour-gulf-war-tow-gunner-underwater-construction-diver-bodyguard-the-author-of-37-books-meet-geoff-hopf/
or here:
https://podcasts.google.com/feed/aHR0cHM6Ly9hbGxtYXJpbmVyYWRpby5jb20vZmVlZC9wb2RjYXN0Lw/episode/aHR0cHM6Ly9hbGxtYXJpbmVyYWRpby5jb20vP3A9MjEwOTA?ep=14