Presented to the Leelanau County League of Women Voters, November 2022
The Supreme Court’s decision earlier this year in the Dobbs case, overturning Roe v. Wade, has radically destabilized constitutional law, public policy, and the lives of countless women.
We need to understand how we got here and what happens next.
I’m honored to have been asked to talk with you about this important subject but I’ll confess to entering into this project a bit anxiously.
Abortion is a vastly complicated issue about which reasonable people of good faith can and do disagree. And, while I have strong opinions about Dobbs (which I won’t hesitate to share with you), I respect that other legal scholars see the case differently. Finally, at the risk of stating the obvious, I’m a man, and I worry that women have already heard too much from men on this subject.
But I’ll put those sources of trepidation aside and do my best, such as it is.
To understand Dobbs, where it goes wrong, and where it leaves us, we need to go back a few years—well, quite a few, actually—to 1787. As the Constitution was being submitted to the states for ratification, the Anti-Federalists expressed an objection. They wanted to add a Bill of Rights to the document.
You’ll recall that the Anti-Federalists were profoundly suspicious of the centralized government embodied in the proposed Constitution. They wanted to add a Bill of Rights to make clear that the Constitution didn’t empower the federal government to do certain things, like deprive people of their freedom of speech.
The Federalists balked at the idea. They didn’t see the need to list rights that the federal government couldn’t infringe. Nothing in the Constitution said the government could infringe them, anyway, so why bother to say it?
More importantly, the Federalists thought such a list was dangerous. They worried that enumerating some rights might suggest that other rights didn’t exist or that those unenumerated rights had inferior status.
James Madison came up with a solution. He proposed adding an amendment that said that the listing of specific rights in the Constitution didn’t mean that additional rights didn’t exist or that those additional rights weren’t as significant as the enumerated ones.
So, after some trading of drafts, the Ninth Amendment found its way into the Constitution. It states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In other words, our Founders anticipated that some people might argue that if the Constitution didn’t expressly mention a right then that right didn’t exist. The Founders added the Ninth Amendment in order to make absolutely clear that this wasn’t the case.
It seems like a pretty simple idea, but there’s a complication baked into it. After all, the Ninth Amendment doesn’t answer a question that might occur to us: What are those “other” rights to which the Ninth Amendment refers and where do they come from?
That question turns out to be very important when we try to understand what’s going on in the Dobbs case.
One way to answer the question is to say that these additional rights come from various parts of the Constitution itself. The text doesn’t explicitly mention them, but if we look closely and thoughtfully enough we can find them there. And, precisely because the Constitution embodies them, they have the same force as the specifically enumerated rights, just like the Ninth Amendment says.
Freedom of association provides a good example of such a right. The Constitution nowhere expressly says that the government can’t prohibit me from associating with whomever I choose in order to talk and exchange ideas. But the Court has long held that this right exists and no sensible person has argued that it doesn’t.
In fact, it would be weird if we didn’t have a right to freedom of association. Take the very group to whom I’m speaking. If no right to freedom of association existed, then you’d have no right to gather together to discuss ideas of mutual interest and advance them in the public sphere.
Okay, so we now have three basic legal principles before us that we need to remember: First, rights may exist even though the Constitution doesn’t expressly mention them. Second, we find those other rights in the Constitution itself, implicit in its text. And, third, those rights are just as strong as the enumerated rights.
All of this sets the stage for the first of three important Supreme Court decisions I’m going to discuss with you, the 1965 case of Griswold v. Connecticut.
Griswold involved a Connecticut law that made it a crime for anyone to use a contraceptive drug or device of any kind. Penalties for violating the law included fines and jail terms. The law applied the same penalties to anyone who counseled someone else about using contraceptives.
A physician and the executive director of the Planned Parenthood League of Connecticut were arrested and charged with violating the statute. They challenged the constitutionality of the law and the Supreme Court accepted the case for review.
Through an opinion written by Justice William O. Douglas, the Court held the Connecticut statute unconstitutional. Of course, no provision of the Constitution expressly provides a right to use contraceptives or to counsel people about doing so. But remember: A right can exist even though the Constitution doesn’t explicitly mention it.
Justice Douglas began his opinion by noting previous cases where the Court had recognized rights that are not explicitly mentioned in the Constitution, like the right to freedom of association.
He then went on to reason that numerous constitutional provisions recognize some form of a right to privacy—for example, the right to privacy that protects us against unreasonable searches and seizures under the Fourth Amendment.
From these various enumerated rights, Justice Douglas inferred the implicit constitutional recognition of what he called a “zone of personal privacy.” He concluded that the decision to use contraceptives and to counsel people about doing so fell within the scope of that broader privacy right.
Some jurists and legal scholars agree with this reasoning. They think that embedded within the Constitution are principles of individual liberty, autonomy, and privacy that give us additional rights. They believe that those principles protect some very personal choices, like the decision to use contraceptives and the decision about who we wish to marry.
I’m among the scholars who think so. And I believe that Justice Douglas is on to something here: After all, the Fourth Amendment’s goal of protecting our privacy at home wouldn’t mean much if the government could dictate the decisions we make in our bedrooms.
Other legal scholars, many of whom come from the political right, disagree. They’re highly suspicious of any claimed right that the Constitution doesn’t expressly mention. They worry that the kind of reasoning Justice Douglas uses here allows the Supreme Court to make up whatever rights it wants, unmoored from any responsible constraints. They have a point.
But they also have a problem, and I think it’s a whopper.
If the other rights referenced in the Ninth Amendment don’t come from the text of the Constitution, then where do they come from? In my judgment, those scholars don’t have a satisfactory answer to that question.
Furthermore, their answers tend to suggest that those other rights are second-class rights. But that’s inconsistent with what the text of the Ninth Amendment says. And that’s awkward, because many of these scholars describe themselves as textualists who are dedicated to the words of the Constitution.
Alas, even those of us who agree with Justice Douglas’s conclusion can’t help but wince at one part of his opinion. After discussing the various implicit rights that the Court has recognized, he wrote: “The forgoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Scholars and jurists have struggled to discern exactly what he’s talking about here. In the context of constitutional interpretation, invoking ideas like “emanations” and “penumbras” seems terribly vague and mysterious. It’s a regrettable choice of words and, to make matters worse, it comes in a key part of the opinion.
At the time Griswold came down not many people cared about the worrisome language. Most sensible people thought a law against contraception was a stupid idea, anyway.
But many more people came to care about it later, when the privacy right recognized in Griswold laid the foundation for the privacy right recognized in Roe v. Wade—the second important case I’m going to discuss with you.
As you all know, Roe v. Wade involved a challenge to a Texas statute that criminalized all abortions, except in cases where it was medically necessary to save the life of the mother. At the time, many states had similar laws. Jane Roe, an unmarried pregnant woman who wanted to have an abortion but didn’t fit within the exception, challenged the constitutionality of the law. Her case wound its way to the Supreme Court of the United States.
The Court began its opinion by noting that Roe grounded her argument in the right to privacy recognized in Griswold. The Court acknowledged that the Constitution doesn’t expressly mention such a right. But the Court observed that it had on numerous previous occasions found a right to privacy implicit in the constitutional text.
Furthermore, in those prior cases the Court had found that right to encompass decisions that bear some resemblance to the decision to terminate a pregnancy. Those cases involved decisions around things like contraception, procreation, marriage, family relationships, and child rearing and education.
The Court found that this implicit privacy right also provided women with a right to choose to terminate their pregnancy.
Of course, the Court found that this right was not absolute and had to be weighed against important state interests. In the view of the Court, the state’s interest grew in magnitude as the fetus became viable and therefore a distinct “person” under the state’s protection.
As a result, the Court recognized a woman’s right to choose to terminate her pregnancy, but limited that right based on the state’s separate interest in protecting human life.
This reasoning led the Court to adopt the trimester approach with which all of you are probably familiar.
In sum, the Court held that: (1) The state couldn’t interfere in a woman’s decision during the first trimester; (2) During the period after the first trimester but before viability, the state could regulate abortion in limited ways; and (3) After the fetus attained viability, the state could more extensively regulate or even prohibit abortion, except where it was medically necessary to save the life of the mother.
Critics pounced on Roe, raising lots of objections. I’ll focus on three.
First, they pointed out that the Constitution nowhere expressly provides a right to privacy or a right to an abortion.
Second, they noted that Roe relied on the Court’s decision in Griswold, which included the worrisome language I discussed earlier. Critics characterized Roe as an intellectually sloppy decision that relied on an intellectually sloppy precedent.
Finally, they argued that the trimester approach wouldn’t be workable as medical science progressed. As medical science moved viability earlier and earlier, the state’s interest in the personhood of the fetus would be triggered earlier and earlier as well. Justice Sandra Day O’Connor observed that this put Roe on a “collision course with itself.”
Now, Roe was admittedly an imperfect decision. But Roe was necessarily imperfect because no perfect answer to the abortion question exists.
Indeed, with all questions of this complexity the law will always fail to arrive at a perfect answer. It just strives to land on the best imperfect answer it can find. That’s precisely what Roe tried to do.
Furthermore, in my view those three criticisms of Roe don’t amount to much. Let’s walk back through them.
As I’ve discussed, the Ninth Amendment disposes of the first objection—that the Constitution doesn’t provide such a right because the text doesn’t expressly mention it. The first argument is, therefore, no argument at all. Nevertheless, it has held a lots of popular appeal over the years. And stay tuned: We’ll hear it again.
Objections to Roe based on that brief, unfortunate passage in Griswold don’t strike me as having much merit, either. Regrettable word choices aside, I believe the substance of Griswold is correct.
Think of it this way: A constitutional right to privacy that protects you from unreasonable searches of your property but that doesn’t protect you from unreasonable government intrusions into your decisions about marriage, procreation, and child rearing would be a pretty anemic right.
It would also fail to protect some of the most critical dimensions of our human experience and some of the most important decisions we make.
Finally, it’s true that Roe’s use of the trimester system and the concept of viability is less than ideal—because, again, all answers to this complicated question are less than ideal. But it’s not fair to criticize Roe simply because what viability means may change over time.
Many constitutional standards are explicitly subject to change over time. In the First Amendment field, for example, the definition of “obscenity” depends in part on existing community values. Those can and will change over time. Our understanding of what amounts to “cruel and unusual punishment” under the Eighth Amendment can and will change over time.
In any event, these and other attacks on Roe started as soon as the decision came down. As a result, states began experimenting with various regulatory schemes that technically allowed abortion but that made it significantly more difficult for a woman to receive one.
As the Court became increasingly conservative, it issued decisions that upheld Roe but tended to narrow the right. Roe’s long-term future began to look less and less certain.
In a dissent in the 1989 case of Webster v. Reproductive Health Services, Justice Harry Blackmun—who had authored the Roe decision—concluded with these prophetic words: “For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”
Just three years later, in 1992, the Supreme Court issued its fragmented ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey. The controlling opinion in Casey reaffirmed the “essential holding” of Roe v. Wade and upheld a woman’s right to choose. But it also made some changes to the applicable legal framework.
Casey moved away from Roe’s trimester-based approach in favor of a more flexible medical definition of viability. And the Court adopted a test that focused on whether a legal restriction placed “substantial obstacles” before a woman who wished to terminate her pregnancy and thereby placed an “undue burden” on her right to make that choice.
This shift in approach led to even greater state experimentation with abortion restrictions. States aggressively tested the boundaries of a woman’s right to choose, setting the stage for Dobbs—the third important case I’ll discuss with you.
The collected opinions issued in Dobbs occupy more than 200 pages and I obviously can’t delve into every dimension of the case. So, I’m going to focus on Justice Samuel Alito’s majority opinion and on the places where I believe he went astray.
In my opinion there are, well, a lot of them.
Dobbs concerned a Mississippi law that generally prohibited an abortion after 15 weeks of pregnancy. That’s several weeks before medical science currently views a fetus as “viable” outside the womb.
In this respect, the law seemed facially inconsistent with both Roe’s trimester system and Casey’s viability standard. The statute therefore called the question of whether Roe and Casey remained the law of the land.
As you all know, in Dobbs the Supreme Court concluded that it did not.
So, let’s take a look at Justice Alito’s opinion and where I think he got things wrong.
In my view, the trouble starts early.
Justice Alito began his opinion with the observation that the Constitution nowhere mentions the right recognized in Roe and Casey. Indeed, he liked this point so much that he repeated it several times in his opinion, especially toward the beginning.
The point may have political appeal because it’s simple and sounds important. As I mentioned, this became a popular objection to Roe after the decision came down.
But, as I’ve also discussed at some length, the fact that the Constitution doesn’t mention a woman’s right to terminate her pregnancy doesn’t mean the right doesn’t exist. The Ninth Amendment makes this clear.
When a Supreme Court opinion dwells on a point that has more political than legal significance, it degrades the institution. I think that’s a shame.
Now, we might think that the opinion would instead have begun with a discussion of the Ninth Amendment. After all, we’re dealing with an unenumerated right and the Ninth Amendment helps us understand how to think about that.
But Justice Alito’s lengthy opinion makes only a passing reference to the Ninth Amendment. And his draft opinion, notoriously leaked before it was issued, didn’t mention the Ninth Amendment at all. I think that’s a shame, too.
Justice Alito went on to acknowledge—as he had to—that the Court has recognized rights the Constitution doesn’t expressly mention. Nevertheless, he concluded that the right to choose to terminate a pregnancy shouldn’t be among them.
In so finding, Justice Alito began by focusing mostly on Casey. He noted that Casey primarily based its recognition of a woman’s right to choose on “liberty” interests protected by the Fourteenth Amendment Due Process Clause. But “liberty,” Justice Alito cautioned, is a broad term that requires interpretation.
To understand the term, Justice Alito turned to history. This move toward history has become extremely popular among the current conservative majority of the Court. If we want to understand what a word or phrase in the Constitution means, then, according to these justices, we need to go looking for the meaning of that word or phrase at the time of the ratification.
In short, we have to become historians in search of the original meaning of the text.
The late Justice Antonin Scalia was a prominent proponent of this approach. Some scholars and justices have argued that the Founders intended the Constitution to be a living document, the meaning of which would evolve organically over time as the values, needs, and expectations of society changed. But Justice Scalia rejected this approach, famously declaring that he believed not in a living Constitution but in a dead one.
Critics have raised numerous objections to this historical approach.
One of them is that Supreme Court justices are not—by education or training—professional historians. And when those justices try to “do history” it doesn’t always go well.
Let me offer an example involving Justice Scalia himself. In 2008, the Court decided Heller v. District of Columbia and ruled that the Second Amendment gives individuals a right to bear arms. Justice Scalia’s long and detailed opinion for the majority purported to follow a historical approach.
But it’s not clear that Justice Scalia’s method would have earned him a passing grade in a college history seminar. First, in conducting his analysis he relied on definitions in old dictionaries. But professional historians have seriously questioned the reliability of doing so.
Second, when drawing from these dictionaries, Justice Scalia sometimes chose secondary definitions over primary ones. It appears he did so simply because he liked the secondary definitions better.
And, third, in his opinion Justice Scalia sometimes mixed in observations about the current state of affairs, like the present popularity of handguns as self-defense weapons. Those observations obviously have nothing to do with history.
Some consideration of historical context has a place in constitutional interpretation. But I think Supreme Court justices should embark on such projects with humility, recognizing that history isn’t actually what they do for a living.
I also think that making a fetish of history poses serious risks. It can lock us into antiquated and repressive ways of thinking about the world and our fellow human beings. It can leave us with a Constitution that is disconnected from contemporary life and experience.
Justice Alito’s historical examination of the concept of “liberty” provides a case in point. For example, he begins that study by consulting legal treatises from the early seventeenth century. It seems to me perilous to base our understanding of a woman’s “liberty” on one that was in vogue when women were still being hung and burned as witches.
Finally, it seems to me that a historical approach is of particularly little value where the constitutional language is vague, flexible, and clearly anticipates later elaboration and development.
We see another example of such language in the First Amendment’s protection of “speech.” There, the Court has had no difficulty concluding that the meaning of this word has evolved with the development of modern technologies like radio, television, the internet, and social media—even though James Madison spent very little time doomscrolling on Twitter.
The current Court’s purported dedication to a historical approach also raises questions of consistency. For example, a strict historical construction of the Second Amendment would conclude that the right to bear arms applies only to those weapons in existence in the late 18th century.
In the Heller case, Justice Scalia dismissed this reading of the Second Amendment as obviously silly. He may have been right about that. But I don’t understand why that approach is any less obviously silly when the Court is considering a woman’s liberty.
These objections notwithstanding, Justice Alito embarked on a lengthy examination of a wide array of historical sources. At the end he declared: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
In Justice Alito’s eyes, his historical analysis disposed of the reasoning in Casey.
Justice Alito turned next to the argument that a woman’s right to choose to terminate her pregnancy derived from the “privacy” right recognized in Roe v. Wade. Justice Alito acknowledged that the existence of an individual privacy right had been affirmed by numerous decisions from the Court. Those ranged from Griswold, which I discussed earlier, to Loving v. Virginia, which recognized a right to interracial marriage, to Lawrence v. Texas, which struck down a state anti-sodomy law, to Obergefell v. Hodges, which recognized a right to same-sex marriage.
Justice Alito dismissed all of these cases as irrelevant.
He argued that the right recognized in Roe differs from all of these other rights in a critical respect: Abortion necessarily raises the question of the rights of the unborn. He declared that the Constitution therefore doesn’t protect a woman’s right to choose and that the individual states must sort out this complicated moral question for themselves.
Justice Alito’s reasoning is troublesome for lots of reasons. I’ll mention two that seem to me particularly important.
First, the argument is logically invalid. A right doesn’t disappear simply because it comes into conflict with another right. To the contrary, rights come into conflict all the time—but still remain rights.
When that happens, the Court looks for a standard that tries to accommodate the conflicting rights as best it can. That’s precisely what both Roe and Casey tried to do.
Second, Justice Alito’s argument acknowledges that the decision to terminate a pregnancy implicates issues of morality and individual conscience. He says that abortion poses a “fundamental,” “ageless,” and “profound” moral question. I think he’s right about that.
Each woman must decide for herself how to make this decision based on the considerations that matter to her: her beliefs, her values, her faith or philosophy, her situation in life, the medical advice she has received, and so on.
But, from this correct premise, Justice Alito reaches what I view as an incorrect conclusion. He concludes that this is one reason it would be wrong to hold that the Constitution gives her the right to make that decision. Instead, we have to leave this issue to the states to sort things out as they see fit.
I think this has things exactly backward.
Throughout its history, the Supreme Court has repeatedly recognized that the Constitution protects matters of individual conscience from the tyrannies of the majority.
One of the most famous expressions of this principle comes from Justice Robert Jackson in the 1943 Barnette case, where he wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Over and over again, the Supreme Court has declared that every person’s conscience has a special standing in the constitutional order.
Until now.
Indeed, one of the most unsettling things about Dobbs is that it completely departs from this principle.
To understand how troublesome this aspect of Dobbs is, it helps to compare it with another case that the Supreme Court decided at roughly the same time, Kennedy v. Bremerton School District.
You may have heard of it. It has received a lot of media attention as well.
In the Kennedy case, the football coach at a public high school adopted a practice of kneeling midfield after games to offer a silent prayer. Although he initially prayed by himself, eventually students began to join him and he started to offer inspirational remarks.
The school became concerned that these activities conflicted with the Establishment Clause of the First Amendment, which requires separation of church and state. So, the school directed Kennedy to stop.
Kennedy told the school that his sincerely held religious beliefs compelled him to continue praying, but that he would do so only under certain circumstances. Kennedy said that he’d wait until the game was over and students were headed toward the locker room or the bus or were otherwise occupied. Concerned that this approach might still violate the Establishment Clause, the school responded by telling Kennedy that he could not engage in any actions that appeared to endorse prayer while he was on duty as coach.
The controversy didn’t go away. Sometimes players from the opposing team joined him on the field to pray. Sometimes members of the community did so. The school remained concerned, placed him on administrative leave, and then decided not to re-hire him for the next season. Kennedy sued.
In upholding Kennedy’s right to engage in these prayers, the Supreme Court described how the lower courts had gone astray. The lower courts had given Kennedy’s conscience no consideration whatsoever, an outraged Supreme Court declared.
In Kennedy, as in Dobbs, the Court held that the correct legal test was a historical one: Would the practice at issue have been permissible in the eyes of the Founding Fathers? If so, then that ends the inquiry.
The Court reasoned that nothing in the history of the Establishment Clause suggested that the founders would have viewed the coach’s brief and personal post-game prayer as problematic.
The Court concluded its opinion by celebrating Kennedy’s faith and his right to exercise it.
“Respect for religious expressions,” the Court declared, “is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.”
In Kennedy, the Court saw conscience as an individual matter, very much in the spirit of Barnette. The Constitution leaves to me the decision of whether I will pray faithfully or rail against God, whether I will salute the flag or burn it, whether I will pledge allegiance or take a knee.
I have the freedom to make those choices without putting them to a vote.
We don’t throw our hands up and say we’ll give the issue to the states and let the majority dictate our conscience for us. To the contrary, the Bill of Rights exists to insulate a person’s moral choices from exactly those political forces.
And that brings us back to Dobbs. As I noted, Justice Alito acknowledges—repeatedly—that the issues implicated by abortion are moral ones.
But, in this context, the Court gave no weight at all to the individual conscience of a woman deciding whether to terminate her pregnancy. None. Zero.
That is a remarkable contrast with the Court’s approach in the Kennedy case. In Kennedy, the football coach’s choice to pray after a football game received so much deference that it seems as if nothing short of a disapproving note personally signed by Thomas Jefferson would have induced the Court to find the practice unprotected.
In Dobbs, however, the Court treats a woman’s choice to terminate her pregnancy as just another one of life’s many decisions. No rights to see here. Move along, please.
Presumably it would have made no difference to the Court if the woman reached this decision after praying devotedly, consulting the sacred texts of her faith, and talking with her ordained spiritual advisor. Her conscience would still count for nothing. Nothing at all.
To compound the problem, Dobbs relocates this matter of conscience to the will of the majority within each state. The states can figure out how to balance the competing “interests,” the Court declares.
But this reasoning empowers the states to give the woman’s conscience no weight at all—which is exactly what a number of states have done in the so-called “balancing” process that has ensued post-Dobbs.
Imagine a similar move in Kennedy. Imagine the Court saying: “Well, some people find prayer by public school employees inspirational; others find it offensive; we’ll let the states sort it out.” Such a result is unthinkable. In my opinion, it should have been unthinkable in Dobbs as well.
At the time the Court decided Dobbs and Kennedy it also decided a case called Bruen. In Bruen, the Court struck down New York’s century-old firearms regulation under the Second Amendment.
At the end of the opinion, the Court huffily declared that the Second Amendment is not a second-class right. I’m troubled by the comfort the same Court apparently felt in endowing women with a second-class conscience.
Toward the end of his opinion, Justice Alito addressed the issue of stare decisis. That’s the legal principle that says a prior decision of the Court should stay in place unless really good reasons exist to abandon it.
The principle serves important interests, like maintaining stability and predictability within the law. Honoring precedent also helps preserve the Court’s institutional integrity and insulate it from charges that it’s just another assemblage of Washington politicians. For these and other reasons, Justice Louis Brandeis once observed that it’s often more important to have an issue settled than to have it settled correctly.
Strong arguments existed for the Court in Dobbs to continue to honor Roe, even if a majority of the Court disagreed with Roe’s reasoning and holding. After all, the decision had been around for half a century. And millions of people had come to depend on the right it afforded.
The three Republican-appointed justices who wrote the controlling opinion in Casey had no great affection for Roe. But they were sympathetic to this reliance argument.
Indeed, that opinion said: “An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.” That opinion also observed that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
None of this moved Justice Alito. He dismissed Casey’s talk about reliance. And he declared that the Court “is ill-equipped to assess ‘generalized assertions about the national psyche.’”
I will confess to being puzzled by a jurisprudence in which justices have no reliable sense of what’s going on in the world around them but can accurately determine the meaning that particular words held for people who have been dead for three hundred years.
One last comment about Dobbs.
After Dobbs came down, questions immediately arose about which right (or rights) the Court may take away next. Indeed, Justice Clarence Thomas’s concurring opinion suggests that the Court should revisit its privacy jurisprudence more broadly. This could put at risk the rulings in important cases that have recognized rights to contraception, interracial marriage, and same-sex marriage.
It could even put at risk rulings that recognized parental rights. I find that ironic, since opponents of Proposal 3 in Michigan have invoked those rights on their yard signs.
Other conservative justices have made statements indicating that Dobbs does not threaten those other precedents. Those statements may afford cold comfort. After all, some of those same justices told Congress during their confirmation hearings that they respected Roe as precedent.
The optimist in me doubts that the Court has much appetite for more of the blowback it received after Dobbs. I think it’s likely that those other precedents will remain intact.
But sometimes the pessimist in me takes over. And, when it does, all I can hear are those haunting words of Justice Blackmun:
“The signs are evident and very ominous, and a chill wind blows.”
