Where to even begin?
In a normal world (or whatever that means) the big news of the week would have been the January 6th committee. It continues to lay out a devastating case against the former president and has even called a special session that wasn’t originally scheduled because of new evidence it has received while the proceedings have been going on. So it’s a pretty juicy story. And the bombshells that it dropped this week were pretty big, no doubt. But it has to share the headlines. I mean, we’re basically having public hearings on whether a sitting president fomented insurrection, and it’s not the major news of the day. That cannot be a good sign for us, as a nation.
The bigger stories, as you may well know if you are part of my American audience, and likely do, too, even if you are one of my international listeners, come from the Supreme Court.
In the last week the SCOTUS has expanded gun rights, which seems particularly insidious in the wake of Uvalde, gutted Miranda, which given the number of people who are probably being arrested protesting their OTHER decisions right now strikes me as rather malicious, over turned Roe v. Wade, upending almost 50 years of precedent and rolling back reproductive rights, marking the first time the Court has EVER taken AWAY a right as opposed to granting one, and the Court has further etched away at the separation of church and state in TWO significant ways, both dealing with religion and schools. That’s, as the kids would say, a lot. And each of these is something I would normally cover on this podcast, but obviously I can’t do it all in one week. So I’m going to hit a few of them over the coming weeks, assuming nothing hugely drastic happens along the way. That’s a pretty big assumption these days, but I’m going to think positive thoughts.
But we’re going to start with the big one. The one that has made such a stir that papers across the world have carried the story, run political cartoons about it, written editorials and think pieces, and stirred people across America on all sides of the aisle.
I’m talking, of course, about Dobbs v. Jackson Women’s Health Organization. The case that overturned Roe and Casey.
Now, when the initial opinion was leaked, we did an episode on Roe. That opinion didn’t change much between the leaked draft and the opinion that was released on the 24th. So today I’m going to spend my time on what we weren’t prepared for – the concurrences. We’ll get to the dissent next week.
In case you’re not familiar here’s a little terminology for you – a majority or plurality opinion is the “winning” opinion of the Court. Concurring opinions are opinions from Justices who agree with the decision but want to present their own reasoning. Maybe they agree with the decision but not with the reasoning, or they think something needs to be added, or something along those lines. But for whatever reason they think there is something else that needs to be said other than the actual opinion. There aren’t always concurring opinions. Sometimes a concurring opinion can signal that the case was somehow more controversial than usual. Then there is a dissent. A dissent comes from the justice or justices that disagree with the Court’s ruling. They explain why they disagree with the ruling, and they are (usually) just as well-formed and legalistic as the majority opinion. Some people question what the point of a dissent is if they lost, but dissents can be very important historically, because as times change the legal reasoning of a strong dissent can sometimes become just as important as a majority opinion, and sometimes a good dissent can become the basis for a legal argument later on down the line. So a strong dissent is an important thing. Antonin Scalia was known for being a strong, and somewhat acerbic dissenter. And, of course, Ruth Bader Ginsburg was famous for her dissents. We even have a party game in my house called “I Dissent” that my kiddo loves to play based on the concept of dissenting arguments that is an homage to RBG. We are very cool in my house and not nerdy at all.
The first concurring opinion, and the one that has gotten the most public attention, is from
Clarence Thomas. Thomas is the most conservative member of the Court, and is, and always has been a controversial figure. Thomas’s confirmation hearing was marred by the accusations of Anita Hill. Hill was called before the Judiciary Committee and testified that ten years earlier Thomas had subjected her to comments of a sexual nature, which she felt constituted sexual harassment — in her words “behavior that is unbefitting an individual who will be a member of the Court.” Hill’s testimony included lurid details, and some senators questioned her aggressively. Throughout his testimony, Thomas defended his right to privacy. The irony of this will become clear in a few minutes. He made it clear that he was not going to put his personal life on display for public consumption, permit the committee (or anyone else) to probe his private life, or describe discussions that he may have had with others about his private life. The committee accepted his right to do so.
Hill was the only person to publicly testify that Thomas had sexually harassed her. Angela Wright, who worked under Thomas at the EEOC before he fired her, decided not to testify. Given Hill’s treatment by the committee, this was an understandable decision. Hill’s public flogging was a clinic in sexism. Wright submitted a written statement alleging that Thomas had pressured her for a date and had made comments about the anatomy of women but said she did not feel his behavior was intimidating, nor did she feel sexually harassed, though she allowed that “[s]ome other women might have.” Sukari Hardnett, a former Thomas assistant, wrote to the Senate committee that although Thomas had not harassed her, “If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female.”
Current controversy hounds Thomas as well, largely due to his wife Virginia (Ginni) Thomas. The Washington Post reported in February 2021 that Ginni Thomas apologized to a group of Thomas’s former clerks on the email listserv “Thomas Clerk World” for her role in contributing to a rift relating to pro -Trump postings and former Thomas clerk John Eastman, who spoke at a rally and represented Trump in some of his failed lawsuits filed to overturn the election results. In March 2022, texts between Ginni Thomas and Trump’s chief of staff Mark Meadows from 2020 were turned over to the Select Committee on the January 6 Attack. The texts show Ginni Thomas repeatedly urging Meadows to overturn the election results and repeating conspiracy theories about ballot fraud. In response, 24 Democratic members of the House of Representatives and the Senate demanded that Thomas recuse himself from cases related to efforts to overturn the results of the 2020 presidential election and the January 6 attack at the U.S. Capitol on the grounds that Ginni Thomas’s involvement in such efforts raises questions about his impartiality.
Thomas’s concurring opinion was definitely the most radical and regressive opinion of any offered in the Dobbs case. He writes that he agrees with Alito that abortion is not a right guaranteed by the constitution because “under our substantive due process precedents, the purported right to abortion is not a form of “liberty” protected by the Due Process Clause. Such a right is neither “deeply rooted in this Nation’s his-tory and tradition” nor “implicit in the concept of ordered liberty.” But Thomas takes it a few steps further.
It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what pro-cess is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992). As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., con-curring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”).
“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDon-ald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., con-curring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
So Thomas is arguing to do away with substantive due process completely. Substantive due process is a principle that allows courts to establish and protect certain fundamental rights from government interference, even if procedural protections are present or the rights are unenumerated. Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference.
Substantive due process is to be distinguished from procedural due process. The distinction arises from the words “of law” in the phrase “due process of law”. Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority: courts may find that a majority’s enactment is not law and cannot be enforced as such, regardless of whether the processes of enactment and enforcement were actually fair.
But Thomas would do away with it entirely. The effect of that CANNOT be overstated. We are talking about a slew of people’s assured rights just – whoosh – gone – without substantive due process.
And Thomas is very clear about his intentions, here. He says,
The Court today declines to disturb substantive due pro-cess jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain con-
traceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Oberge-fell v. Hodges, 576 U. S. 644 (2015) (right to same-sex mar-riage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amend-ment jurisprudence must be preserved or revised,” McDon-ald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be under-stood to cast doubt on precedents that do not concern abor-tion.” Ante, at 66. For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, includ-ing Griswold, Lawrence, and Obergefell. Because any sub-stantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., con-curring) (slip op., at 9). After overruling these demonstra-bly erroneous decisions, the question would remain whether other constitutional provisions guarantee the myr-iad rights that our substantive due process cases have gen-erated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.
So Thomas would jettison substantive due process entirely. And because of that we need to reconsider the rights we have called protected in the past. Thomas believes we need to go further in stripping Americans of their rights because he does not believe in a Constitutional doctrine that has been around since the 1930s.
As for privacy, which was the lynchpin to Roe, he says,
Nowhere is this exaltation of judicial policymaking clearer than this Court’s abortion jurisprudence. In Roe v. Wade, 410 U. S. 113 (1973), the Court divined a right to 5
abortion because it “fe[lt]” that “the Fourteenth Amend-ment’s concept of personal liberty” included a “right of pri-vacy” that “is broad enough to encompass a woman’s deci-sion whether or not to terminate her pregnancy.” Id., at 153. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court likewise identified an abor-tion guarantee in “the liberty protected by the Fourteenth Amendment,” but, rather than a “right of privacy,” it in-voked an ethereal “right to define one’s own concept of ex-istence, of meaning, of the universe, and of the mystery of human life.” Id., at 851. As the Court’s preferred manifes-tation of “liberty” changed, so, too, did the test used to pro- tect it, as Roe’s author lamented. See Casey, 505 U. S., at 930 (Blackmun, J., concurring in part and dissenting in
part) (“[T]he Roe framework is far more administrable, and far less manipulable, than the ‘undue burden’ standard”).
It is ironic that here he is dubious about a woman’s right to privacy when during his hearings he was so adamant about his own. This is largely indicative of this Court’s attitude toward women – our rights are negligible while men’s are sacrosanct.
The second concurring opinion comes from Brett Kavanaugh. He is no less controversial than Thomas and his legitimacy when it comes to talking about women’s rights is questionable, at best. In July, 2018, Christine Blasey Ford accused Kavanaugh of sexually assaulting her in the early 1980s. Three other women also accused Kavanaugh of sexual misconduct, one of whom later recanted her story. None of the accusations were corroborated by eyewitness testimony, and Kavanaugh denied them. The Senate Judiciary Committee held a supplemental hearing over Ford’s allegations. Afterward, it voted 11–10 along party lines to advance the confirmation to a full Senate vote. On October 6, the full Senate confirmed Kavanaugh by a vote of 50–48. During his hearings women everywhere watched in horror as this man completely lost his cool and became a hysterical, angry kid throwing a tantrum while Ford calmly and bravely told her story of sexual assault. Women were once again reminded that even if they come forward, they will not be believed, even if their attacker is a wailing child about his denials.
Kavanaugh tries to play both sides of the issue in his opinion, as if he were the fair-minded Justice. He begins with a long sermon about how this is a complicated issue and both sides have weighty and good arguments.
But, he says,
The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. To be sure, this Court has held that the Constitution protects un-enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in Amer-ican history and tradition, as the Court today thoroughly explains.
He says the Constitution is neutral on abortion. It makes no claims, arguments, or proclamations on the issue. It is not a part of that document.
And so, he says,
Because the Constitution is neutral on the issue of abor-tion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the
constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.
Instead of adhering to the Constitution’s neutrality, the Court in Roe took sides on the issue and unilaterally de-creed that abortion was legal throughout the United States
up to the point of viability (about 24 weeks of pregnancy). The Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of dem- ocratic self-government established by the Constitution.
Some amicus briefs argue that the Court today should not only overrule Roe and return to a position of judicial neu-trality on abortion but should go further and hold that the Constitution outlaws abortion throughout the United States. No Justice of this Court has ever advanced that po-sition. I respect those who advocate for that position, just as I respect those who argue that this Court should hold that the Constitution legalizes pre-viability abortion throughout the United States. But both positions are wrong as a constitutional matter, in my view. The Consti-tution neither outlaws abortion nor legalizes abortion.
To be clear, then, the Court’s decision today does not out-law abortion throughout the United States. On the con-trary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion. As Justice Scalia stated, the “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 979 (1992) (opin-ion concurring in judgment in part and dissenting in part).
What is legally interesting in Kavanaugh’s opinion is his justification for his decision. Kavanaugh had been asked in his confirmation hearings about Roe and he had said it was settled law and he would leave it at that. The precedent had been set. So what was his justification for this turnabout?
But that history alone does not answer the critical ques-tion: When precisely should the Court overrule an errone-ous constitutional precedent? The history of stare decisis in this Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests. See Ramos v. Louisiana, 590 U. S. ___, ___−___ (2020) (KAVANAUGH, J.,concurring in part) (slip op., at 7−8). Applying those factors, I agree with the Court today that Roe should be overruled. The Court in Roe erroneously as-signed itself the authority to decide a critically important moral and policy issue that the Constitution does not grant this Court the authority to decide. As Justice Byron White succinctly explained, Roe was “an improvident and extrav-agant exercise of the power of judicial review” because “nothing in the language or history of the Constitution” sup-ports a constitutional right to abortion. Bolton, 410 U. S., at 221−222 (dissenting opinion).
So basically, he had to overturn Roe because it was just SO wrong and had caused SO many problems. Precedent didn’t matter because it was just SO bad, regardless of whether people felt it protected rights or public opinion or women’s lives or any of that – it was just TOO bad. You have to understand – this is elevating this decision to the likes of Brown v. Board of Education which overturned Plessy v. Ferguson. THAT’S what rejecting precedent looks like. But the difference is, Brown granted rights, and Dobbs takes them away. So it’s hardly an apt comparison.
Finally, there is Justice John Roberts concurring opinion. His is the most measured, but still strikes Roe down.
Today, the Court nonetheless rules for Mississippi by do-ing just that. 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 de-cisis analysis. That line never made any sense. Our abor-tion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—
certainly not all the way to viability. Mississippi’s law al-lows a woman three months to obtain an abortion, well be-yond the point at which it is considered “late” to discover a pregnancy. See A. Ayoola, Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing 462 (2015) (preg- nancy is discoverable and ordinarily discovered by six weeks of gestation). I see no sound basis for questioning the adequacy of that opportunity. But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is nec-essary not to decide more. Perhaps we are not always per-fect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely, we should adhere closely to principles of judi-cial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaf-firmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues can not compensate for the fact that its dramatic and conse-quential ruling is unnecessary to decide the case before us.
What Roberts is concerned with is the timing of things. He thinks the viability line that has been used by previous decisions is somewhat arbitrary and that makes decisions like this one harder. He is deciding this case not on the merits of abortion, but on the basic elements of the case – WHEN a woman can have an abortion.
None of this, however, requires that we also take the dra-matic step of altogether eliminating the abortion right first recognized in Roe. Mississippi itself previously argued as much to this Court in this litigation.
When the State petitioned for our review, its basic re-quest was straightforward: “clarify whether abortion prohi-bitions before viability are always unconstitutional.” Pet. for Cert. 14. The State made a number of strong arguments that the answer is no, id., at 15–26—arguments that, as discussed, I find persuasive. And it went out of its way to make clear that it was not asking the Court to repudiate entirely the right to choose whether to terminate a preg-nancy: “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.” Id., at 5. Mississippi tempered that statement with an oblique one-sentence footnote intimating that, if the Court could not reconcile Roe and Casey with current facts or other cases, it “should not retain erroneous precedent.” Pet. For Cert. 5–6, n. 1. But the State never argued that we should grant review for that purpose.
After we granted certiorari, however, Mississippi changed course. In its principal brief, the State bluntly an-nounced that the Court should overrule Roe and Casey. The
Constitution does not protect a right to an abortion, it ar-gued, and a State should be able to prohibit elective abor-tions if a rational basis supports doing so. See Brief for Pe-titioners 12–13.The Court now rewards that gambit, noting three times that the parties presented “no half-measures” and argued that “we must either reaffirm or overrule Roe and Casey.”Ante, at 5, 8, 72. Given those two options, the majority picks the latter.
This framing is not accurate. In its brief on the merits, Mississippi in fact argued at length that a decision simply rejecting the viability rule would result in a judgment in its favor. See Brief for Petitioners 5, 38–48. But even if the State had not argued as much, it would not matter. There is no rule that parties can confine this Court to disposing of their case on a particular ground—let alone when review was sought and granted on a different one. Our established practice is instead not to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 450 (2008) (quoting Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J.,
concurring)); see also United States v. Raines, 362 U. S. 17,
Following that “fundamental principle of judicial re-straint,” Washington State Grange, 552 U. S., at 450, we should begin with the narrowest basis for disposition, pro-ceeding to consider a broader one only if necessary to re-solve the case at hand. See, e.g., Office of Personnel Man-agement v. Richmond, 496 U. S. 414, 423 (1990). It is only where there is no valid narrower ground of decision that we should go on to address a broader issue, such as whether a constitutional decision should be overturned. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S.
449, 482 (2007) (declining to address the claim that a con-stitutional decision should be overruled when the appellant prevailed on its narrower constitutional argument).
Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: rec- ognize that the viability line must be discarded, as the ma-jority rightly does, and leave for another day whether to re-ject any right to an abortion at all. See Webster v. Reproductive Health Services, 492 U. S. 490, 518, 521
(1989) (plurality opinion) (rejecting Roe’s viability line as “rigid” and “indeterminate,” while also finding “no occasion to revisit the holding of Roe” that, under the Constitution, a State must provide an opportunity to choose to terminate a pregnancy).
So Roberts agrees with the decision but takes a very different position on the reasoning. But that might be cold comfort for American women.
So these concurring opinions present a somewhat disparate, and in some ways harrowing picture of the Dobbs decision. We know Roe is overturned. But the lengths to which that decision goes is debatable. If you go with Thomas’s readings all sorts of rights are in danger. Alito, in his majority opinion says that is not the case. But the ideas are out there. Those who are against civil liberties will be tempted to draw on these concepts for their crusades.
So next week we’ll look at the dissent. A lot of people are hoping that one day the dissent will rule the day, so it merits some attention. But for now, the people we have to be concerned about are Alito and Thomas.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.