Dobbs 3. What’s Next?
When Justice Samuel Alito wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, stripping American women of the Constitutional right to make their own healthcare decisions and making the personal religious dogma of the majority the law of the land, he tried to reassure the shocked nation that other rights would not be endangered by future decisions, writing, “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.”
Justice Brett Kavanaugh went so far as to put down his beer and write a separate concurring opinion specifically naming cases people arguing that Roe v Wade be upheld see at risk:
First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents.
I don’t buy a word of it.
To believe other rights are not in danger you would have to be as naïve as Senators Susan Collins and Joe Manchin. I think, and certainly hope, my readers are smarter than that.
For once in his life it may be Justice Clarence Thomas who is unabashedly telling the truth. Thomas could keep a mental health professional fully employed just by dealing with his neurosis, but his repressive self-loathing is on display for anyone who has taken an elementary psychology course. Of legal interest is the fact that he is a walking talking conflict of interest. But the most egregious of his conflicts involve his wife, Virginia “Ginni” Thomas.
Ginni represents many companies and others with business before Congress and the courts. But her husband refuses to recuse himself when sitting on cases involving them. Recently we have read emails released by the House Select Committee to investigate the January 6th Attack on the United States Capitol revealing that Ginni Thomas worked with Trump lawyer John Eastman, who had written a detailed plan to attempt to persuade then-Vice President Mike Pence to throw out the 2020 election results on Jan. 6. Ginni urged Arizona lawmakers to replace their electors, pledged to Joe Biden by popular vote, with electors supporting Donald Trump. Ginni won’t appear before the January 6th Committee. And Clarence won’t recuse himself from cases regarding the more than eight hundred, at this writing, people charged with crimes in connection with the scheme to overturn the 2020 election.
But on the question of overturning fundamental rights, Thomas tells us in a concurring opinion to Dobbs exactly what he has planned:
in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive 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., concurring) (slip op., at 9).
What Thomas is correctly pointing out is that the majority, in striking the right to abortion after fifty years, questions the Roe majority’s use of a legal doctrine known as “Substantive Due Process,” which I discuss at some length in my last column. If the use of substantive due process was “egregiously wrong” in Roe, how could it not be egregiously wrong in other cases, which relied on the same doctrine?
If the Court can differentiate in future cases, as Alito and Kavanaugh suggest in Dobbs, involving other rights, from Roe, it just demonstrates how Dobbs is not based on Constitution or law but is based on the personal views of the new religious majority. The Dobbs majority is capricious and fanatical. They have hated Roe for fifty years. Now they finally have the votes to overturn it. So they did. It is a power trip, pure and simple.
And what are the cases Thomas suggests will be up for review in the years ahead? Griswold v. Connecticut, the right to use contraception, Lawrence v Texas, gay rights, and Obergefell v. Hodges, same-sex marriage.
There is another case, also relying on substantive due process, that Thomas suspiciously omits from his target list. It is Loving v. Virginia, a 1967 ruling that declared it unconstitutional to ban interracial marriage. That decision was written by then Chief Justice Earl Warren himself. How could Thomas miss that? Could it be because Clarence Thomas is black? And his wife Ginni is white?
We have replaced the Congress, the President, and the Constitution itself and are now subject to the whims of a power-hungry majority on the Supreme Court. They need no rhyme or reason for their decisions. They impose their will on the nation simply because they can.
And if you still have any doubt about the rise of the religious majority, read the 6-3 decision which came down the next business day after Dobbs. Justice Neil Gorsuch, occupying the seat rightfully belonging to Merrick Garland, raised Catholic but now attending an Episcopalian church, writing in Kennedy v. Bremerton School District, sent the doctrine of separation of church and state, dear to the Framers, to the shredder.
The case asked if Joseph Kennedy, a high school football coach, had a First Amendment right to pray with students at the 50-yard line after games. According to some teammates, this practice coerced players into joining, and practicing Christianity at school, for fear of incurring the coach’s disfavor. Nonetheless, Gorsuch’s opinion for the court found that Kennedy’s school violated his rights when it asked him to pray in private.
Gorsuch followed the Trump playbook in endorsing his own version of the big lie in Kennedy, writing that Coach Kennedy was simply engaged in quiet, private prayer at the 50-yard line and students voluntarily joined him. Justice Sonia Sotomayor outed Gorsuch as a liar by including photographs in her dissent, something I’ve never seen in a Supreme Court opinion. The pictures showed there were TV cameras present and elected officials and people were storming the field and knocking over the tuba players to join the prayer.
Gorsuch also lied in the manner of Trump by stating that a prior test for church and state situations, to determine if the First Amendment prohibition against establishing a religion and derived from the 1971 case Lemon v. Kurtzman, was dead, “The country didn’t know it, but we quietly overruled the Lemon test at some stage in the past 20–30 years. I’m not going to pinpoint when, but trust us—it happened.”
Trust him? I have a bridge to sell you.
Gorsuch is always certain of the power of his argument. For him, it’s damn the facts. Full speed ahead. In Kennedy, he tells students who are not religious, who felt coerced into joining the prayer circle, that they should just be more tolerant.
Any reasonable observer would look at what Kennedy did and say, this is an endorsement of Christianity. This is an employee of the school, in uniform, in the middle of his official duties, expressing thanks to a Christian God. Gorsuch gets around that problem by saying, “That test is overruled. We have a new test, which is ‘history and tradition.’ Go back and figure out what James Madison would’ve wanted in public schools today.” And the majority’s policy preferences turn out to match their own personal preferences, which becomes their imagined idea of what James Madison would’ve wanted.
Do you think it would have turned out this way if the coach were a Muslim and he brought his prayer rug to the fifty-yard line?
And the religious majority didn’t stop there. The next day they effectively declared that the separation of church and state, a principle enshrined in the Constitution, is, itself, unconstitutional. Their 6–3 decision in Carson v. Makin requires Maine to give public money to private religious schools, steamrolling decades of precedent in a race to compel state funding of religion. Carson is radical enough on its own, but the implications of the ruling are even more frightening. As Justice Stephen Breyer noted in dissent, it has the potential to dismantle secular public education in the United States.
It was Breyer’s last dissent. He retired two days later after 28 years on the Court, fighting the good fight for the rights of ordinary Americans. Ketanji Brown Jackson, the Court’s first black, female Justice, was immediately sworn in as Breyer’s successor. But that will not change the ideological balance of the Court. Breyer, 83 years old, had stepped aside so the 51-year-old Jackson could be appointed, just in case the Republicans gain control of the Senate in the mid-term elections.
Breyer’s was a sacrifice we should all appreciate.
Great piece. IMO, Loving can be distinguished from the other cases you cite because race is at the heart of it. Here’s the text of the 15th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” That’s not true in Obergefell, for example.
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Thanks. You raise a good point. Although the 15th Amendment specifically talks about voting, nothing else.
Another great piece Scott! Thank you.
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