Does the Dobbs v. Jackson decision herald the end of the era of the Supreme Court legislating from the bench? In his opinion agreeing with Justice Samuel Alito’s majority decision overturning Roe v. Wade, Justice Clarence Thomas stated that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” that is, the Supreme Court decisions that discovered “rights” to contraception, homosexual activity, and same-sex marriage. Contrary to Leftist hysteria, this doesn’t mean that these things will suddenly be outlawed and we will be plunged into a Leftist nightmare world of Handmaid’s Tale pseudo-Christian theocracy: just as Dobbs doesn’t actually outlaw abortion but leaves it up to the states, so any overturning of those other rulings would throw those issues back to the states as well. it only means that the possibility has opened anew that the Supreme Court might actually base its decision on law, not on the Leftist agenda.
Thomas explained that Griswold, Lawrence, and Obergefell needed to be reconsidered “because any substantive due process decision is ‘demonstrably erroneous.’”
“Substantive due process” refers to “rights” that are founded in the reasoning first enunciated in Griswold v. Connecticut: specific guarantees in the Bill of Rights have “penumbras, formed by emanations,” that create “zones of privacy.” Thus the Roe v. Wade decision referred to rights of “personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.”
A “penumbra” in this usage refers to a right that isn’t actually stated in the founding documents, but which is supposedly implied in them, at least in the opinion of Leftist Supreme Court Justices. That kind of jurisprudence can lead to literally anything being held as Constitutionally justified, and that’s just the problem. Justice Alito wrote in his Dobbs v. Jackson decision that Roe v. Wade was “egregiously wrong and on a collision course with the Constitution from the day it was decided,” precisely because it was based not on anything that was actually written in the Constitution, but on a “penumbra” that Justice Harry Blackmun and his colleagues who voted for Roe claimed to find there.
This is why the Left’s hysterical claims about the overturning of Roe v. Wade leading inevitably to the overturning of all sorts of other laws that everyone takes for granted, and leading even to the restoration of slavery, is completely baseless. The prohibition of slavery is based on the Thirteenth Amendment to the Constitution; to remove a Constitutional amendment would require a new Constitutional amendment, and to get that, one would need two-thirds of the House of Representatives and the Senate, plus three-fourths of the state legislatures. What are the chances of that happening? About nil, especially since no one is advocating for the return of slavery anyway, no matter what deranged Leftist propagandists are saying.
Roe v. Wade, by contrast, was not a Constitutional amendment, but merely an interpretation of the Constitution, and a highly dubious one at best. If Leftists wanted to make abortion a protected and unassailable Constitutional right, they would need to get a Constitutional amendment guaranteeing its legality, and for that also they would need two-thirds of the House of Representatives and the Senate, plus the approval of 38 states.
It was in large part because that was never going to happen that Leftists have clung so tenaciously to Roe v. Wade. As poorly reasoned and disingenuous as it was, it was the best they could hope for in guaranteeing their “right” to murder children and sanctify selfishness and irresponsibility as “reproductive freedom.” Now it is certain that some states will outlaw abortion altogether, although Biden’s handlers have already announced that they will be doing all they can to stop such efforts in their tracks.
Even if they succeed, they may be enjoying a pyrrhic victory. Thomas, and Dobbs v. Jackson in general, have given the practice of legislating from the bench a body blow from which it may not recover. Thomas pointed out that “substantive due process is often wielded to ‘disastrous ends,’” and illustrated his point with a reference to the notorious Dred Scott v. Sandford decision that declared that slaves brought into federal territories that outlawed slavery were still slaves. He noted that Dred Scott was only overruled “at the price of immeasurable human suffering,” and that Roe and its companion judgment Casey were “two of this Court’s ‘most notoriously incorrect’ substantive due process decisions,” and were only overturned “after more than 63 million abortions have been performed.” Thomas concluded, “The harm caused by this Court’s forays into substantive due process remains immeasurable.”
Indeed. And so, Thomas said, quoting the late Justice Antonin Scalia, “in future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.’…Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” Yes, we should. And let the Left howl.