The recent U.S. Supreme Court decision to end a women’s constitutional right to an abortion looks to signal a new era for the court now anchored by a conservative majority eager to flex its muscles on a range of issues.
Samuel Marcosson, a constitutional law professor at the University of Louisville, equates the shockwaves from the recently completed court term – which included the abortion ruling as well important decisions on gun rights and religious liberties – to the dropping of the first atomic bomb.
“I think the Supreme Court and its direction changed just as irrevocably for at least decades to come with this last term,” says Marcosson.
The abortion case, Dobbs v. Jackson Women’s Health Organization, involved a Mississippi law banning the procedure after the first 15 weeks of pregnancy. But the court majority used Dobbs to say there is no constitutional right to an abortion. In overturning Roe. v. Wade after nearly 50 years, the court said that abortion is a matter that should be decided at the state level.
Marcosson and fellow constitutional law professor Paul Salamanca of the University of Kentucky Rosenberg College of Law say that Chief Justice John Roberts sided with the majority to uphold the Mississippi ban but didn’t agree with overturning Roe.
“Roberts has a style or an approach that’s described as incremental,” says Salamanca. “He likes to make smallest decision possible, typically speaking, that will resolve the case and make, relatively speaking, as little new law as possible.”
Roberts is no less conservative on many issues than the other five conservative members of the court, according to Salamanca. But he says the chief justice’s incremental nature may isolate him on certain issues from the more activist conservatives on the court.
And because there are now so many conservative justices present, Marcosson says they don’t need the chief justice’s vote to secure a majority opinion.
“Roberts no longer has control of the direction or the scope of what the court’s going to do,” says Marcosson.
Procedural Rights Versus Substantive Due Process Rights
In his concurring opinion, Justice Clarence Thomas signaled other cases he thinks the court should reconsider: Obergefell v. Hodges on same-sex marriage, Lawrence v. Texas on same-sex relationships, and Griswold v. Connecticut on access to contraception.
Like Roe v. Wade, those three cases hinged on what is known as substantive due process. That’s a principle in constitutional law that enables courts to create and then protect certain rights – such as a right to privacy or a right to an abortion – that aren’t explicitly mentioned in the U.S. Constitution.
But Thomas and other conservatives don’t agree with that doctrine, saying that the Constitution only protects procedural due process rights that are included in the text, like the right to a speedy trial by a jury of one’s peers. They argue that rights to privacy or to have an abortion aren’t enumerated in the Constitution; therefore, they shouldn’t enjoy constitutional protection.
Even though many Americans thought Roe was a settled constitutional right because it had nearly five decades of legal precedence in place, the court majority argued it was justified in overturning Roe because it was wrongly decided in the first place based on substantive due process.
From a legal standpoint, that Dobbs decision doesn’t necessarily mean there can never be a constitutional right to an abortion, according to April Wimberg, a Louisville attorney and member of The Federalist Society. She says it just means pro-choice advocates need a to find a different argument that would satisfy Thomas and other court conservatives.
“The way I read it is that if you really care about these laws, find something else to hang your hat on because I [Thomas] don’t believe in substantive due process,” says Wimberg.
If the court adheres to this strict, constitutional approach in other cases going forward, Marcosson says many rights that Americans currently enjoy like same-sex marriage could be revoked by court conservatives.
“If you apply that same logic, then they should be at risk,” he says. “If we’re not going to apply that same logic, then this point is just politics. It’s just the court reaching a result and doing it because they don’t like abortion.”
In his opinion, Justice Samuel Alito said the decision in Dobbs shouldn’t be seen as a path to striking down Obergefell, Lawrence, or Griswold because those cases must be carefully reviewed through their own lens of legal and historical precent.
“The problem is Alito is basically saying the Supreme Court is equipped to also be the supreme historians, and they just aren’t,” says Scott White, former Kentucky Deputy Attorney General and Lexington lawyer.
Salamanca concedes that using a historical test is determine what rights should or shouldn’t be considered constitutionally protected is tricky.
“History is complicated, and it’s possible to get it wrong,” says Salamanca.
But he adds that a historical test is probably preferable to judges using some sort of abstract philosophical yardstick to considering the law.
A New Approach to the Law
Although the Dobbs decision captured most of the attention at the end of the court’s term in late June, the justices decided other cases that reinforce the conservative tilt of the current membership. The court struck down a concealed-carry gun law in New York, said a Washington State high school football coach had a right to pray with his players after games, and ruled that Maine cannot withhold taxpayer-funded tuition assistance to families that want to send their children to religious schools. Justices also restricted the federal Environmental Protection Agency’s ability to regulate greenhouse gases.
Court critics say these decisions prove that the conservative justices are abandoning institutional norms and moving state and federal policies to the right.
“This is a Federalist Society wish list,” says White. “The Federalist Society is totally allied with the Republican Party and so this notion that the court is apolitical is just beyond, in my view, a denial of reality.”
“I think the court has acted as a political branch and that shouldn’t surprise us,” adds Marcosson. “The court is political and I don’t think it ever hasn’t been,”
Others argue that these decisions aren’t as extreme or political as they may appear. Salamanca says the EPA ruling didn’t say the federal government can’t address air pollution, but simply that Congress must grant more specific regulatory authority to the agency to do it. On abortion, he says the majority didn’t outlaw the procedure, but said it was a matter for each state to decide.
“I think that a person could look at what the court’s done and is in the process of trying to do in a more charitable light… and that is not that it’s trying to dictate conclusions, it’s trying to simply insist on the process,” says Salamanca “We need to give the Supreme Court some credit for taking the text of the constitution seriously.”
But states may not have complete flexibility on abortion, according to Marcosson. He says some anti-abortion state lawmakers are already considering ways to restrict people from traveling to states where abortion is legal to get the procedure.
Given their large majority, the conservative faction of the court has the votes to take up more cases on issues they care about, such as same-sex marriage or federal regulatory authority. Even so, Wimberg contends the court majority is more interested in interpreting law than making law. She argues the court isn’t as political as elected officials are.
“I don’t know if it’s the politics [or] is it the approach,” says Wimberg. “I think that this court just approaches the law different.”
In the 2022-2023 term that starts in October, the Supreme Court is scheduled to hear cases on affirmative action in higher education, religious liberties, the role of state legislatures in setting election policies, and the federal Clean Water Act.
