The Rest of the Rest of Dobbs

A Very Late Dashed-Off Daily Dobbs upDate

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

Days ago, I posted some initial reactions to “The Rest of Dobbs.” It was my sincere intention to post the rest the following day, but I’ve simply been slammed at my day job. I apologize for the delay.

Today, finally, we talk about the Thomas concurrence, and then, at last, that long, juicy dissent.

Thomas Steals the Headlines

I was tempted to call this section The Thomas Concurrence™, but I already used that joke for The Kavanaugh Concurrence™ in the last installment, and it wouldn’t be accurate anyway. There is no Thomas Concurrence™.

There are three.

Justice Clarence Thomas has three standard concurring opinions, which he files over and over (and over) again:

CONCURRENCE NUMBER ONE: “The majority’s decision in this case depends on Precedent X. I think Precedent X is totally wrong possibly open to question in future cases. However, since the issue was not raised by either party, I agree that Precedent X sufficiently answers this question and concur with the Court’s outcome on that basis.”

See, for example, Thomas’s concurrence in the abortion case Gonzales v. Carhart (2007) (specifically where he mentions leaving the Commerce Clause for another day) and his concurrence in Troxel v. Granville (2000) (leaving substantive due process for another day). Speaking of substantive due process…

CONCURRENCE NUMBER TWO: “God dammit, the Court’s gone and applied substantive due process again, and they don’t even have to, because they could reach the exact same outcome by doing the proper originalist thing: overturn The Slaughter-House Cases, treat the due process clause as procedural, and incorporate the Bill of Rights through the Privileges & Immunities Clause instead. We reached the right outcome but it’s so dumb that we’re still doing it through substantive due process.”

Everyone knows that the Bill of Rights—which used to only apply to the federal government—now applies to all governments, even state and local governments. (This is called “incorporation” of the Bill of Rights.) The Constitution says “Congress” can’t violate your freedom of speech, but, thanks to incorporation, your City Council can’t, either.

This is because of the 14th Amendment. But which part of the 14th Amendment?

In the late 1800s, the Supreme Court was trying to minimize the 14th Amendment, so they ruled against incorporation in a nonsensical farrago called The Slaughter-House Cases. This blocked incorporation through the most obvious clause, the “Privileges & Immunities” clause. Later on, the Court realized it really did think the 14th Amendment incorporated the Bill of Rights, but, instead of overturning Slaughter-House, they left it in place and just found another (really bizarre) way of incorporating it: through the “due process of law” clause. All incorporation since then has been done through this “substantive due process” logic, and it’s all frankly quite silly. Thomas certainly thinks so: he keeps writing about it!

See, for the most magisterial example of this concurrence, Thomas’s concurrence in McDonald v. Chicago (which is actually well worth reading).

CONCURRENCE NUMBER THREE: “Stare decisis is bad and it should feel bad.”

Stare decisis is the doctrine that the court should follow its own precedents, even if those precedents are questionable. This sacrifices some accuracy in the law for the sake of stability. Though its exact limits are frequently debated, stare decisis is pretty much universally understood today to be a cornerstone of the rule of law.

Justice Thomas’s most contrarian take is that stare decisis is not just a bad idea, but that it is actually unconstitutional, at least when used in cases that interpret the Constitution. If the Supreme Court interprets a statute wrong, Congress can (at least theoretically) pass a law to fix it. If the Supreme Court interprets the Constitution wrong, there’s almost nothing anyone can do, short of amending the Constitution. By upholding that incorrect interpretation later on under stare decisis, the Court (which is sworn to uphold the Constitution) will have, perversely, nullified part of the Constitution.

The now-canonical version of the stare-decisis-is-bad concurrence is Thomas’s concurrence in Gamble v. United States, but he’s been writing versions of this concurrence for his entire career.

I have to confess that I haven’t actually read Gamble, so can’t recommend for or against it. But I will say that Thomas has always been the most clear-eyed member of the Court, free of both cant and constraint. He is, for my money, smarter than Scalia (although Scalia was the better writer). You may come away from a Thomas concurrence saying, “That was dumb. I’m glad he’s the only one who thinks that.” You’ll rarely come away saying, “golly gee, that was a waste of time.” (This essay by someone who team-teaches with Justice Thomas sheds interesting light on the matter.)

Anyway, that’s a whole lot more about Justice Thomas’s overall jurisprudence than you really needed! What’s it have to do with Dobbs?

Thomas’s Dobbs concurrence is #2: Down With Substantive Due Process. (Roe was a substantive due process case.) This concurrence adds nothing to his long record of Down With Substantive Due Process concurrences. No justice joined his opinion, which suggests that his view on this is as marginalized on the Court today as it has been lo these many years.1 By most standards, this is a pretty boring Thomas opinion.

That’s a surprise. As soon as we found out that Alito was writing the majority, it was a given that Thomas would be writing separately. I predicted weeks ago on this blog that Thomas would be writing separately to suggest the correctness of Robert George & John Finnis’s view that fetuses are actually “persons” within the meaning of the 14th Amendment, and that abortion is therefore unconstitutional. I made this prediction partly because of Thomas’s obvious passion to end the oppression of the unborn. (He frequently associates that passion with the struggle to end the oppression of Black people, a topic near and dear to his heart.) But I also just thought it would be weird for Thomas to write such a bog-standard Thomas concurrence in such a momentous case.

Thomas seems to have known better than I. His surprisingly unsurprising concurrence grabbed all the headlines. Thomas’s one-vote, totally uncontrolling concurrence had no legal effect, but the threat to substantive due process rights frequently shared above-the-fold headline space with information about Alito’s controlling majority, and trumped the coverage of both Kavanaugh’s concurrence (which matters a lot because he’s the swing justice) and the joint dissent (which matters more than the Thomas concurrence because 3 justices > 1.) I think this coverage was partly because nobody at CNN knows anything about Thomas’s longstanding jurisprudence, but mostly because Thomas’s concurrence seemed to confirm many of the progressive establishment’s worst fears: the conservatives are coming for gay marriage, contraception, and the right to consensual fornication!

This is because Thomas said that Obergefell, Griswold, and Lawrence were substantive due process cases (true enough) and that they therefore should be overturned, with each of those rights reconsidered in light of the Privileges & Immunities clause instead. Thomas considers the majority opinion’s attempt to draw a firewall between Roe v. Wade and the rest of the substantive due process cases flimsy and unconvincing, and calls for further examination in future cases.

The thing is, Thomas is alone on this. More than alone: one of the reasons for Kavanaugh’s concurrence seems to have been specifically to reject Thomas’s line of thinking extra-hard—after the Alito majority already rejected it thoroughly. The Alito majority is a substantive due process decision to its core, as I have written elsewhere, animated by certain originalist motives but fundamentally accepting the whole body of substantive due process precedents.

Who’s Afraid of Clarence Thomas?

Still, this seems as good a place as any to address the burning question many people are worrying about: should we believe the Court’s protestations of innocence? Will they overturn Obergefell, Griswold, and/or Lawrence, thus threatening people’s same-sex marriages, contraceptive access, and adventures in fornication? After all, the majority opinion says that the only constitutional rights available through the 14th Amendment are those that are “deeply rooted in our nation’s history and traditions.” Rights to same-sex marriage, contraception, and fornication are not deeply rooted in our nation’s history and traditions. In fact, it’s quite the opposite! At least the first and the third were criminalized for much of our national history, and contraception wasn’t exactly smiled upon!

This “deeply rooted” test is legally correct. It is not a standard Justice Alito invented. It dates back to the beginning of substantive due process cases, notably in the Palko and Snyder cases of the 1930s. If you care about precedent—and hoo boy I’ve been hearing from a lot of people who disagreed with the Court this week that they care deeply about precedent—then you have to follow Alito’s “history and traditions” standard. Which means Obergefell, Griswold, and Lawrence need to be evaluated under that standard.

For that reason, I disagree with the majority of conservative commentators rushing to reassure Americans that their contraceptives and their same-sex marriages are perfectly safe. I don’t think that’s true. If Griswold, Obergefell, or Lawrence come before the Court again, then I think each case will fall—and, strictly as a legal matter, each case should. In my view, all three were errors of law. The Constitution is silent on the questions of contraception, marriage definition, and sexual morals. That means those questions can only be answered by the States and their voters, in the democratic arena.2

The best protection for these cases is the fact that nobody particularly wants to challenge them. My family does not use contraception, but I don’t think it would be a good idea to ban it. I would like to see Griswold overturned because I think it was a mistake and mistakes bug me, but I wouldn’t want to see anyone actually take advantage of Griswold being gone! The question of regulating contraception should belong to the voters… and the voters should say, “No thank you! We don’t want to regulate this!” As long as everyone else feels the same way, there will be no challenge, and it can’t be overturned.

Yet we’ve already seen that Obergefell does not enjoy universal acceptance. So we cannot count on popularity as the sole firewall.

The second-best protection for these cases is the fact that the courts don’t seem to want to take them… and the Supreme Court, at least, doesn’t have to! The Supreme Court routinely dodges straightforward legal questions that, politically, it simply doesn’t want to deal with. See, for instance, the decade of important Second Amendment cases Kennedy and Roberts refused to hear, leading right up to Bruen, decided last week. Also, the Court routinely dodges straightforward legal questions for political reasons even after those questions have arrived properly on the Court’s merits docket! See, for instance, Masterpiece Cakeshop v. Colorado, the “Christian cake-baker” case, where the Court rather pointedly ruled on a technicality rather than reaching the central question.

The third-best protection for these cases is the argument that there really is something fundamentally different about the right to an abortion, just as the majority opinion claims. With the rights of same-sex marriage, contraception, and fornication, you can at least argue that there is a broad right of privacy and personal autonomy in the American tradition. Call this the idea that consenting adults can do what they want as long as nobody else gets harmed… which (you could argue) implicitly encompasses all three of those rights (even if we didn’t realize it until decades after the 14th Amendment passed). It’s not a terrific argument, but it’s an argument.

Abortion is not like that, though. As lodestar Sherif Girgis explains, abortion is a case where somebody else gets harmed: the fetus. Whether or not you agree that the fetus is a full person with full constitutional rights, the Supreme Court has repeatedly recognized that society has a strong, sometimes compelling, interest in protecting that life (or “potential life,” as people who don’t know biology sometimes mistakenly put it) from harm.

The Court is at least kind of thinking along the same lines as Girgis. Dobbs rejects the idea that abortion itself is deeply rooted in our nation’s history and tradition, but it tries to section that rejection off from a broader rejection of the right to physical autonomy (although it has to blow some holes in Casey’s idea of bodily autonomy to get there, for example, in section II.C.1). Thomas thinks that sectioning-off is weak. The dissent thinks it’s a joke, even a prevarication. I think it’s better than a joke, but I still find it unconvincing. Griswold was wrong, and a Court that squarely faces that question again must say so.

All of this is a very long and careful way of saying that, while I do not think it’s very likely that the Court will return any of these issues to the democratic process, I do think it is (remotely) possible. It probably needs one more Thomas-style conservative on the Court to have any practical legs, and, even then, it’s a long shot, but it’s possible.

I must then acknowledge that, for some people, even a slim risk poses enormous danger. I am no fan of Mark Joseph Stern, but it is worth considering this from his perspective:Mark Joseph Stern @mjs_DCIf you are insisting that Dobbs does not threaten Obergefell and you have never once had to worry that the government would deem your spouse and children legal strangers, I need you to sit the fuck down and shut the fuck up.June 28th 2022489 Retweets2,880 Likes

If I were personally in a same-sex civil marriage (or considering entering one) in a state where the new definition of marriage remains unpopular with voters,3 I would personally be taking a look at my relocation options five or ten years down the line. I wouldn’t be putting those options into effect, yet.4 But Dobbs has given such people reason to be nervous. I don’t want to gaslight them by saying there’s absolutely no way the Court will ever undo Obergefell. It’s very unlikely, but it’s within the realm of the plausible. (I don’t think contraception users or fornicators have anything comparable to worry about.)

The Joint Dissent

Let’s break this up a little. I think the joint dissent (authored by Kagan, Breyer, and Sotomayor) can be divided neatly into two parts: the honest dissent and the dishonest dissent.

I’m not really sure that I have much to say about either of them, having already said much of it in my prior analysis of Alito’s majority. But let’s take a gander.

The Honest Dissent

The first part of the dissent is, firstly, a straightforward defense of the constitutional right to abortion.

At a deeper level, however, it is a defense of an entire way of doing law that was born in the early 20th Century, thrived through much of it, and now appears to be breathing its dying gasps. That way of doing law is “living constitutionalism.”

Under living constitutionalism, judges are entitled to interpret vague phrases in the law according to the beliefs and values of present-day society. (Under originalist-textualism, judges must interpret vague phrases according to the textual meaning as understood by the generation that wrote the phrase.) The last time I explained this, I used the example of the 8th Amendment, which forbids “cruel and unusual punishment.” Does this mean the same thing today as it meant when it was ratified, or has its meaning evolved as our society’s understanding of cruelty has evolved? If it means the same thing today, then the death penalty is clearly constitutional. If its meaning has evolved, then the death penalty may be unconstitutional.

Living constitutionalism has several problems:

• First, it turns the law from a free and democratic decision made through a definite process into a zombie animated by the “spirit of the age,” shambling forward and transforming itself without the People getting to vote on it.
• Second, it militates strongly against stability in the law, since the actual meanings of the words are constantly shifting as society grows. (It is very ironic to be a supporter of stare decisis when your living constitutional legal theory makes stare decisis impossible by definition.)
• Third, the people who actually decide what “modern values and beliefs” should be applied (and which ones should be ignored) are always unelected judges, and “modern values and beliefs” always (weirdly!) turn out to match up perfectly with the judges’ values and beliefs—which the judges then impose on the whole country, with unprinted “penumbras” in the Constitution as their justification.
• Fourth, the Constitution suggests this evolutionary theory is wrong because the Constitution already provides a mechanism for expressing society’s evolving views and values: Article V, which allows The People to amend the Constitution by overwhelming popular mandate. (Consider: If the death penalty is truly “cruel and unusual” by “modern standards,” why can’t those of us who oppose it get an amendment passed expressly saying so? Because our view is not actually shared by modern society; it’s just elite opinion.)
• Fifth, no one actually seems to really believe in living constitutionalism, as Michael Stokes Paulsen argued in “Is Bill Clinton Unconstitutional?” (showing that living constitutionalists never interpret the requirement that the president be 35 years old according to an evolving standard reflecting modern beliefs and values. The idea that text in the Constitution stands “not so much for what it says, but for the presupposition… which it confirms” is pretty much limited to situations where it can get elite opinion enshrined as constitutional doctrine without the hard work of persuading actual voters. Roe v. Wade, which overturned deeply-rooted state laws in the overwhelming majority of states on flimsy reasoning, is the ur-example of this impulse.

In short (as I have argued pretty well elsewhere), living constitutionalism tends to eventually boil down to a jurisprudence of ipse dixit: the law is whatever five judges think it should be, regardless of what the law actually says, because those five judges said so. Abortion jurisprudence, especially, has been governed by ipse dixit since its inception. (Seriously, you should read the article I just linked.) Originalism ain’t perfect, but it (pragmatically) offers at least some constraints on this freewheeling judicial dictatorship, and it (theoretically) seems to better reflect what laws in a rule-of-law society actually are.

Ah, but here I’ve gone made my case against living constitutionalism instead of letting the dissenters make their case in favor. I apologize. The dissenters are emphatically in favor of interpreting the Constitution according to “new societal understandings and conditions.”

After all, at the time the 14th Amendment was ratified, women were not among its authors nor among the full citizens it generally protected. The dissenters argue that the practice of the time (abortion was widely banned) should be ignored in light of our evolving understanding (reflected in other laws, including our Equal Protection clause jurisprudence) that women are equal citizens. This understanding should then lead us to embrace an interpretation of the 14th Amendment that incorporates modern values, including the value that people (especially women) are free to “make private choices about family matters, child rearing, intimate relationships, and procreation.”

Whence this value? Who voted to put it in the Constitution? That’s the point of living constitutionalism: nobody had to vote on it! It’s just there now. The Equal Rights Amendment would have enshrined a broad version of this rule explicitly in the Constitution. The ERA failed, after a titanic, very public, political battle, in large part because it was written so broadly that opponents feared judges would use it to establish a right to abortion. The American people did not want to do that, so the ERA did not enter our Constitution. The joint dissent views this entire political struggle as a pointless sideshow, because the 14th Amendment already began to include the ERA within itself (including that right to abortion!) as soon as the principles supporting the ERA passed some ineffable threshold of public (or at least elite) support.

Anyway, the dissent argues that this putative right to “private choices about procreation” is essential to establish women’s even more fundamental “right of self-determination.” Pregnancy and parenting carry substantial risks and burdens, including substantial health risks. The dissenters consider contraception and/or adoption, but find both insufficient to deal with those risks. Since mothers have a right to self-determination, and there are no acceptable alternatives, mothers’ right to self-determine must necessarily include a right to abortion.

A “balance” may be struck between the fetus’s rights and the mother’s rights, but no more than that. Unsurprisingly, the dissenters think the balance should be struck roughly where Casey and the Carhart cases struck it: a mother can be discouraged from aborting, but never prevented, at any stage of pregnancy. (Whence this judgment? Based on this opinion and on Casey, it’s what their gut tells them is the right balance. Ipse dixit.) This kind of interest-balancing is, today, more often considered the province of elected legislators—but living constitutionalism did a lot of interest-balancing in its heyday. The dissenters think that was a good thing. What do we have equitable judges for if not to judge equitable balances based on precedent and their own good horse sense?

“That does not mean anything goes,” the dissent insists. However, it provides no evidence for this claim. No limiting principle is offered—because no limiting principle on this method of lawmaking is possible. (I will link, one last time, to my Law & Liberty article about this.)

The dissent thinks Roe and Casey were correctly decided. It thinks this not because Roe and Casey can be justified under the 14th Amendment’s original public meaning, but because they think a stingy view of fetal rights is good public policy. They think their preferred public policy is inextricably tied to principles they have decided are part of the warp and woof of modern American society, and which they therefore read into the 14th Amendment, even though that Amendment is from 1868. The first half of the dissent is a pleasingly forthright defense of this hoary living constitutionalism.

At least, it’s a defense of living constitutionalism as long as progressives are the ones ipseing the dixit. As much as progressives dislike originalism, one has to imagine that, if Sohrab Ahmari finds his way into winning a popular election and explicitly interprets the “free exercise of religion” to exclude all false religions (meaning all religions other than Catholicism), the Court’s progressives would not look so fondly on this principle, even though it is, legally speaking, the same principle.

The Dishonest Dissent

The other half of the dissent is a really aggressive misinterpretation of stare decisis. Having argued that Roe and Casey were correctly decided and should be upheld for that reason alone, the dissenters argue that, even if Roe and Casey were wrong, they should still be upheld under stare decisis.

Defending stare decisis in a particular case is often like defending the Alamo. It’s the last refuge of someone who is on the brink of losing the argument, and puts the defender in the unenviable position of saying, “Even if this precedent is legally wrong, even if this precedent is causing harm to one of the parties to this case, in contravention of the Constitution and the laws of this country, we should still uphold the precedent—and the injustice it causes—because it would be too messy to do the other thing.” Still, the argument can be made. Sometimes, it needs to be. Unlike Clarence Thomas, I think stare decisis is important.

But the version of stare decisis described here in this dissent is simply wrong. They severely distort the historical record to make their case, and cursory examination shows that the rule they propose here for overturning precedent is gravely inconsistent with the Court’s own precedents on overturning precedents!

The dissenters argue, basically, that the Court should overturn precedents only if at least one (ideally more) of the following conditions is met:

1. The precedent has been rendered out of step with (or effectively abrogated by) in contemporary case law in light of intervening developments in the broader doctrine.
2. The basic premise of the precedent has been undermined by fundamental factual changes.
3. The precedent being overruled “occurred very close in time” to the overruling decision, so did not engender substantial reliance and could not be described as having been “embedded” as “part of our national culture.”

The majority opinion points out, indignantly, that this doctrine (if honestly followed) would have meant that (after an initial “very close in time” period when Plessy could have been overruled), Plessy v. Ferguson could not have been overruled until sufficient time had passed for new precedents to undermine it and/or fundamental facts about segregation to change. (It’s not enough for a new court to put a new emphasis on already-known facts; those facts need to have changed this the initial decision.) This view of stare decisis would mean that Plessy could not have been overruled between roughly 1905 and 1940, no matter how egregiously wrong Plessy was. (And it was really wrong.)

The dissent offers a lot of terse replies to this point, hurled rapidly at the wall one after the other to see what sticks:

• The “I know you are but what am I?” defense: the dissent doubts that Plessy could have been overturned on originalist grounds so the fact that it seemingly couldn’t be overturned on stare decisis grounds, either, is no demerit.
• The “it could have been overturned quickly” defense: the dissent notes that, if Plessy had been overruled in the first few years of its existence, without a change in the Court’s personnel, that would have been okay. Of course, that was never going to happen; overturning Plessy required a change in the Court’s personnel, and this was a national moral imperative.
• The “but bad things are bad” defense: the dissent argues that it was okay to get rid of Plessy, even against the stare decisis rules, because Plessy was bad and Roe was good. Plessy hurt people, but Roe/Casey “protected individual rights.” This, of course, is question-begging: if the majority agreed that Roe/Casey were good, no stare decisis defense of them would be necessary. (Also, they were not good! Thomas points out that Roe/Casey killed 63,000,000 humans!)
• The “bare majority” defense: the dissent suggests that unanimous decisions like Brown may overturn precedent (even against “the rules”) while 5-1-3 decisions like Dobbs must not.

A larger difficulty becomes clear in the dissent’s defense of West Coast Hotel v. Parrish. West Coast Hotel, decided in 1937, overturned Lochner v. New York, a 40-year-old substantive due process case that had granted an individual “liberty of contract,” which rendered minimum wage laws and other labor regulations unconstitutional. Next time somebody tells you the Supreme Court has never overruled an individual right, remind them of Lochner! Not only did they overrule an individual right, but it was FDR’s New Deal judges who did it! (They were right to do so. Lochner was wrong like Roe.)

The dissent insists that this was justified by the “factual development” of the Great Depression, “which disproved Adkins’ assumption that a wholly unregulated market could meet basic human needs,” a development which was “common knowledge through the length and breadth of the land” (so the West Coast Court alleged). It was also justified by “legal developments” which had weakened Lochner, including some decisions which had refused to extend it in certain contexts, and certain “statements in those decisions” which were “impossible to reconcile” with precedent.

But, if that’s our low low standard for factual and legal developments, Roe has emphatically gone through the same process! I could lay out the evidence about sonograms, falling abortion rates, changes in how America protects women’s autonomy… but the majority opinion already does a pretty good job of this! Go read it! The dissent dismisses all this as weak tea, but without acknowledging that the evidence used to overturn precedent in some of their favorite cases (including West Coast Hotel) was much weaker tea! As for legal developments, I wrote years ago that Roe was not only undermined several decades ago—it was outright overturned. The decision that overturned Roe? None other than Planned Parenthood v. Casey. This is not a remotely unusual interpretation of Casey. Both pro-lifers and pro-choicers have adopted this view at various times, to certain legal advantage. Casey was itself a drastic legal development in the history of abortion rights—one which drastically narrowed those rights.

This doesn’t even mention the federal Partial-Birth Abortion Ban Act, Gonzales v. Carhart, the multiplicity of state and federal feticide laws, the intense legal backlash in favor of at least limited fetal rights, and the generally growing awareness of the unborn and their interests (which I recently discussed in the context of tax law). If Lochner fell because of “legal developments,” certainly Roe has had enough developments to do the same.

One of the decisions the dissent talks about in glowing terms (and which Breyer actually voted for at the time), Lawrence v. Texas, overturned a major 1980s decision called Bowers v. Hardwick. Lawrence’s stare decisis analysis was barely a couple pages long. (The stare decisis analysis in the Dobbs majority runs for 27 pages.) Scalia made fun of Lawrence in his dissent at the time for violating all the “rules” of stare decisis. Lawrence overruled Bowers because there were insufficient “reliance interests,” because it was not consistent with the values expressed in Casey and Romer v. Evans, because it was not consistent with European practice (neither is our abortion law; ask the German Constitutional Court), and because its reasoning was (in the Court’s view) egregiously wrong. The main reason Bowers fell, though, is because the people who voted for Bowers left the Court and new personnel joined the Court.

Yet we find Lawrence listed in an appendix to the dissent as a case where overruling the precedent was justified “in light of developments in the legal doctrine, as well as changed social understanding of sexuality.”

I mean, come on. Any rule of stare decisis weak enough to allow Lawrence because society liked gay people better after 20 years (which is true enough) is weak enough to allow two or three Dobbses because sonograms humanized fetuses for 50 years. I can’t believe the dissenters believed otherwise. They really did think Roe/Casey were correctly decided, but the stare decisis rule they propose is neither supported by its own precedents, nor by the dissenters’ own actions in other cases. It is a special good-for-this-ride-only rule of stare decisis designed especially and exclusively to preserve abortion rights against the clamor of the voters and the silent screams of the unborn.

That’s It

I’m done. I hope the extra length of this (final?) Dashed-off Daily Dobbs upDate made up for its lateness. Despite the extra prep time, I’m still not doing a good job editing it, so it preserves that dashed-off flavor!

1

This is frustrating to me, because Thomas really sold me in the McDonald concurrence. I used to oppose all incorporation, but Thomas convinced me that Privileges & Immunities incorporation was correct. Make it law!

2

Very possibly my favorite dissent of all time is Potter Stewart’s pithy rebuttal to Griswold. It begins:

Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

Read the whole thing.

3

Really I’d be at least a little nervous in any state where opposition exceeds 30%, which is quite a lot of them—or at least it was in 2017, when I got that poll from.

4

It is worth noting that I am big on making plans for slim but extreme risks. I’m one of the few people I know who has a decent supply of water, dried food, and a weather radio in the basement, in case of nuclear attack. I stocked up on toilet paper for Covid-19 in late February 2020, fully three weeks before the Great Toilet Paper Shortage of March 2020. (Don’t worry: I figured stores would only be closed for a few weeks, so I bought only bought one extra bag. I wasn’t hoarding.)

I also have a list of countries I might consider fleeing to with my family in the event that religious liberty in this country collapses or full-on persecution begins. If Mrs. Clinton had won the 2016 election, I planned to flesh that list out some more by looking into their immigration rules and jobs markets.

In other words, I am not giving out any advice I haven’t taken myself, and I am just a tiny bit paranoid.