By Vanessa Baird
After the Supreme Court鈥檚 decision to overturn Roe, many have focused on whether it might lead to bans on contraception or gay marriage. My research on the politics of judicial rationales indicates that its impact could be much more expansive. My argument is that 顿辞产产蝉鈥 rationale could be used, at least initially to undermine a whole host of liberties, including 鈥渆numerated鈥 liberties, such as speech and religious freedom. This rests on two types of evidence 1) how Supreme Court decisions affects the behavior of a myriad of institutions and political actors, and 2) a legal argument related to the breadth of the uncertainty parameter of a rationale. I conclude with the moral lapse of the underlying logic of the rationale, and explain why Dobbs makes Constitutional Law difficult to teach.
The impact of legal rationales on political action
First, in my book, (and other research , and with Tonja Jacobi and ) I show that political actors (states, groups that sponsor litigation for legal change, businesses, etc.) use the underlying logic of new rationales to get a sense of what the Supreme Court would find acceptable for 鈥渁djacent issues.鈥 They pay attention to what these rationales imply, not just what the Court says about the law in question.
State legislatures 鈥 and lower courts 鈥 read these 鈥渢ea leaves鈥 to determine how much restriction of liberties or rights they think the Court will allow. Pro-liberty groups (like the ACLU) then scour the universe for the best 鈥渢est cases鈥 to use to challenge those laws. Those in jail for similar offenses, particularly people of color and others who cannot afford bail could languish in jail cells for years while the test cases are tried and appealed. They relinquish job opportunities, miss their children growing up 鈥 or a funeral of a parent, likely jeopardizing their physical and mental health.
Four to five years after major important decisions, the Court receives the cases created in response to those prior decisions, after they have been through some set of trials and appeals. It can (but does not have to) adjudicate those conflicts. In the meantime, people abused by state authorities suffer 鈥 for years 鈥 even if the Court eventually sides in their favor. If the Court upholds the liberty in question, the state gets back to work trying out new ways to put people in prison, who then also wait years. If the Court decides in the state鈥檚 favor, then state authorities are further emboldened.
That is how legal change worked, before Dobbs. Groups fought legal squabbles about whether the suffering to those put to death by the state is too much. No, the Court says, because the death penalty is cruel but not 鈥渦nusual.鈥 Religious groups fight for the right to warn public school kindergartners not to lust after their neighbor鈥檚 wife are told to identify different means of turning them into moral adults. Defense attorneys are kept busy challenging evidence collected illegally.
Importantly, appellate courts can view these legal issues with more, or less, suspiciousness depending on what they think the Supreme Court will allow in the future, not necessarily what stands as precedent. Even if these cases are eventually used to push back on state action that limits liberty, ordinary people鈥檚 lives can be ruined if they are caught up in this trial-and-error process. Since most cases are plea bargained, people may admit to a crime that is not permitted to be criminalized.For these reasons, my argument is not that 顿辞产产蝉鈥 rationale limits pure speech protections (it does not). My argument is that state actors could stretch the underlying logic of the rationale to apply to a broader set of legal areas than is currently being imagined by political pundits. Dobbs will likely incentivize cruel creativity among anti-liberty lawmakers. When the law is logically coherent, the space between what might be allowed and what will not be allowed is fits within a relatively narrow band. What had been a narrow stream of legal vulnerability has been transformed into a Grand Canyon.
The impact of uncertainty parameters of legal change
The governing assumption here is that the law is not just what the Court has said. The 鈥渓aw鈥 is what state actors believe the Supreme Court might let them get away with. Why not try? It is not as if we fire legislators for restricting liberties. 顿辞产产蝉鈥 underlying logic implies that the only kind of 鈥渦nenumerated鈥 liberty that deserves protection are liberties that were protected from a strange set of cherry-picked decades: 1825-1952 (notably, the end of this era is two years before Brown.)
Alito (and even progressive legal professionals) will cry foul on my argument that Dobbs could be used to limit pure speech. 鈥淪peech鈥 is clearly enumerated! The 1825-1952 rule cannot apply!鈥 But this neglects the ability for a majority on the Supreme Court to name the liberty it is considering. Mapp was about search and seizure, not 鈥渢he right to possess child pornography.鈥 Bowers was about the 鈥渞ight to engage in sodomy,鈥 a crime Burger calls a 鈥渄eeper malignity鈥 than rape (see 478 U.S. 197). Later, Kennedy called this liberty 鈥減rivacy.鈥 In essence, 鈥渢he right to criticize elected officials鈥 could be characterized as unenumerated.
Precedent, 鈥渦nenumerated鈥 liberties, and some basics of constitutional law
Though Alito promises that 鈥渘othing in this opinion 鈥 cast[s] doubt on precedents that do not concern abortion,鈥 it is not up to him (or the current Supreme Court) how his rationale will be used. Many accepted naively that Bush v. Gore would be, 鈥渓imited to the present circumstances;鈥 yet, . Though there is often a norm that cases must stick to the issues at hand, in an unrelated case, Kavanaugh state legislatures unlimited power to ignore their own state constitution. Though the Supreme Court rejected this legal theory as an absolute, about how much deference they would allow a state supreme court in reviewing increasing restrictiveness of voting rights. Indeed, . In other words, the impact of Bush v. Gore on future elections remains to be seen.
As an aside, though it is not read this way, the Ninth Amendment prohibits using a liberty鈥檚 absence from the enumeration as a reason for disparaging its validity: 鈥淭he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.鈥 The plain meaning tells the Justices (or anyone else doing the construing): it is impermissible to deny a liberty because it is omitted from this 鈥渆numerated list.鈥 A liberty can be denied for other reasons (e.g., it causes thousands of people to die every year in mass shootings). But it may not be denied because the Bill of Rights omits it.
What makes Justices鈥 tendency to misread the Ninth Amendment worse is the use of U.S. history to deny or disparage a liberty. Every eighth grader (whose superintendent allows history to be taught) knows that the 19th Century U.S. was not a place to find liberty protections. Until the 20th Century, the Supreme Court protected virtually no liberties, not even those that were enumerated. As Alito says, 鈥淣one. Zero.鈥
Conservative Justices have been arguing for decades that what is meant by 鈥渓iberty鈥 is that the state must follow certain processes when they to take your property or put you in prison. So, when states jail hospital administrators for refusing to release medical records, or to require women to succumb to a pregnancy test before traveling out of state or put physicians in prison for homicide because a judge does not accept the particular live-saving circumstances in question, the Court should protect their right to (things like) a speedy trial. Indeed, some legal professionals continue to assert that the First Amendment gives individuals no speech or free exercise rights at all (Yoo 2015). So, rather than be complacent that these 鈥渆numerated liberties鈥 are secure, I believe that pro-liberty minded members of the public and academia should heed these arguments as a warning.
As an exercise in logic, I have applied Alito鈥檚 test to its least likely area: the content of 鈥減ure speech,鈥 because some might argue that 鈥渟peech,鈥 as an enumerated liberty, cannot withstand Alito鈥檚 rationale. Let鈥檚 say that someone tweets, in response to Trump鈥檚 reelection in 2024, that the U.S. needs a 鈥渞evolution,鈥 but makes no direct incitement to actual violence. Or maybe someone tweets that Biden is an idiot who should burn in hell. If a state were to prosecute for these statements, here is what a future majority opinion by the Supreme Court could say, using Dobbs as a rationale:
The Constitution makes no mention of the 鈥渞ight to express views that disparage the reputation of those elected in accordance with the Constitution.鈥 The 鈥渃lear and present danger test鈥 that upholds despicable speech if it is not directly imminently dangerous is relatively new in U.S. history and cannot be said to be deeply rooted in our nation鈥檚 history and tradition.
Law throughout U.S. history is filled with bans on speech, from the earliest days until very recently. Less than a decade after the Bill of Rights were ratified, our founders jailed journalists for criticizing them. Though Democratic Republicans abhorred the Alien and Sedition Acts, members of that same party banned anti-slavery speech; it was even illegal for members of Congress to speak against slavery in the halls of their workplace.
Lincoln jailed critics for speaking out against the Civil War. Though the Alien and Sedition Act has fallen into the cracks of history, many provisions have never been declared to be unconstitutional. The U.S. was able to use what remained of that law to jail U.S. citizens of Japanese descent for nothing more than their national origin lawmakers used their discretion then, and they should be able to use that discretion today. The moment free speech was incorporated to the states, the Court allowed the states to prosecute speech that had a 鈥渂ad tendency.鈥 聽
When the U.S. was targeted by communists, Congress reacted by passing the Smith Act, which the Supreme Court used in Dennis to allow the jailing of communists, even with no evidence that they encouraged anyone to engage in violence.
It was not until 1969 that the Supreme Court protected speech regardless of the content. In the end, speech that criticizes established law is not 鈥渄eeply rooted in our nation鈥檚 history鈥 and thus deserves no protection today. The era of judicial supremacy that allows unelected judges to mandate to legislators how to fulfill their elected duties is now safely in our rearview window.
Is the Supreme Court ready to make that argument today? Unlikely. But a conservative litigant can use this kind of logic to try to restrict liberties on the margins. Imagine using the logic from eminent domain to say that protest that affects commerce is no longer allowed. Conservative litigants will argue in their briefs, 鈥渂ut you said you were only going to protect liberties from the 19th Century-Brown, so you have to side with my argument today,鈥 giving conservative Justices the excuse they need to put their political opponents in prison.
In other words, Dobbs could inspire states and cities to pass laws that will enable today鈥檚 states and lower courts to relitigate the entire 20th Century. Will some of those liberties be upheld? Perhaps, but it takes time for the Court to do that and in the meantime, lower court judges are free to allow these legal hypothesis tests. People without access to bail money will languish in prisons waiting for the Court to uphold liberties they thought they had.
The moral lapse of using U.S. history as our moral compass
Here are some other details from our nation鈥檚 history. The Massachusetts 鈥淏ody of Liberties鈥 allowed the (yet was silent on abortion). Many founders argued that some humans were not human; others advocated for non-ownership. Marital rape was a 鈥渓iberty鈥 in all states until 1975 (Russell 1990). Indeed, the disagreements about the meaning of liberty in the 19th Century caused a civil war.
Alito and his colleagues honor the opinions of those who perpetrated (or profited from) what Ban Ki-moon, the Secretary General of the United Nations called Ki-moon warns us that we must 鈥渁cknowledge the great lapse in moral judgment that allowed it to happen.鈥
Alito tells us that women must be forced into parenthood today because U.S. law today must honor the law from the worst decades in U.S. history. The voices of women, people of color, and the poor were excluded in what was allowed to become 鈥渄eeply rooted in our nation鈥檚 history and tradition.鈥 Justices give lip service to slavery as a moral wrong, and democracy as a moral right, and in the same breath tell us not only to honor the men who believed in the opposite, but then stoop to mandating that the law embrace their view of liberty.
I am not arguing that U.S. citizens have nothing to be proud of in our history. Even if Justices were to cite the wisdom of founders such as Frederick Douglas and Sojourner Truth, there is a logical fallacy in the seemingly unthinking and robotic use of history to define what is good and virtuous. 鈥淢ommy, why is X good?鈥 鈥淏ecause Americans believed X was good a long time ago鈥 is not an argument that should convince anyone over the age of six. It should surprise no thinking person that Justices who want the world to look more like 1825-1952 cloak their wishes in the white sheet of historical nostalgia.
In conclusion: the 鈥渏iggery-pokery鈥 of teaching constitutional law after Dobbs
Scalia used the term 鈥渏iggery-pokery鈥 to malign his fellow Justices鈥 logical incoherence. To understand how Dobbs fits in with the rest of constitutional law resulting from Alito鈥檚 rationale, here is what I will have to tell my undergraduates when I teach Constitutional Law.
1. The text of the Ninth Amendment prohibits using the absence of a liberty to cast doubt on its validity, yet this text matters least to those who say the text should matter most.
2. Alito invokes history to defend the absolute power of democratically elected state legislatures to do anything that was allowed before women and people of color could vote. Alito celebrates 1825-1952 as a golden age but ignores 1700-1825 and 1973-2022. Others will be free to select their favorite decades.
3. Our entire 14th Amendment jurisprudence requires that classifications that caused the most egregious harms in the past, are deserving of the greatest protection from today鈥檚 harms, requiring Justices to look at history and do the opposite. But with liberties, courts must allow states to do anything they were allowed to do when the U.S. was committing the worst crimes against humanity.
4. Stare decisis is not required if past decisions were 鈥渆gregiously wrong鈥 because, Alito tells us, unironically, the moral values of Justices should be legally irrelevant.
5. Antiliberty judges can use state legislatures to do the dirty work of violating liberty, but pro-liberty Justices cannot read the Ninth Amendment as prohibiting states from allowing police unlimited power to invade people鈥檚 bedrooms and doctors鈥 offices.
7. Alito says that Roe was problematic because it caused anger and polarization, but in the same breath says that the public鈥檚 opposition to Dobbs is not legally relevant.
Future progressive members of the electorate, legislators, and the Court should refuse to legitimize progressive outcomes with similar appeals to history. If the Democrats eventually succeed in putting Justices on the Court who are not members of the Federalist Society, then Kavanaugh and Barrett will spend the last decades of their life writing impotent dissenting opinions that no serious person reads, following in Thomas鈥 footsteps. Even so, in the short term, the resulting mishmash of incoherent law, conflict across judicial jurisdictions, and the misery that comes to people and their families over the next ten to twenty years will be the legacy of the Roberts Court.聽