The US Supreme Court has produced the sea change in constitutional law that many expected since the hasty confirmation of Justice Amy Coney Barrett in the wake of Justice Ruth Bader Ginsburg’s death. Most immediately, the Supreme Court overturned the constitutional right to choose an abortion pronounced in 1973 in Roe v. Wade. In the longer term, the court’s decisions transform how we should expect it to understand constitutional rights going forward. And the news is not good.
In both its decision striking down New York State’s gun licensing regime as a violation of the Second Amendment right to bear arms and in Dobbs v. Jackson Women’s Health Organization, the abortion case overturning Roe, the high court tightly tethered the availability of a right to a historical analysis.
In the Second Amendment case, the majority, led by Justice Clarence Thomas, rejected the method of applying rights that was used for most of the 20th century and by all the lower courts implementing the Second Amendment right. Under this earlier method, the Supreme Court would have looked to the importance of the governmental interest behind a law restricting firearms and whether or not the means the government was using to regulate were sufficiently narrow.
Going forward, the majority said, the court will instead consider whether the law being challenged is the same as or analogous to historical restrictions. In Justice Thomas’s words, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Similarly, in Dobbs, Justice Samuel Alito, writing for the majority, looked to particular historical practices to determine whether the right to an abortion was part of the Fourteenth Amendment’s right not to be deprived of liberty without due process of law. His opinion adduced 19th-century state statutes restricting abortion as evidence that the right to obtain an abortion was not part of a constitutionally protected liberty interest.
The Right to Same-Sex Marriage
On that logic, however, many other liberty rights under the Fourteenth Amendment would be eliminated. There were no 19th-century state laws supporting same-sex marriage, another right deemed part of the Fourteenth Amendment’s protection of liberty. And there were certainly restrictions against sodomy, which the Supreme Court has also held was a liberty states could not restrict.
All of these rights were established on the basis of a much broader conception of liberty, one capable of evolution rather than embalmed in the amber of history. For example, the case upholding a constitutional right to same-sex marriage examined the value historically placed upon marriage but emphasized that history was the beginning, not the end of the analysis.
Although marriage had always been valued, groups of people were historically excluded from the privilege because of societal discrimination. In affirming a constitutional protection for same-sex marriage, the Supreme Court recognized that history may not tell us everything about what rights should be constitutionally enshrined.
Those historically subject to prejudice and deprived of political and social power will not have enjoyed the same rights as those who were full members of the polity. As Justice Anthony Kennedy wrote, “The nature of injustice is that we may not always see it in our own times.”
The Dobbs court has opted to forget this lesson, or at least to ignore it. The Nineteenth Amendment, enshrining the right to vote regardless of sex, was ratified only in 1920, decades after the Fourteenth Amendment. The statutes that Justice Alito relies on in Dobbs and includes in a lengthy appendix were all passed before women enjoyed a constitutional right to vote.
The lack of representation of women in the political process on the state or federal level in the 19th century as well as the subsequent ratification of the Nineteenth Amendment should weigh heavily into any analysis of how history bears upon a right to abortion. But apparently a majority of the Supreme Court does not agree.
Adhering narrowly to the historical application of constitutional rights leads to an entrenchment of discrimination against historically disadvantaged groups. It will also result in an ad hoc vision of the scope of constitutional rights, dependent on the vagaries of particular past practices.
This is evident from Justice Kavanaugh’s concurrence in both the abortion and Second Amendment cases. In each instance, he wrote separately to identify particular situations to which the majority opinion would not apply.
With respect to gun regulation, he explained that certain types of licensing schemes were constitutionally permissible in his view. With regard to abortion restrictions, he opined those states could not constitutionally prohibit women from traveling interstate to obtain an abortion.
Justice Kavanaugh’s guidance will be helpful to lower courts since his vote would presumably be necessary in further litigation at the Supreme Court derived from Dobbs. But his concurrences also reach out to express his view on constitutional questions not before the court, a form of judicial activism.
Without a method for determining the existence or scope of a right outside of a resort to the history books, the Supreme Court’s new approach augurs an era rife with discrimination and replete with confusion. Not only the constitutional right to obtain an abortion has fallen this week.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Bernadette Meyler is Carl and Sheila Spaeth Professor of Law and Associate Dean for Research at Stanford Law School. She researches and teaches in the areas of constitutional law and interpretation, legal history, and law and literature. She was a 2020 Guggenheim Fellow in Constitutional Studies.