RECAP: “Dobbs v. Jackson Women’s Health Organization: The Roar of a Wave that Could Drown the Whole World,” March 8 Law School Lecture with BU Law Prof. James E. Fleming
I heard the sound of a thunder that roared out a warning
I heard the roar of a wave that could drown the whole world
—“A Hard Rain’s A-Gonna Fall,” Bob Dylan
It was a legal version of Bob Dylan’s prophetic message that Boston University Honorable Paul J. Liacos Professor of Law James E. Fleming heard in Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization (2022): the long foreshadowed second death—the drowning—of substantive due process, this time threatening to undo the protections for personal autonomy and bodily integrity established in Roe v. Wade (1973), upheld in Planned Parenthood v. Casey (1992), and relevant to so many other landmark Supreme Court cases of the second half of the 20th century.
Understanding the threat at hand, Prof. Fleming continued, first requires understanding the legal reasoning on which these decisions were founded and in which opposition to them is rooted. The clause in question from the 14th Amendment reads: “…nor shall any State deprive any person of life, liberty, or property, without due process of law.” Those who oppose subsuming the right to have an abortion or the right to marry whomever one chooses under the 14th Amendment’s protection of life and liberty argue that doing so is the subjective work of rogue justices who boundlessly read their own moral predilections into the Constitution. Others, conversely, see it as a natural building out of an ordinary, analogical method of common law constitutional interpretation; the right to privacy, they hold, exists on a rational continuum of ordered liberty that organically confirms the ability to pursue one’s way of life without government compulsion.
As Prof. Fleming explained, the Glucksberg / Obergefell binary provides a convenient shorthand for understanding this contest. For the strictest adherent to the “Glucksberg Test,” which interprets legal tradition in terms of concrete historical practice, only those civil liberties that existed in 1868 are protected via the 14th Amendment (although Justice Alito, Prof. Fleming pointed out, took a bit of license with the originalism underlying this judicial construction in his Dobbs opinion by using January 21, 1973, the day before the decision in Roe was handed down, as the historical cutoff for what extant rights fall safely within the 14th Amendment’s purview). Running counter to this line of thought are living constitutionalists who treat tradition as rooted in aspiration and who argue that we must break from historical practice when it undermines the abstract principles enshrined, for example, in the Constitution’s Preamble. Hence, the Obergefell Court’s ruling that the Due Process Clause extended to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity.” But if Obergefell overruled the “Glucksberg Test” in emphasizing how its historical stringency was deeply inconsistent with prior rulings—e.g., Loving v. Virginia (1967) and Lawrence v. Texas (2003)—Dobbs resurrected it and, with it, the aforementioned rumblings regarding the second death of substantive due process. If one looked only to Justice Alito’s majority opinion—which framed Dobbs as overruling only Roe and Casey—one might think these rumblings at least somewhat overblown. Justice Thomas’ concurrence, however, suggests they are anything but overblown, as he opens the door to the possibility that Dobbs invalidates all substantive due process decisions related to personal autonomy and bodily integrity, naming the precedents set in Obergefell, Lawrence, and Griswold v. Connecticut (1965) as specifically imperiled. The prospect of striking a sensible middle course between intractable historicization and unbounded choice—between Scylla and Charybdis—has begun to seem out of reach.
Prof. Fleming wrapped up his March 8 lecture at the MU Law School by first offering a pep talk for dismayed liberals, laying out concrete steps for stemming the prevailing tide, beginning with a call to stop harboring hope that the Supreme Court might all of a sudden change its track. Once that hope is abandoned, it might become clearer, he suggested, that legislatures can be used to codify existing precedents. To this he added that embracing the virtues of federalism and working within the confines of state houses and state courts to push back against federal actions has been successful before—for liberals and conservatives alike—and might prove so again. As an example, he noted that, by the time Obergefell v. Hodges reached the Supreme Court, 37 states had already protected same sex marriage (and done so by assiduously avoiding federal courts), making the decision itself one of consolidation. And if the federal court system can’t be avoided, he argued that minimalist, second-best litigation strategies might appeal to conservative judges closer to the centerline, thus chipping away at rulings like Dobbs in such a way that might slowly transform constitutional culture. As for conservatives, Prof. Fleming closed his lecture by urging caution: Be careful what you wish for, as reinstating a Constitution in Exile and dismantling the federal administrative state might cast the same pall of infamy on the current Court that was cast upon the Lochner Court, as it’s so often true that, in spite of what they say, people expect more, not less, of government.