I am much closer to the view of SCOTUS justices as neutral arbiters. At least, this should be their job, and how we evaluate them. I happen to think that todays court is best in my lifetime according to this standard. Roe clearly was wrongly decided, eg, and Obergefell is pretty questionable as well. I say this as someone whose policy views are pro choice and pro gay marriage. I don’t think SCOTUS should pay any attention to the policy implications of its decisions. It should just interpret the law. (I know, a radical suggestion.)

That said, this leads me to agree wholeheartedly with Jeff that Congress should pass a law protecting same sex marriage. EXACTLY. Congress should actually do it’s job. Since the Warren Court started engaging in judicial policing making, from criminal procedure to protection of contraceptives/abortion/etc., Congress has seemed content allowing these big decisions to be made by the one non-democratic branch of government.

Congress also has been happy to allow decisions to be made by the ever-changing executive. While I agree with Jeff that the Court’s “major questions” reasoning in the recent EPA case was questionable, I would have reached the same result via non delegation --I just don’t think Congress can actually delegate massive regulatory powers to executive without being really explicit. The current SCOTUS may soon start chipping away at this deference to administrative state, which would also be a welcome move.

In both cases, Congress needs to legislate. It’s where policy gets made according to our constitutional system, full stop. People are understandably frustrated that Congress seems incapable of acting, and so “means justify ends” rationales are provided for circumventing our constitutional order and doing policy via litigation and executive regulation. I hope in a generation we can get back to Congress doing its job. Like protecting gay marriage. And passing a carbon tax. Get these important policy issues out in the open, subject to the democratic process. If we don’t like the results, we will have ourselves to blame...which is of course why we don’t seem to want to go this route.

Expand full comment

Jeff makes some very good and even embarrassing arguments. However the elephant in the room is the peculiar situation that conservative justices are in. Most of them have these 2 fundamental belief systems. (1) An unborn child is (after some yet unknown point) a human, AKA an American with the right to life. (2) The constitution (As it was understood when voted on, which is all that matters) directs powers to the states for almost all laws and regulations.

If you take these 2 facts? into consideration as you re-read Jeffs essay, it is easy to see how each justice is trying to balance what they see as their primary job with the discretion needed not to cause unnecessary damage in the balancing act known as being a conservative justice. It is far easier to be a liberal justice. Just vote for the outcome you want and ignore the actual words of the law or constitution that was voted on. But as Scalia said, that may be a great political system, but that is not democracy.

Expand full comment

I just want to say I appreciate the consistent high quality content here. There's no half-assed articles on this Stack that were written in 20 minutes. Every single piece is worth reading.

Expand full comment

This point (which you've made well) is not lost on us conservatives -- even those who agree that Obergefell etc. should stand. It's so clearly the weakest point in Alito's argument that it might as well be flashing red. But if it is a lie, it's the kind that judges almost have to tell sometimes.

Uprooting the whole rotten tree of substantive due process would be a huge, disruptive undertaking. Justice Thomas has the appetite for it -- and I actually would too, because I'm a mathematician and that's how we think. But it's emphatically NOT how the law thinks as a rule. This is a world so not governed by Euclidean rigor that the prime directive is "check what the last guy did and do that, unless it's really important". The law lives in reality and has to compromise with it all the time. So it didn't surprise me at all that the other conservative justices chose not to follow intellectual consistency straight through several more of the Court's biggest cases -- or rather, chose to signal that they wouldn't if given the chance.

I disagree about what Roberts would do in an Obergefell revisit, though. In fact, I disagree so hard I nearly laughed out loud. THIS guy? His dedication to the Court's reputation is so absolute that he chose not to join the overturning-Roe part of the Dobbs decision. He wouldn't DREAM of touching a decision which is more popular and which, to a member of the conservative legal movement, is infinitely less important than Roe. Yeah, he dissented at the time, but he lost -- now it's a fait accompli, and that makes it sacred to him.

(Funny how both left and right assume Roberts will do whatever we hate most. I'd feel bad for him if he hadn't completely brought it on himself.)

Expand full comment

I am not a lawyer. But it seems to me that reversing Obergefell should (probably) not result in invalidation of already-concluded same-sex marriages. Obergefell prevented states from not licensing those marriages; a reversal would allow states to adopt those prohibitions again. But states would (probably) not be able to make the prohibitions retroactive due to the ex post facto clause. Marriages that were legally valid when conducted and licensed would remain binding.

Expand full comment

Hey Jeff. I disagree with a lot of this and agree with a lot.

I do believe that the conservative Justices are principled and applying a consistent, logical judicial philosophy, that the same due process analysis that was applied in Dobbs also applies to Obergefell and the other "substantive due process" decisions and that they are being truthful when they distinguish the cases.

The distinction comes in part from the application of the doctrine of stare decisis to the cases. Even if one believes that the decision is egregiously wrong, other factors enter into the analysis of whether it should be overturned. Two factors commonly considered are whether people have ordered their lives around the results of the decision and whether the result has become commonly accepted. In Dobbs, the conclusion was that neither of those factors applied. The former depends in large part on how broadly one interprets the phrase "ordering their lives" but the latter clearly doesn't apply. If anything, the result of Roe is less commonly accepted than it was in 1973.

However, people clearly have ordered their lives around the results of Obergefell and Loving (by getting married) and both same sex and interracial marriage are widely accepted, far more so than they were at the time of the decisions. Contraception certainly is commonly accepted. Sodomy? I'm not aware of any polling on the subject so maybe that would be at risk? I'm confident (as much as one could be) that Roberts, Kavanaugh, Barrett, Gorsuch and Alito (in that order of confidence) would apply stare decisis in that way. Thomas, nope. As you noted, he's consistent. He has stated unequivocally that he believes the only factor in stare decisis is whether the decision was correct and I have little doubt he would overturn all of that precedent, even the one that protects his own marriage (which doesn't mean that it isn't protected, just not under the due process clause).

If you want a great discussion of why substantive due process is wrong, I suggest that you listen to one of two podcasts in which Akhil Amar, a liberal, pro choice law professor at Yale, is the guest. The first is his appearance on Common Sense with Bari Weiss specifically on Dobbs, and the second is his recent appearance on Advisory Opinions in which he discusses originalism and legal philosophy more generally.

Expand full comment

I've always had a certain respect for Justice Thomas's consistency about substantive due process. It's a tortured interpretation of a clause that is very clear otherwise. And it only exists as a doctrine because the privileges and immunities clause got effectively deleted by the Slaughterhouse cases.

And all of these things should be covered quite simply and easily under the ninth amendment's other rights "retained by the people."

The real problem is that the Constitution was originally written to define and limit only the federal government, and to establish the specific and limited powers it has. It's a different argument about the ways those "limited powers" have been abused and expanded. But those same limits were not originally set on the states.

Then comes the 14th amendment, with the express goal of making sure states cannot trample the rights of citizens. And the only real way to interpret that is essentially to say that "no state can abridge a right that the federal government is not allowed to limit."

So the obvious ones are the enumerated rights in the first eight amendments. And the ninth explicitly leaves the door open for all sorts of rights to be claimed.

But there's an inherent conflict, because states have always been regarded as having powers that the federal does not. This is expressly stated in the tenth amendment.

So if the ninth suggests a potentially unlimited catalog of unenumerated rights that the Constitution binds the federal government to respect and protect, how can that be squared with states having greater powers, but also being required to observe those same rights?

I think that this structural contradiction is where the real problem is. The so-called "conservative" justices over the past few decades are often more accurately described as some flavor of "originalists."

As opposed to adherents of the "living Constitution" theory. Originalists are attempting to tackle the contradiction head-on and selectively overturn precedents that depend on controversial and questionable interpretations of the Constitution and its amendments.

I don't mean to suggest that these justices are free of ideological bias. But the fact is that Roe was a weak ruling from the beginning.

While I think that a federal law to protect same sex marriage (or abortion, for that matter), would be a good thing, the problem will be that laws can be changed. And presidential administrations have unfortunately been allowed to selectively enforce or ignore various laws based on their party's policy preferences.

I've always felt that the best way to establish a "constitutional right" that cannot be questioned is simple: do another amendment. Just don't mention the militia in it, or you'll be arguing about it forever.

Expand full comment

Why is the govt in the marriage business?

Expand full comment

I recommend Yale law professor Akhil Amar podcast where he has explained on several episodes why the Court’s reasoning in Roe does not necessarily threaten those other precedents. In short: (1) equal protection, as Jeff (sneakily) acknowledges by footnote, could be used to better justify several of these cases. (Eg, Justice O Connor’s concurring opinion in Lawrence v Texas would have not overruled Bowers and instead invalidated the TX law based on equal protection...a much more persuasive analysis than Kennedys IMO); 2) Roe is unique, on either an “unenumerated rights” or “privileges or immunities” analysis, in that there was never any clear majority support among states for a right to an abortion, either in 1791, 1868, or 1973 (compare Griswold, where the CT law against contraception was totally unique--leading even the dissenting opinion to call it an “asinine law”.); and (3) on more pragmatic grounds, things like interracial marriage and same-sex marriage have gained more popular support over time, while the divisiveness of the abortion issue has not faltered.

FWIW, I still think the most consistent position is Justice Thomas’--that many of those other precedents are equally mistaken because substantive due process is made up. But there are reasonable (originalist) grounds for upholding these other cases while striking down Roe.

Expand full comment

Why aren't abortion (fetus is a human with full rights at fertilization) and gay marriage (Native Americans had a form of gay marriage and Biblical figures had multiple wives) treated as religious matters? Freedom of religion has to be worth something to even today's conservatives.

Expand full comment

If you follow the logic explained by the conservative Justices (or should I just call them the Hacks), then none of the rights that weren't already considered protected when the 14th amendment was ratified, in 1868, can be viewed as protected by that amendment.

Of course that obliterates the right to same sex marriage and sex, which were not well regarded in the 1860s. It must similarly wipe out the right to hormonal contraception (Griswald), since reliable contraception didn't even exist then.

I call the conservative Justices "Hacks" because their whole program is based on a prima facie absurd position: that this world is not significantly different from the world of 1868. If you follow this originalist approach, you find yourself debating what Thomas Jefferson would think about police forcing you to unlock your iPhone with your fingerprint, and other scenarios that would be more at home in an SNL skit than in the text of a Supreme Court decision.

Dobbs is a particularly stupid decision. At a time when we can use fMRI machines to determine that there is no real thought processes in a fetus before about 3-4 months, we're instead treated to Alito's rambling thoughts about some cherry picked 13th century statements concerning "quickening" in pregnancy.

And by refusing to draw any line restricting what state legislatures can do to prevent 'abortion', we're now seeing laws in some states that will criminalize treating an ectopic pregnancy, or completing a miscarriage until a woman is so close to death that a *lawyer* says it's OK to treat her. One thing we can be sure of is that if faced with being arrested on one hand, and letting someone die on the other, almost all doctors will choose self-preservation over treating someone.

The Supreme Court used to define some rights as so fundamental that it, and we, needed to prevent legislatures, both US and state, from infringing them. The current Court still agrees on that, but believes that for some reason, we have to make those judgements based on the world as it existed in 1868. They're doing that not for any sane reason, but because they prefer what they believe the world was like in 1868 to that of today.

Expand full comment

As much as I appreciate being able to subscribe to your podcast for free -- and it is probably my favorite podcast, which I look forward to each week -- the advent of the intrusive and grating ads (Google? Reddit? really?) has me wishing for a paid subscription that would make the ads go away. Perhaps this is what you are angling towards, but I see no indication that tossing money your way will get me an ad-free podcast. Sorry to have my comment be a grumble, but I am willing to pay $$ to not to have to listen to the ads. Your ploy is working. Just follow through with the ad-free version. Thank you, Jeff. You are an incisive and funny guy.

Expand full comment

Aaaand you reserved the Really Big Legal Issue for footnote 3. The difference - and the primary reason why the Court conservatives will have "cover" NOT to overturn Obergefell is because of equal protection. Which is really what Roe SHOULD have been decided on in the first place, and what made it so susceptible to being overturned. The Due Process clause IS abused, and IS an unholy place where any judge - progressive or conservative - could invent various "rights" that cannot be curtailed. Hell, conservatives loved the Due Process clause when it was used to strike down countless labor-protection acts, and thwart nearly all of the New Deal laws.

As a progressive person with a uterus who has always had serious misgivings about the reasoning of Roe (not unlike Justice Ginsburg, actually, who called out its piss-poor reliance on substantive Due Process as well), the entire legal foundation for reproductive rights has ALWAYS been horribly flawed. That's not to say this this court or any court will fix it, and it sucks to clear away a bad precedent without substituting it with a better one. But Equal Protection would do that, as it has with same-sex marriage and trans rights.

Expand full comment

I do think Congress ought to pass a law... But I also would note that Kavanaugh specifically said, using italics not caps, that Obergefell is NOT under any threat. So he's a no. Roberts was a no to gay marriage the first time around, but for the reason mentioned in your 2nd paragraph - retaining credibility and public approval - he'd most likely oppose overruling it. Just like he was against overruling Roe even though he didn't really agree with it. And Gorsuch had that surprising gay and transgender rights ruling. So I'd agree it's safe but there should be a Congressional vote because you never know, and it's very good politics for Dems.

Expand full comment

I think if such a case somehow would navigate its way back, the count is less about whether enough conservatives would vote to overturn Obergefell and more whether enough would vote to grant cert. If support keeps going up like it has it's possible for three or more to simply choose not to take the case rather than force themselves to overturn it or change their logic.

That's one of the assumptions about Roberts in particular.

Expand full comment

> It’s good to know that if I ever engage in human sacrifice like the Aztecs, or child abandonment like the Carthaginians, John Roberts will have my back.

Just for the record, the Carthaginians are known for their practice of child sacrifice, not child abandonment.

Expand full comment