There’s Nothing “Substantive” About Dobbs

I am seeing people thinking Alito talking about unenumerated rights having to be "deeply rooted in our nation's traditions" to be some sort of dogwhistle to the right and an invitation for the Court to invalidate other rights

It's not. It's substantive due process boilerplate 1/

— Dilan Esper (@dilanesper) May 3, 2022

I understand the validity of this argument, as far as it goes.

I appreciate the optimism of thinking anyone is ready to listen to this.

— FindACrimeHat (@Popehat) May 5, 2022

The problem is, at least in this Twitter thread, it doesn’t go very far. Substantive due process may be the legal doctrine associated with a valid and thoughtful legal analysis, but that’s not what this leaked opinion was. This was a screaming rant barely disguised as a Supreme Court opinion. Lawrence O’Donnell said the references to a 17th century jurist were so ugly they would have to be withdrawn. Like arguing there is actually a substantive due process argument here, that rescission would just be putting lipstick on a pig.

And don’t think the politicians who are also lawyers aren’t hearing the dog whistle:

Abbott said Wednesday that Texas would consider challenging a 1982 Supreme Court decision requiring states to offer free public education to all children, including those of undocumented immigrants. https://t.co/mkp3oMbw4g

— Austin Statesman (@statesman) May 5, 2022

Those cases will be an "invitation for the Court to invalidate other rights."  Frankly, once they have started, what's to stop them?

Curious historical note: the case Abbott is referring to is one out of Texas (Plyer v. Doe.  John Plyler was the Superintendent of Schools for Tyler ISD at the time of the suit.  He was also the Superintendent when I was in school at Tyler ISD.  I knew his son.  Not at all his fault the school district was sued.  Policy is set by the school board; or, in that case, state law.). Roe came out of Texas, too (you're welcom). Will the Court overrule Plyler? Eh, probably not. But it won’t be because it’s “deeply rooted” in our national traditions.  The Court is wiping out Roe because 5 Justices hate it. But they are also opening the floodgates. The naked politics of Dobbs is going to encourage the naked politics of more legal challenges, especially this year (Paxton and Abbott are up for re-election). Substantive due process doesn’t have shit to do with it.

A new definition of chutzpah:

Invoking *stare decisis* as the reason why the Dobbs draft’s hostility to unenumerated rights won’t be extended to rulings like Griswold and Obergefell.

— Steve Vladeck (@steve_vladeck) May 5, 2022

Replace "stare decisis" with "substantive due process," and how is that analysis substantively (!) altered?

And no, the states won't go further than Dobbs allows:

It’s not a prediction, they’re literally trying to ban common contraceptives *right now* pic.twitter.com/yqnWZlUkP4

— Brian Tashman (@briantashman) May 5, 2022

Yeah, that runs up against Griswold; but then, it's just an excuse to challenge Griswold, right? Does anybody seriously think where wouldn't be five votes to overrule Griswold, too? Especially since it first established the "right to privacy" that supported Roe?

The @WSJ says the quiet part out loud:

Even though Dobbs's rationale would extend to Griswold & Obergefell, those cases are "durable precedents with broad public acceptance," and *that's* why #SCOTUS won't overrule them:https://t.co/7oWsHGTPtK

It's politics, all the way down. https://t.co/4GboaSXHaw

— Steve Vladeck (@steve_vladeck) May 5, 2022

Aye, as Hamlet observed; there's the rub.

I like and respect a number of conservative legal thinkers trying to reassure us that this won’t go past Roe. But I sense they’re talking about the legal movement as they wish it were, not the legal movement as it is, the one that embraced John Eastman.

— FindACrimeHat (@Popehat) May 5, 2022