Thursday, May 05, 2022

There’s Nothing “Substantive” About Dobbs

I understand the validity of this argument, as far as it goes. 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 Lawrence O’Donnell said the references to a 17th century jurist were so ugly they would have to be withdrawn.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:
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. 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: 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? Aye, as Hamlet observed; there's the rub.

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