Is there a right to privacy in the Constitution?

The most important words in the 14th Amendment of 1868 – maybe in the entire Constitution – say no state shall “deprive any person of life, liberty, or property, without due process of law, nor deny any person…the equal protection of the laws.”

These promises of liberty, due process and equality eventually remade the country, remade the Constitution and by the 1960s, protected the privacy, individual dignity and personal autonomy of every person.

The 14th Amendment was written in the blood of the 750,000 Americans who died in the Civil War. And it took 150 years of political movements to breathe life into the words – the civil rights movement, the women’s rights movement and the gender equality movement.

Those few words protect interracial marriage, same-sex marriage, private same-sex sexual relations, a woman’s access to birth control, the right of a prisoner to marry, a family’s decision to bring relatives into their home, a family’s decision to send a child to a parochial school, the right of a public school teacher to teach an unpopular subject such as German and a person’s right not to be forcibly sterilized.

In addition, the Supreme Court has interpreted the liberty protected by due process to incorporate nearly all of the freedoms of the Bill of Rights – the other great wellspring of freedom in the Constitution. Before the 14th amendment, the Bill of Rights only applied to the federal government, not the states. So, states could willy-nilly violate rights named in the Bill of Rights. And they did.

In short, much of the freedom Americans take for granted rests on liberty protected by due process. The abortion right rested on these words, too, until the Supreme Court changed its mind earlier this year.

It took a century of Supreme Court decisions to bring these words alive from decisions about the family, to decisions about women’s rights, to decisions about contraception and reproductive freedom to decisions about marriage. 

There is a legal term for the liberty protected by due process. Most people haven’t heard it and it is somewhat confusing. It’s called “substantive due process.” What that means is that due process doesn’t just assure that government procedures will be fair. It also protects the substance of the right – liberty in this case.

Understanding this history is key to understanding the significance of the Dobbs v. Jackson decision overturning Roe v. Wade. Roe was anchored in the liberty protected by due process. One of the reasons that the Dobbs opinion alarmed some legal experts is that it called into question the legal rationale for this century of decisions expanding privacy and personal freedom.

Historically, conservative originalists on the court, such as Samuel Alito, Clarence Thomas and the late Antonin Scalia, don’t like substantive due process. More liberal justices think it is essential to protecting privacy.

In Dobbs, Alito wrote that, “Substantive due process” can be “treacherous” and lead the court to “usurp” elected officials. 

Alito argued that liberty protected by due process should be limited to those freedoms ‘deeply rooted in this Nation’s history and tradition” and ‘implicit in the concept of ordered liberty.”

That language comes from a 1937 decision, Palko v. Connecticut, where the court explained why double jeopardy was not fundamental enough to be included in rights the states had to recognize. The court subsequently also said the right to a lawyer and trial by jury were not fundamental enough either, although the Warren Court reversed all of those decisions in the 1950s and 1960s.

The truth is that many of the liberty rights protected by the court in the past hundred years are not deeply rooted in the nation’s history. There were no legally protected same-sex marriages before the 21st century. Half the states made interracial marriages and contraception illegal as late as the 1960s. The Comstock Act after the Civil War made contraception illegal because it tempted women to be overly lustful.

In Dobbs, Alito hastened to add that the court was only addressing abortion – not these other substantive due process rights, noting that abortion was different because of the potential for human life.

But Justice Clarence Thomas wrote in a separate concurrence that the court should  look at same-sex marriage and contraception as well. That is one of the reasons that the Congress moved quickly this fall to protect same-sex and interracial marriage.

In addressing what he considers the abuse of substantive due process, Alito said the nation must “guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans enjoy.”

He noted that two of the most infamous Supreme Court decisions in history – Dred Scott v. Sanford in 1857 and Lochner v. New York in 1905 – were substantive due process decisions – and they were disastrous. In Dred Scott, the court said that a slaveholder’s due process right to property was violated by laws against slavery in the territories. And in Lochner, during the Gilded Age around the turn of the 20th century, the court said a state law limiting bakers’ hours violated the liberty of contract protected by due process.

Alito went on to ridicule as too broad the reasoning of the 1992 Casey decision in which two justices appointed by Ronald Reagan and one by George H. W. Bush – Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter – joined liberals in reaffirming the abortion right. Those justices said the abortion right was based on freedom to make “intimate personal choices” “central to personal identity and autonomy. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

The justices in Casey also injected an equality element to their court ruling. A number of the court’s decisions on personal privacy have linked liberty interests and equal protection – the two ends of that important sentence in the 14th amendment. Both liberty and equality are the basis of the Loving v. Virginia decision in 1967 throwing out laws against interracial marriage and the Obergefell v Hodges decision of 2015 recognizing the right to same-sex marriage.

Alito directly dismissed the equality argument from Casey saying it was overtaken by “modern development” that have helped women – laws against pregnancy discrimination, family leave laws, new attitudes toward unmarried mothers, better health care and more provisions for placing infants left at hospitals up for adoption. Feminists were furious that Alito had used progressive women’s rights legislation as a justification for denying the right to an abortion.

Brandeis’ ‘right to be let alone’

The word privacy does not appear in the Constitution, although there are elements of the Bill of Rights that suggest the Framers were concerned about privacy. The First Amendment protects the right of association. The Third Amendment says people can’t be forced to quarter troops in their homes. The Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Fifth Amendment says suspects have the right to remain silent. And the Ninth Amendment protects the rights not enumerated in the others.

Still, the word privacy isn’t used. 

The person who first wrote about a legal privacy right was Louis Brandeis, who published the most famous law review article in history, “The Right to Privacy,” along with his law partner Samuel Warren. (Brandeis, by the way, began his legal career in St. Louis where he was admitted to the bar in 1878 in the Old Courthouse where the Dred Scott case had been argued.) 

Brandeis and Warren were upset by what they thought was the crass way the press, toting portable cameras, covered upper class social events.

Warren, a Boston blue blood, had married Mabel Bayard, the daughter of a senator and friend of President Grover Cleveland’s young wife, Frances Folsom. The press covered the wedding in 1883 in great detail. The Washington Post story was headlined: “A Ceremony in the English Style Attended By the Blue Blood of Delaware and Boston.” It commented that the wedding was one “for which there had been hopes and fears, heart flutterings, and silent longings.”

In the years that followed, the press covered the Warren-Bayard social gatherings in Boston and the visits between Mabel Bayard and the young First Lady. Grover Cleveland’s female friends had been the source of a great deal of comment in the press.  Cleveland acknowledged fathering a child out of wedlock with another woman and his courtship of the young Frances Folsom, 28 years his junior, was much covered. The New York Times had reported on the relationship between Cleveland and Folsom in an 1886 article headlined, “The President’s Sweetheart.”

In a speech at Harvard in 1886, Cleveland criticized the press as “purveyors of ‘silly, mean, and cowardly lies that every day are found in the columns of certain newspapers which violate every instinct of American manliness, and in ghoulish glee desecrate every sacred relation of private life.’”

These press reports, along with the new technology of the movable camera, inspired Brandeis to develop the new legal theory of privacy. 

Brandeis and Warren began their article by observing that the common law had recognized protections for liberty and property through history. But they said times had changed. They found a right to privacy in the “right to life.” “The right to life,” they wrote, “has come to mean the right to enjoy life, – the right to be let alone”

Brandeis and Warren left no doubt that they were responding to newspapers and that era’s advance in technology – the movable camera that allowed photographers to take photos of people without permission. They wrote:

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Brandeis and Warren noted that E.L. Godkin, founder of the Nation, had criticized sentimentalism in the press. He had written about a case brought by a dancer, Marian Manola, against a photographer who had secretly photographed her from a theater box as she was playing a role requiring her appearance in tights.

“The press is overstepping in every direction the obvious bounds of propriety and of decency,” wrote Brandeis. “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”

They wrote that gossip, “both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.”

Illustration by Steve Edwards

First cases

By the time that Brandeis was on the Supreme Court, the new technology that was raising privacy questions was wiretapping. In Olmstead v. United States in 1928, the court concluded that wiretapping did not violate the Fourth Amendment because it did not involve trespass into a person’s home. “There was no search of the defendant’s houses or offices,” the court wrote.

Brandeis dissented. He did not mention his law review article but his words resonated with the same views, including his phrase about the right to be let alone. “Subtler and more far reaching means of invading privacy have become available to the government.” he wrote. “Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” 

Brandeis said that the Framers “knew that only part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.  They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”

Development of constitutional right to privacy

During Brandeis’ first decade on the Supreme Court, the right to privacy came up in contexts that did not involve the media but rather in the rights of individuals to control their bodies, families and other private decisions.  

The cases involved the right of a school teacher to teach German, the right of Catholic parents to send their children to parochial schools and the right of a woman with a low I.Q. to have a baby. These decisions involving the autonomy of the individual and the family became the constitutional basis of the right to privacy.

Robert T. Meyer was arrested on May 25, 1920 for teaching German to 10-year-old Raymond Parpart. He was sentenced to 30 days in jail and a $25 fine.

Nebraska and 21 other states had passed laws against foreign language instruction in reaction to immigration, in bitterness toward Germans after World War I and in reaction to the Russian Revolution. The Nebraska law said only English could be taught to children before eighth grade so that English would become their “mother tongue.” The state claimed it had the power to “compel every resident of Nebraska so as to educate his children that the sunshine of American ideals will permeate the life of the future citizens of this Republic.”

The Supreme Court threw out the law. It said that the “liberty” protected by the 14th Amendment was more than freedom from bodily restraints. It also included “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men.”

The same angry political atmosphere in the United States led to Oregon passing a law in 1922 requiring that all children between 8 and 16 attend public schools.  Gov. Walter M. Pierce said that if “the character of the education of such children is to be entirely dictated by the parents of such children,…it is hard to assign any limits to the injurious effect from the standpoint of American patriotism.”

The Catholic Society of the Sisters of the Holy Names of Jesus and Mary challenged the law arguing they could teach patriotism just as well as the public schools.

The Supreme Court again struck it down writing, “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” The child is not the “mere creature of the state,” the court said. 

The court was not so protective of privacy rights, however, in the shameful case involving the sterilization of Carrie Buck. Buck was a young woman in Virginia who was sterilized because she did poorly on an I.Q. test. Half of the white males were categorized as morons under the test.

Justice Oliver Wendell Holmes, famous for his decisions championing free speech, wrote the decision upholding the sterilization. He noted that Buck, her mother and daughter all were mentally defective and declared, “Three generations of imbeciles are enough.” Holmes left out mention that one of Buck’s daughters made the honor roll.

Holmes later wrote a friend that it “gave me great pleasure” to uphold the sterilization law because of his worries about overpopulation and fears that whites would be overwhelmed by brown and yellow races.”

By 1942, the Supreme Court was ready to turn away from its Buck decision.  Oklahoma law permitted the sterilization of habitual criminals and a judge had ordered a vasectomy for Jack T. Skinner, whose three felonies included stealing chickens. Justice William O. Douglas wrote, “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”

Griswold v. Connecticut

One of the most famous privacy cases in Supreme Court history was Griswold v. Connecticut in which the court ruled that laws against providing birth control to married women were unconstitutional.

The decision was handed down in 1965, but the controversy had begun in the 1920s. Katherine H. Hepburn, the mother of the famous actress, was one of three organizers of a public meeting in 1923 that led to the formation of the Connecticut Planned Parenthood League to fight the law. First attempts failed.

Subsequently, Dr. C. Lee Buxton, head of the Yale Medical School’s obstetrics unit in the 1950s was shocked to discover that he could not prescribe birth control devices for his married patients. He joined forces with Estelle Griswold and Yale law professor Fowler V. Harper to bring a lawsuit.

Griswold, a Junior Leaguer, opened an eight-room birth control clinic in New Haven in 1961. She knew she was likely to be arrested. That was the point. She wanted to challenge the state law. Griswold was arrested and charged. The criminal complaint said her crime was that she “did assist, abet, counsel, cause and command certain married women to use a drug, medicinal article and instruments, for the purpose of preventing conception.” Both Griswold and Dr. Buxton were convicted and fined $100 each. On June 7, 1965 the Supreme Court voted 6-2 to overturn the convictions.

The court’s decision recognized a constitutional right to privacy for the first time, but no five justices had the same rationale for where in the Constitution they found that unenumerated right.

Justice Douglas, who wrote the main opinion, reasoned that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  

He said that five amendments in the Bill of Rights created these “zones of privacy.” They were the First Amendment’s freedom of association, the Third Amendment’s limits on quartering troops, the Fourth Amendment’s freedom from unreasonable searches and seizures, the Fifth Amendment’s right against self-incrimination and the Ninth Amendment’s reservation of rights to the people. 

“The present case then,” wrote Douglas, “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees…We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is coming together for better or for worse, hopefully enduring, and intimate to a degree of being sacred. The association promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble purpose as any involved in our prior decisions.”

Three other justices said they agreed with Douglas but issued their own opinions. Justice Arthur Goldberg expanded on the role of the little used Ninth Amendment.  He quoted from James Madison’s speech to Congress stating the importance of the Ninth Amendment in protecting rights not enumerated in the Bill of Rights. “To hold that a right so basic and fundamental and so deep-rooted in our society as the as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it not effect whatsoever.”

Two other members of the majority – Justices Byron R White and John Marshall Harlan – said they could not agree with either Douglas or Goldberg. They said that the law violated a liberty protected by the 14th Amendment. 

In retrospect, Douglas’ opinion about constitutional penumbra – the light, outer part of a shadow – may have done more harm than good. It was often ridiculed and turned out not to be a convincing constitutional home for protecting privacy.

Loving v. Virginia

Mildred and Richard Loving, who won their case challenging Virginia’s law against interracial marriage. Photo courtesy of Wikimedia Commons.

A little after midnight in July, 1958, Caroline County Sheriff Garnett Brooks and his deputy invaded the bedroom of Mildred and Richard Loving, demanded they get out of bed and hauled them off to jail.

“They were standing over the bed,” Mildred Loving recalled in an interview we had in 1987 in her rural Virginia farmhouse. “They told us to get up and get dressed, that we had to come with them.

“I was crying. I was scared and confused – and angry that they would walk into our home without so much as a knock. The sheriff asked Richard why did he marry me. Richard got kind of smart and asked him why did he marry his wife.”

Brooks put the Lovings in the police car and carted them off to jail, drinking whiskey along the way.

The criminal charge was simple: “Richard Perry Loving being a white man and said Mildred Delores Jeter being a colored person did unlawfully go out of the State of Virginia for the purpose of being married” and were “cohabiting as a man and wife against the peace and dignity of the Commonwealth.”

Virginia was one of 17 states at the time that criminalized inter-racial marriage. Missouri was another.

“I am sure now the sheriff was joking when he asked a black trusty if he wanted to spend the night with me. It scared me so, I hate to think about it,” she recalled.

The Lovings were found guilty in January, 1959. Judge Leon M. Bazile said, “Almighty God created the races white, black, yellow, malay and red and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Bazile levied a one year sentence but said he would suspend it if they got out of the state and stayed out for 25 years.

The Virginia courts later upheld the state law saying that its purpose was to “preserve the racial integrity of its citizens” and prevent “the corruption of blood,” “a mongrel breed of citizens” and “the obliteration of racial pride.”

After the Lovings were convicted, they moved to Washington for a time and Richard worked as a bricklayer, but they missed their families and hometown and moved back.

Mildred lay awake at night because she was afraid the police would come.

“I had all parts of thoughts at night,” she said. “Is this the night the police will come? What can we do if they come? Maybe if I keep a light on they would think we are not asleep and go away. How did we get into this mess? Is it worth the hassle? Why didn’t we stay in D.C.? God help us please.”

Virginia defended its law saying marriage was traditionally a state matter. The court should stick to the original intent of the authors of the 14th Amendment, the post-Civil War amendment. The authors had no notion that equal protection of the law or protecting people’s liberties would include interracial marriages. 

Congressmen had said during the debate that the amendment would not affect laws against interracial marriages.

The Supreme Court threw out the Virginia law on June 12, 1967. The law violated both the equality and liberty promises of the 14th Amendment, the court said.

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” wrote outgoing Chief Justice Earl Warren. “To deny this fundamental freedom on so unsupportable a basis as the racial classifications…so directly subversive to the principle of equality at the heart of the 14th Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”

Roe v. Wade six years later and Obergefell v. Hodges, 48 years later, cited this same reasoning – this marriage of liberty protected by due process with equal protection – in support of the personal decisions to have an abortion and to marry a person of the same gender. 

The Supreme Court’s decision in Loving was perfectly timed to the changing social mores. Guess Who’s Coming to Dinner, about the marriage of an interracial couple, came out six months after Loving and was a box office hit, even in the South. The Black protagonist, Sidney Poitier, was a Nobel prize winning doctor.

Roe v. Wade

In 1972, the court expanded Griswold by ruling that states could not ban the distribution of birth control devices to unmarried persons. Justice William J. Brennan Jr. wrote, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The Griswold decision set the stage for the most important privacy decision of the 20th Century – Roe v. Wade.   

Sarah Weddington, a young lawyer in Austin, Tex. in the late 1960s, often heard that pregnant women were traveling to Mexico from that university town to have abortions. Many women came back with infections

Norma McCorvey, of Dallas, brought Weddington the test case she was looking for. McCorvey was unmarried and pregnant with her second child. Her first child was being reared by her mother. McCorvey, a high school dropout, couldn’t hold a job and feared she’d lose her job waitressing if her pregnancy became known.

Justice Harry Blackmun wrote the opinion for the court striking down the Texas law. Blackmun was a Nixon appointee and expected to vote along with Chief Justice Warren Burger. They were called the Minnesota twins. But Blackmun surprised everyone.

Father of three assertive daughters and husband of a forceful wife, Blackmun spent the summer of 1972 in the Mayo Clinic researching abortion. The research led him to the trimester formula. During the first trimester of pregnancy, the abortion decision should be the woman’s in consultation with her doctor. During the second trimester, the state could regulate abortions consistent with the health of the mother. After the fetus was viable – could live outside the womb – the state could prohibit abortion unless the life or health of the mother was at stake.

Blackmun concluded that a woman’s “right of personal privacy includes the abortion decision, but…this right is not unqualified and must be considered against important state interests in regulation.” 

The 7-2 decision lacked a clear statement about where the court found the unenumerated right to privacy. Blackmun used equivocal language: “The right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In Dobbs, Alito maintained this equivocal language left the right in doubt.

Firing pregnant teachers

The court again relied on both liberty and equal protection in protecting teachers from pregnancy discrimination.

In 1970, Jo Carol LaFleur, then 23, became pregnant while a teacher at Patrick Henry Junior High School in Cleveland. School board policy required pregnant teachers to take unpaid leave five months before birth. They could reapply for a position the school year after the baby turned three months but would be subject to a physical exam and wouldn’t get a job unless one was open. The schools said pregnant women often couldn’t perform required duties during the last five months of pregnancy and that the policy was intended to protect the health of the mother and baby.

LaFleur was forced to resign in March when her due date wasn’t until July. The Supreme Court ruled in 1974 that the policy violated LaFleur’s liberty protected by the Due Process clause of the 14th Amendment.

“Freedom of personal choice matters of marriage and family life is one of the liberties protected by the due process clause,” the court decided

Taking in a grandson

When John J. Moore Jr.’s mother died before his first birthday, he went to live with his grandmother, Inez Moore, who owned a 2/1/2 story frame duplex in East Cleveland. 

Inez Moore had raised six of her own children. She became John Jr.’s legal guardian and the boy fit in easily with the large extended family in the duplex. 

Trouble began six years later when the City of East Cleveland decided that there were two families living in the house because another grandson of Inez’s, Dale, also was living in the duplex. The two boys were cousins and Dale was like a younger brother to John.  

But to East Cleveland, which was trying to stem the migration of Blacks from Cleveland proper, two families in one house was a violation of the housing code. It fined her $25 and sentenced her to five days in jail.

In 1977, the Supreme Court ruled 5-4 that Inez Moore had every right to bring her extended family under one roof. 

Justice Lewis Powell, a Nixon appointee, relied on substantive due process, writing that the court “has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment…”

When Moore died in 1983, she had a special provision in her will requesting that her home be maintained as a place of refuge for her children and grandchildren.

Gay sex is illegal in 1986, but not in 2004

An Atlanta police officer, Patrolman Keith Torrick, was serving a warrant at Michael Hardwick’s home in 1983. After stepping into the apartment, he looked through an open bedroom door and saw Hardwick in a bathroom having oral sex with a man – then, a crime in Georgia. 

The Supreme Court upheld the law 5-4 in a controversial 1986 decision, Bowers v. Hardwick. Justice Byron R. White wrote the decision announcing that none of the court’s previous privacy cases “bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy…No connection between family, marriage or procreation on the one hand and homosexual activity on the other has been demonstrated.”

Justice Powell later acknowledged that he had switched sides after having initially voted to strike down sodomy laws.

Blackmun, the author of Roe, had to change his draft majority opinion into a dissent. He quoted from Brandeis about the “right to be let alone” being the most comprehensive right of man.

It appeared at the time that the Supreme Court would soon be heading farther to the right with the nomination of Robert Bork to replace Powell moving toward the Senate. But Bork was defeated because he told the Senate straight out that there was no right of privacy. Anthony M. Kennedy was elevated to the court instead.

In a twist that no one predicted at the time, Kennedy became the most important advocate of same-sex rights on the court, writing a string of 5-4 decisions extending constitutional protect to same-sex sodomy and same-marriage.

Lawrence v. Texas in 2004 overturned Bowers v. Hardwick only 18 years after it had been decided. Then, the court threw out the Defense of Marriage Act and in 2015 recognized a constitutional right to same-sex marriage in Obergefell v. Hodges.

Kennedy breathed new life into the 14th Amendment’s protection of what he called “equal liberty.” Kennedy relied on the Loving interracial marriage decision and the LaFleur pregant teacher firing to merge liberty and equality. 

Kennedy didn’t use the word privacy. He talked about liberty, a word that is in the Constitution. He wrote in the 2015 same-sex marriage decision that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy…Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.”

Justice Alito made clear in Dobbs that he doesn’t think much of Kennedy’s high-flown language. But he also made clear that he was limiting Dobbs to abortion where another potential life is involved.

Except for Justice Thomas, the conservative majority on the Supreme Court doesn’t seem to have any plans to apply its reasoning to same-sex marriage or relations or interracial marriage. Congress and the president decided this month not to take any chances and passed a law requiring same-sex and interracial marriages be recognized across the country.

Click here to support Gateway Journalism Review with a tax-deductible donation. (GJR was founded as the St. Louis Journalism Review.)

William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.

Originalism vs. a living Constitution

Is the Constitution dead or alive? 

The late Justice Antonin Scalia, long the chief advocate of originalism on the Supreme Court, was unequivocal. “The constitution that I interpret is not living but dead,” he said in a 2008 speech. 

His counterpart, the late Justice William J. Brennan Jr., intellectual leader of the Warren Court, was equally insistent it was a “living Constitution.” He said, “the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone.”

At the time the two men staked out their positions in the 1980s, Brennan’s was more widely held and Scalia’s on the margins.

But Scalia’s view is dominant on today’s court. Even the justices appointed by Democrats talk at times more like originalists than adherents of a living Constitution.

The Dobbs v. Jackson decision last June – overturning the abortion right – dramatized that originalism has captured a majority of the current court. In other words, the majority believes that today’s decisions should be based on what the original framers of the Constitution meant when they wrote the text.

Since Dobbs, an outpouring of legal scholars and commentators have criticized and ridiculed originalism as “bunk,” a “charade” and misleading con job that promises objectivity it can’t and doesn’t deliver.

Among the questions the critics raise are:

  • Why link the meaning of the Constitution to the flawed Founding generations who protected slavery and denied women rights? 
  • Why link the meaning to Framers who left out many important values – equality, democracy, the right to vote?
  • Why originalism when the Constitution itself says nothing about how it is to be interpreted?
  • Why originalism when the Framers themselves did not advocate it? In fact, a number of the Framers suggested otherwise. The advocacy of originalism did not grow out of the Founding generation but was a 1970s phenomenon built by the conservative movement directly targeting the rights revolution of the Warren Court and seeking to roll back Roe.
  • Why rely on the meaning of the Framers of the 14th Amendment after the Civil War for the interpretation of liberty and equal protection when those Framers ran racially segregated schools, opposed interracial marriage and refused to include women under the equal protection guarantee? The notion that same-sex marriage, interracial marriage or contraception were covered by the 14th Amendment would have seemed to them like it came from outer space.
  • Why in the Dobbs decision would the court look for historical guidance at the practices in England in the 1300s, during the Middle Ages?

Growth of originalism

No one would have believed when Roe was decided in 1973 that a majority of the Supreme Court would believe in originalism half a century later when the right was read out of the Constitution.

Robert Bork, a brilliant Yale law professor, planted the seeds of originalism in a 1971 article in the Indiana Law Journal criticizing the Warren Court’s constitutional interpretations as unmoored from the text of the Constitution.

Central to his argument was his critique of Griswold v. Connecticut, the 1965 decision where the court struck down a Connecticut law making it a crime to provide married women with contraceptives.

Justice William O. Douglas, in his decision, recognized zones of privacy that extended from various parts of the Bill of Rights. He likened these zones of privacy to penumbras, the lighter part at the outside edge of a shadow. 

He found penumbras of privacy in the First Amendment freedom of association, the Third Amendment ban on quartering troops in homes, the Fourth Amendment guarantee against unreasonable searches of homes and private effects, the Fifth  Amendment right to remain silent and the Ninth Amendment reservation of  unenumerated rights to the people.

Not a few constitutional scholars thought Justice Douglas’ constitutional reasoning in Griswold was decidedly ephemeral. Eight years later when the court decided Roe, it was equivocal on where it found the right of a woman to make the abortion decision. Was it in the shadows of the Bill of Rights or in the liberty protected by the 14th Amendment? Justice Blackmun said the court favored the latter approach.

Justice Samuel Alito, in writing the Dobbs opinion this year, ridiculed the lack of a clear constitutional basis in either of those formulations.

Bork’s defeat

Bork ended up paying dearly for arguing there was no privacy right. When President Ronald Reagan nominated him for the Supreme Court, Democrats led by Sen. Edward M. Kennedy, D-Mass., ran a political style campaign against confirmation emphasizing Bork opposed privacy. Bork didn’t help himself by testifying that privacy was not in the text of the Constitution so it wasn’t covered.

But already Reagan had succeeded in naming another brilliant originalist to the court, Scalia, whom the Senate confirmed unanimously – partly because he was very smart, partly because the Democrats were more focused on trying to stop the elevation of William Rehnquist to chief justice and partly because he was Italian-American, a big Democratic constituency.

Attorney General Edwin Meese also chimed in on originalism. At a July 9, 1985, speech to the American Bar Association, Meese advocated a “Jurisprudence of Original Intention.”

It is our belief,” he said, “that only ‘the sense in which the Constitution was accepted and ratified by the nation,’ ….provides a solid foundation for adjudication. Any other standard suffers the defect of pouring new meaning into old words, thus creating new powers and new rights totally at odds with the logic of the Constitution and its rule of law.” 

Meese went on to maintain that the Supreme Court’s application of the Bill of Rights to the states was at odds with the original intent of the Framers. The First Amendment’s ban on an established church should not have been applied to the states, he said.

Meese’s speech was mostly received with criticism and ridicule. Gerald Gunther, then a leading constitutional expert, called his speech “an extremely unusual position…Of the many scholars writing on the proper criteria for constitutional interpretation, I know of only one…who advocated simply reading the legislative debates of the Constitutional Convention to define what the Framers would have said about all the problems this constitutional polity has faced over the years. I think Attorney General Meese has made a mistake identifying himself with that discredited notion of constitutional interpretation.”

Supreme Court Justice John Paul Stevens, a Ford nominee, said in a speech that “no justice who has sat on the Supreme Court during the past 60 years has questioned” incorporation of the First Amendment to apply to the states.

Brennan gave the main response in a speech Oct. 12, 1985, at Georgetown University. He said, “Those who would restrict the claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.

“Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War Amendments to the charter – abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote – we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of slave caste.”

Scalia prevails

Meese’s advocacy of original intent didn’t catch on.

Determining original intent is too tricky. Where would one look for the original intent of the drafters of the Constitution? In James Madison’s diaries? In the statements made at ratifying conventions? In the Federalist papers written by Madison, Alexander Hamilton and John Jay under the pseudonym Publius? Historians know those papers emphasized the democratic portions of the Constitution to give people a more positive impression.

And what of Thomas Jefferson and John Adams, two important Founders who were out of the country on diplomatic assignments to France and England respectively? Jefferson is the author of the metaphor about a “wall between church and state,” but he wasn’t around for the adoption of the Bill of Rights. Justice William H. Rehnquist argued that made Jefferson’s metaphor irrelevant.

Scalia emphasized original meaning instead of original intent.

Scalia directly addressed his objection to a living constitution in an interview with NPR’s Nina Totenberg: “If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you’ve eliminated the whole purpose of a constitution. And that’s essentially what the ‘living constitution’ leaves you with.”

With a living Constitution, the Supreme Court becomes a roving constitutional convention without the needed supermajorities. If people want to change the Constitution, say the originalists, they must pass an amendment, even though that is hard.

Scalia called himself a “faint-hearted” originalist because he didn’t want to get rid of all of the precedents he thought were wrongly decided. Clarence Thomas, on the other hand, is much more likely to throw out a precedent he thinks was wrongly decided. That’s why he was ready in Dobbs to move on to same-sex marriage and contraception.

Scalia told NPR, “You can’t reinvent the wheel. You’ve got to accept the vast majority of prior decisions…I do not argue that all of the mistakes made in the name of the so-called living constitution be ripped out. I just say, ‘Let’s cut it out. Go back to the good, old dead Constitution…I am a textualist. I am an originalist. I am not a nut.”

Like an umpire

One of the attractive things about originalism is that it’s simple to explain and it sounds more empirical and less judgmental than a living Constitution. Originalists say the method discourages justices from activism and reaching out for new rights not specified in the Constitution.

Illustration by Steve Edwards

Chief Justice John Roberts leaned on the appeal of empiricism in his confirmation hearing when he said famously: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire…I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Critics say, however, that judging isn’t like that. Voting patterns of justices show unsurprisingly that most justices vote their philosophic preferences, which often are linked to their political preferences and the president who appointed them. And originalists often are activists, the critics say, citing Dobbs, which overturned a 49-year-old precedent, and the decisions recognizing the individual right to own and carry a gun in the house and on the street.

Critics also point out that justices aren’t historians and that law office history often falls short.

“For most constitutional provisions, there is no ‘original meaning’ to be discovered,” writes Berkeley law dean Erwin Chemerinsky, author of a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” He said that instead of a clear historical answer “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” 

 A number of historians thought Justice Stevens’ history on the original meaning of the Second Amendment was more persuasive than Scalia’s, but Scalia had the fifth vote to recognize an individual Second Amendment right.

Similarly, Justice Ketanji Brown Jackson probably had her originalist history right in an oral argument earlier this fall in a race case, but that doesn’t mean she will persuade the originalists. 

She said, “I understood that we looked at the history and traditions of the Constitution, at what the framers and the Founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause…in a race conscious way. I don’t think that the historical record establishes that the Founders believed that race neutrality or race blindness was required, right?”

Historians say she is right, but those who count votes on the Supreme Court don’t expect many of the originalists to go along with her analysis.

Admonitions through history

Critics of originalism point to famous statements by founders, framers and great justices that seem to reject elements of originalism. 

Thomas Jefferson wrote: “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched…40 years of experience in government is worth a century of book-reading; and this they would say themselves, where they to rise from the dead.”

John Marshall, the great chief justice of the first third of the 19th century, wrote in support of the continuation of the Bank of the United States: “…we must never forget that it is a constitution we are expounding” and that the Constitution is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

Justice Robert Jackson wrote in the Supreme Court decision rejecting Harry S. Truman’s seizure of the steel mills during the Korean War: “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

David Cole, national legal director of the ACLU and a professor at Georgetown University Law Center, says the broad language of the Framers in parts of the Constitution are clues that they were writing for the future and not just their time.

“The fact that the framers used general terms, such as ‘liberty,’ ‘due process,’ ‘equal protection,’ and ‘cruel and unusual punishment,’ strongly suggests that they understood they were drafting a charter meant to long outlive them, one that could guide unforeseeable resolutions to unforeseen problems. If you want to bind people to your specific intentions, you write with specificity. The framers chose not a stringent straitjacket but a set of enduring core principles whose meaning and applicability would unfold over time to meet the evolving needs of a growing nation…” 


There are alternatives to originalism and the living Constitution, but they don’t have the same pithy sound bite quality. 

David Strauss, a law professor at the University of Chicago Law School, advocates a common law approach. This method recognizes that broad and open-ended provisions are fleshed out gradually over time as judges confront particular cases and seek to make sense of  previous decisions. “It’s what judges at every level have always done when they confront new cases,” says Strauss. 

Justice Stephen Breyer advanced another approach in a book on “Active liberty.” It is making decisions about the Constitution “in light of its text, purposes, and our whole experience.” He emphasizes judicial modesty, deference to Congress, connection to the people with recognition of people’s changing needs and demands.”

At the moment, though, the active and activist Supreme Court isn’t looking for alternatives. Just as it took originalism half a century to take hold, any other approach would probably take decades to develop.

Click here to support Gateway Journalism Review with a tax-deductible donation. (GJR was founded as the St. Louis Journalism Review.)

William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.

The Supreme Court is losing legitimacy

The Supreme Court’s decision overturning Roe v. Wade has resulted in the steepest drop in respect for the U.S. Supreme Court in almost a century – the steepest since the Roosevelt court packing crisis of 1937.

James L. Gibson, a political science professor at Washington University and national expert on the subject, wrote in September that the Dobbs v. Jackson decision overturning Roe “may be the most legitimacy threatening decision since the 1930s…Dobbs produced a sizable dent in institutional support, perhaps an unprecedented dent, in part because abortion attitudes for many are infused with moral content.”

Gibson added, “in light of the substantial tilt of the court to the right since 2020, the court’s legitimacy may be at greater risk today than at any time since FDR’s attack on the institution in the 1930s.”

A Gallup poll shows that after Dobbs disapproval of the court rose to the highest point this century – 58 percent – and approval sank to the lowest – 40 percent.

If the five conservative justices in the Dobbs majority hold together to overturn other long-standing precedents, then the court will tip sharply to the right and could continue on that path for years. The current term’s affirmative action cases involving college admissions at Harvard and the University of North Carolina, are  likely to end affirmative action and deepen the impression that the court has taken a sharp right turn. The court’s six most conservative justices also are more willing to allow religion in the public square than the courts of the past half century.

Gregory Magarian, a First Amendment scholar at Washington University Law School and former Supreme Court clerk, says today could be the conservative political counterpoint to 1954 when Brown v. Board heralded the beginning of the Warren Court and its expansion of civil rights, civil liberties and criminal rights.

One difference, Magarian says, is that the agenda of the current five-justice majority is less popular than the Warren Court’s, despite the “Impeach Earl Warren” signs that dotted highways in the 1950s and 60s. The reaction to the Dobbs decision, expressed by voters in the November 2022 midterm elections, appears to confirm the view that Dobbs is unpopular nationwide.

One major substantive difference between the Warren Court and Dobbs majority is that the Warren Court was expanding the rights of Blacks and women to fulfill promises of Equal Protection in the Constitution. But Dobbs was a major step in the opposite direction, requiring women in many states prove their lives were at risk before they could receive an abortion. 

This was the biggest loss of liberty and equal rights in almost a century of steadily growing individual liberties.

If the court’s conservative bloc holds together, the combination of a powerful Supreme Court and a hard to amend Constitution could mean the Constitution we celebrate in 2037 will be substantially different from what it was before former President Trump’s justices tipped the scales of justice.

Other problems of legitimacy

About 85 percent of Americans favor abortion rights under all or some circumstances, according to a Gallup poll. But there are additional reasons for the court’s legitimacy problem. 

Scenes outside the Supreme Court and Dirksen as the Judiciary Committee hearings begin for the nomination of Amy Coney Barrett

One is the lack of respect for stare decisis, precedent. The Dobbs majority jettisoned a precedent of almost 50 years that had been reaffirmed 30 years ago. Respect for precedent is central to legitimacy because it provides a check on the justices simply voting their personal or political preferences.

Roberts seemed almost to be pleading with his conservative colleagues when he wrote in Dobbs: “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.”

The Dobbs dissenters said: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

In addition, President Trump’s three judicial appointments – Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had appeared to affirm Roe during confirmation hearings, never suggesting they were ready to overturn it.

Also, the Dobbs decision followed more than 40 years of Republican presidents from Ronald Reagan to George H.W. Bush, to George W. Bush to Donald Trump nominating justices they hoped would overturn Roe. Those Republican presidents were able to name 11 justices, while Democratic presidents elevated five. Six of the nine justices on the current court were appointed by Republicans even though Democrats held the presidency for 16 of the past 28 years and won the popular vote in six of the last seven presidential elections.  

In addition, the Senate rushed Barrett through confirmation hearings immediately before the 2020 election even though Senate Majority Leader Mitch McConnell had refused to hold a confirmation hearing for Merrick Garland under similar circumstances four years earlier.

Altogether, this gave the appearance that Trump and McConnell had packed the court through hardball politics and counter to constitutional norms.

Plus, it appeared the court majority had weakened democratic means for changing the direction of the court any time soon. The Roberts Court found key parts of the Voting Rights Act unconstitutional, refused to block partisan gerrymanders that had helped Republicans control state legislatures and congressional reapportionment and finally had allowed Republicans to impose new restrictions after the 2020 election that limited voters in the name of election integrity. Democratic efforts to nationalize voting requirements have run into the counter-majoritarian, and extra-constitutional constraint of the filibuster.

An additional blow to legitimacy has been Justice Clarence Thomas’ refusal to recuse himself from cases involving the 2020 presidential election, even though his wife, Ginni, was deeply involved with the Trump White House in election denials.

Legal ethics experts say Thomas should recuse himself from cases involving the Jan. 6 insurrection at the Capitol. But Thomas did not recuse himself recently when the court refused to block the House Jan. 6 committee’s subpoena for phone records of Kelli Ward, chairwoman of the Arizona Republic Party. Thomas dissented from the court’s action without comment. So, he was taking the side of the election deniers and his wife.

The leak of the Dobbs draft opinion last spring was an unprecedented breach of court protocol and reflected deep divisions within the institution, undermining court legitimacy. The failure of the court’s investigation to uncover the leaker and the investigation’s tender handling of interviews with the justices has not helped and probably has hurt the court’s reputation. Critics said the court’s investigation should have subjected the justices to the same probing questioning as other court employees and pressed the justices to sign an affidavit of noninvolvement like other court employees.

In addition, last fall, The New York Times disclosed that a former abortion foe had orchestrated social contacts between wealthy abortion foes and Justices Alito and Thomas. That news unsettled the court because the man claimed Alito had leaked the outcome of a 2014 abortion-related decision at a dinner with anti-abortion fundraisers – a charge Alito denied.

Earlier in December, 2022, the House Judiciary Committee took up these matters in a hearing on a bill that would require the Supreme Court to adopt an ethical code or adhere to the code that already applies to lower level federal judges. The Government Accountability Project and a host of other liberal groups called for passage of the bill, the Supreme Court Ethics, Recusal and Transparency Act of 2022.

Ironically, former President Trump himself doesn’t think the Supreme Court has legitimacy. After the court turned down his attempt to keep his income taxes shielded, Trump wrote on Truth Social, 

“Why would anybody be surprised that the Supreme Court has ruled against me, they always do! It is unprecedented to be handing over Tax Returns, & it creates [a] terrible precedent for future Presidents. The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price. They refused to even look at the Election Hoax of 2020. Shame on them!” 

Trump followed up that post in early December calling for termination of rules in the Constitution so he can be “declare(d) the RIGHTFUL WINNER” or “have a NEW ELECTION.” He wrote: “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great ‘Founders’ did not want, and would not condone, False & Fraudulent Elections!”

The title on a conlaw professor’s blog on Trump’s post was tongue in cheek: “Trump Stands in the Middle of Fifth Avenue and Shoots the Constitution.” 

The legitimacy of the Supreme Court can only suffer when the former president, who has appointed one-third of the court’s justices, charges that the court has lost its honor and that the Constitution should be set aside to reinstate him to power. Trump maintained a day after the post that he was misunderstood.

Kavanaugh, the new middle?

The right turn that the court is taking might not end up as sharp as it now seems.

Women, many wearing black veils protesting the nomination of Brett Kavanaugh to the U.S. Supreme Court at the Hart Senate Office Building on Friday, Sept. 7, 2018. (Photo by Phil Roeder via Flickr)

 The five-justice majority that overturned Roe may not be as doctrinaire and closely knit as has been portrayed in the media and political arena.

Justice Kavanaugh signed on to Justice Alito’s majority opinion in Dobbs, but wrote a separate concurring opinion that suggested limitations. For one thing, he said Dobbs would not open the way for states that barred abortion to also criminalize a woman going out of state to get an abortion.

As he put it: “May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.” (Skeptics note, however, that the Constitution is no more explicit in protecting a right to travel than it was protecting a right to abortion.)

Kavanaugh also emphasized that Dobbs did not jeopardize other decisions based on personal privacy – interracial marriage, access to birth control or same-sex marriage.

Kavanaugh wrote, “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” That assurance contradicted Justice Thomas, who called on the court to reconsider its decisions upholding contraception and same-sex relations in future cases.

The reason that Kavanaugh’s view is important is that he could be a fifth justice, along with the chief justice and the three justices appointed by Democrats to limit the court’s movement to the right.

Chief Justice Roberts will certainly try to lure Kavanaugh to the middle as he apparently failed to do in Dobbs. Roberts would have discarded Roe’s trimester formula but preserved an abortion right for a shorter period of several months to give women time to make a decision.

The legitimacy of the Supreme Court has long been Roberts’ most important goal. Roberts is 67. The Roberts Court could last 20 or more years, even past the 250th anniversary of the Constitution. Roberts has demonstrated repeatedly, including in his decisive vote upholding Obamacare, that legitimacy is more important to him than ideology. 

Lee Epstein, the former Ethan A. H. Shepley Professor and Distinguished Professor at Washington University, is the nation’s leading expert on Supreme Court voting patterns. She says that last term’s marquee decisions overturning Roe and protecting the right of people to have guns outside the home, were predictable. But she adds that Kavanaugh, the new middle of the court, is unpredictable.

In a Slate interview this fall she put it this way: “It’s hard to believe that people didn’t see this (Dobbs) coming. Obama is president for eight years; he gets two appointments. Trump is president for four years; he gets three appointments, and he moves the center of the court toward Brett Kavanaugh, away from the chief justice. So, yeah, I told you so. There’s a lot of predictability here, and abortion and guns—not at all surprising.”

But she adds, “there’s another side to this story, and that’s from the data side. If you look at the data from last term, this doesn’t look like a really socially, culturally extreme court. And that’s what’s a little perplexing about last term …right now, there’s a side to this court that looks, kind of, standard issue Roberts Court.”

There was above average unanimity, with 50 percent of the decisions unanimous compared to the average of 33 percent in recent decades. And there weren’t a lot of 6-3 conservative-liberal splits. Just 15 percent of the decisions came out that way.

In the cases that got the most attention, last term’s decisions didn’t look much different than previous terms, she says. “Look at the 2020 election challenges. Look at the Trump tax records, Obamacare, the cheerleader case…NCAA, the student athlete case…. This was not a total blowout for the Democratic side, which to me was a little unexpected…So, I’m going to push back a little bit on that point, the term looks different; actually it doesn’t look that much different.”

The mystery is Kavanaugh. “If you look at the data, he’s normally, not always, but normally with the chief and why he didn’t join the chief here (in Dobbs) is perplexing to me.”

It’s as if there were two courts operating at the same time. A Trump Court where the three Trump appointees join Alito and Thomas as they did in Dobbs. And then there’s a Roberts court where Kavanaugh comes along with the chief justice and joins the Democratic appointees in a more moderate decision.

A signal of whether a Roberts/Kavanaugh middle bloc will check the more conservative justices could be the decision in Moore v. Harper, the “independent state legislature” case that was argued before the Supreme Court for three hours on Dec. 7. The case will determine how far state courts can go in overturning state legislatures on election rules. 

The Republican controlled state legislature in North Carolina drew a congressional redistricting proposal that could have resulted in Republicans controlling 10 of 14 U.S. House seats in a state roughly equally divided between the parties. The state supreme court said this was a blatant partisan gerrymander and experts drew a new map that resulted in a 7-7 split in the 2022 Midterm elections.

The state legislature argues that the state supreme court could not interfere in its redistricting plan because the Constitution says, “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Common Cause and the Justice Department countered that past Supreme Court precedents have always recognized that legislative redistricting must comply with state constitutions and the state supreme court enforces those constitutions.

Rick Hasen, the nation’s leading expert on election law, blogged the oral argument Dec. 7 in which it appeared the court was divided into thirds. The three most conservative justices – Thomas, Alito and Gorsuch – are ready to adopt the independent state legislature theory and cut out state supreme courts. The three Democratically appointed justices – Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – oppose it. Chief Justice Roberts and Justices Kavanaugh and Barrett looked for a compromise that would allow state supreme court involvement unless its decision was extraordinary.

If a conservative center blocks the conservative right’s attempt to adopt the independent state legislature theory, then the court may appear more moderate.

A vibrant democratic response to Dobbs

One of the main criticisms of Roe from the time it was decided in 1973 was that it took the issue of abortion out of the democratic process at a time when a growing number of states were recognizing abortion rights. From 1967-73, four states repealed abortion bans and 13 others expanded abortion access in situations where a mother’s life or health was at risk or in cases of rape and incest.

The late Justice Ruth Bader Ginsburg favored abortion rights but criticized Roe because “it seemed to have stopped the momentum on the side of change.” 

Because abortion rights advocates could always fall back on the courts and the constitutional right recognized in Roe, they didn’t have to work as hard in the political arena. Meanwhile, Republican opponents of abortion rights built a powerful voting bloc that led to Republican presidents naming conservative, anti-abortion judges to the federal courts.

Justice Kavanaugh, in his opinion in Dobbs, said the decision “restores the people’s authority to resolve the issue of abortion through the processes of democratic self-government established by the Constitution.”

In the weeks after Dobbs, 12 states put abortion bans into place.

But arguably, the strength of the abortion-rights vote in the 2022 midterm election in helping Democratic candidates and passing abortion rights referenda illustrates that Dobbs revitalized the abortion rights supporters in the democratic process.

In five states, abortion was on the ballot – Kentucky, Michigan, California, Vermont, and Montana. In all five, voters supported protecting abortion access. In three, California, Michigan and Vermont, they voted to put abortion rights in the state constitutions.

Dobbs may have unlocked the vibrancy of the democratic process in regards to abortion with the result that more states voted to protect these rights in the 2022 elections. Congressional passage in December of a law protecting same-sex and interracial marriage is another sign of the Dobbs backlash in the democratic process. The legislation was fueled by reaction to Justice Thomas’ Dobbs concurrence calling for the court to reconsider other cases built on privacy, including same-sex marriage and contraception, although he didn’t mention interracial marriage, also partly based on privacy.

Winning in the democratic arena in some states doesn’t help those in states where abortion remains illegal. A majority of states ban or restrict abortion now, whereas  abortion was available as a constitutional right in all states before Dobbs. Supporters say a woman’s right to control her body should not be subject to a vote at the ballot box and for that reason is properly a constitutional right protected by liberty in the 14th Amendment.

 Previous crises of legitimacy

The Supreme Court has had crises of legitimacy before. The crises have resulted from one of four situations:

 –Packing the court: A meddling Congress or president or both have repeatedly changed the number of justices on the court to try to affect decisions.

Deciding a close presidential election: The court has twice become entwined in determining the results of a close presidential election, as it did in 1876 and 2000, taking actions that seemed to critics to be more political than principled.

Infamous decisions: Some of the most infamous court decisions in history have inflicted long-term damage to the court’s reputation. The 1857 Dred Scott decision denying Blacks constitutional rights led to the Civil War. Another was Lochner v. New York in 1905 during the Gilded Age of capitalist excess. The court elevated the right of contract over a law setting a 10-hour workday for bakers.

Forceful presidents: Some of the most influential presidents in history – Jefferson, Jackson, Lincoln and Franklin D. Roosevelt – maintained that they could independently interpret the Constitution and were not bound by a contrary Supreme Court interpretation. As FDR put it, the Constitution is a “layman’s document, not a lawyer’s contract.”

After President John Adams lost the 1800 election to Thomas Jefferson, Adams’ Federalist Party tried to add new federal judges to be appointed by Adams as a lame duck – the so-called Midnight Justices. It also reduced the size of the Supreme Court from 6 to 5 to deny Jefferson a court appointment. 

Jefferson’s party promptly reversed direction on the size of the court and in 1807 bumped the court up to seven to give Jefferson another appointment. Plus, the appointment of the Midnight Justices backfired because it led to the famous Marbury v. Madison decision establishing the Supreme Court as the arbiter of what the law is.

Jefferson and Jackson, two powerful Democratic presidents, quarreled with the Chief Justice John Marshall, the great Federalist chief who authored Marbury and other key decisions establishing federal actions, including the constitutionality of the Bank of the United States.

Both Jefferson and Jackson thought the president and democratic majorities in Congress and state legislatures should take precedence over constitutional decisions of the court. Jefferson’s views on state power led to the dangerous Nullification doctrine that eventually led to Southern secession and Civil War.

Congress gave Jackson two additional justices to increase the court to nine. Jackson appointed them and Congress confirmed them as the president was going out the door of the White House.

Lincoln gained prominence by attacking Chief Justice Roger Taney’s Dred Scott decision, which had read Blacks out of the Constitution. The Lincoln-Douglas debates were all about the Dred Scott decision. Two years later, Lincoln was president and the Civil War had started before he made it to Washington.

Lincoln, as president, ignored Taney’s decisions during the Civil War that would have required the president to abide by habeas corpus – the power of the court to free a prisoner. Also, Lincoln issued the Emancipation Proclamation on Jan. 1, 1863 even though most legal experts think he didn’t have constitutional authority to do it on his own. He wasn’t so sure himself.

Congress added a 10th vote for Lincoln to increase Republican control of the court, but after Lincoln’s assassination the Republican Congress reduced the court to seven so that President Andrew Johnson could not appoint Southern sympathizers  who would block their Reconstruction laws intended to give political rights to freed Blacks.

Congress increased the number of justices to nine giving President Grant two new appointments in 1869 – an action that led directly to overturning a Supreme Court decision denying the government the authority to issue paper money – greenbacks. The two new justices turned a 4-3 decision against greenbacks into a 5-4 majority authorizing them to pay off Civil War debt.

In the election of 1876, Supreme Court justices were deciding votes in a compromise that elected Rutherford B. Hayes – the loser in the popular vote. As part of the compromise, Hayes agreed to withdraw federal troops from the South. That allowed segregationists to disenfranchise Black voters for decades into the 20th century.

For the next half century or more, the Supreme Court was no friend of Blacks, women or workers. At the same time that the court was blocking attempts to use Reconstruction amendments and legislation for the purpose they were intended – extending rights to free Blacks – the court found a way to use those amendments to benefit the economic prospects of the industrialists of the Gilded Age.

In Lochner v. New York, 1905, the court held that the 14th Amendment passed after the Civil War protected contract rights for the benefit of employers. Lochner came to stand for this entire era of Supreme Court decisions striking down minimum wage and maximum hour laws. In Lochner, the court ruled that New York’s law setting a maximum 60 hour work week for baker’s was unconstitutional. 

Key elements of President Franklin D. Roosevelt’s New Deal were struck down by the Supreme Court at a time of national emergency during the Depression – laws such as the Agricultural Adjustment Act and National Recovery Act. The court ruled that FDR and Congress violated the freedom to contract by regulating business and labor.

When FDR won by a landslide in 1936, winning all but two states and electing a heavily Democratic Congress, he sought to pack the court. He said the elderly court, where the average age was 71, was suffering from a judicial “hardening of the arteries.” He wanted Congress to allow him to appoint six new justices, one for each justice over 70.

Chief Justice Charles Evans Hughes opposed the plan but soon he and Justice Owen Roberts began approving New Deal laws, including the Social Security Act and the National Labor Relations Act. The flip flop was dubbed the “switch in time that saved nine.” FDR still pushed for his justices but lost a Senate vote after the chief sponsor died after a hot July debate on the Senate floor.

The verdict of history was so final that no president has since proposed packing the court by adding multiple justices.

Today’s crisis of legitimacy is the most severe since the court’s challenge to the New Deal and FDR’s failed court-packing.

The Biden commission finds no solutions

Liberal and progressive forces, in anticipation and then reaction to Dobbs, have proposed ways to undo the Trump/McConnell court packing, which they say violated accepted constitutional norms. President Joseph Biden appointed a commission that reviewed alternatives and did not make a final recommendation in a report issued a year ago.

Law school critiques have called upon progressives to give up their long-held reliance on the Supreme Court to protect rights from abusive majorities.

Brad Snyder, a professor at Georgetown University Law Center, argued in Politico that the Warren Court had misinterpreted Marbury v. Madison and seized unconstitutional powers in enforcing civil rights decisions. He would seize the tools of conservative legislators from the Warren era to bar the court from hearing appeals on abortion, affirmative action, campaign finance, gun rights and voting rights. 

“It is not too late to put the genie of judicial supremacy back in the bottle and to return policymaking and constitutional enforcement where it belongs – with the American people and their elected representatives,” he wrote.

Samuel Moyn, a professor of history and law at Yale, agreed, arguing that, “the fact that the Supreme Court has seldom protected important rights flies in the face of the court’s self-image and contradicts a romanticized view of the institution that arose during the mid-20th century” due to Brown and Roe. Moyn too thinks Congress should use jurisdiction stripping legislation.

In an essay with Ryan D. Doerfler of Harvard, Moyn goes on to argue that the Constitution is “broken.” It should be made more “amendable,” the nation should be “packed” with more states and the role of the Senate should, as a co-equal branch, be altered. All tall orders. The professors admit that in trying to fix the broken Constitution, Congress would be “pretty much openly defying the Constitution.” For that reason, it would have to prevent the court from reviewing its fixes.

Jennifer Rubin, an influential columnist for the Washington Post, recently called for term limits on justices or adding new justices. At least, she said, there should be ethics reform, she wrote.

Congress clearly has the power to increase or decrease the number of justices on the court and to alter the court’s appellate jurisdiction. One of the proposals considered by the Biden commission would expand the court to 13 as a response to Republicans breaking with constitutional norms in their refusal to consider Garland and then quickly confirming Barrett under similar circumstances.

But history’s verdict on FDR’s court packing effort provides a roadblock to this proposal. Packing the court to bring about more favorable results, itself, undermines the court’s legitimacy and its role as a check on other branches of government and to abusive majorities.

As the Biden commission put it in a quote that Rubin left out of her column of support: “For opponents of Court packing, the historical condemnation of the 1937 Court packing plan illustrates what they regard as a fundamental principle of American constitutional government…the 1937 reform has long been regarded as one of the most disgraceful assaults on the Supreme Court in American history.”

Another proposal considered by the Biden commission was term limits for justices. But those ideas run into the language of the Constitution which states justices shall “hold their offices good behavior” – in other words for life unless they do something impeachable.

Other proposals considered by the commission included reducing the power of the Supreme Court by stripping some jurisdiction. The Constitution expressly permits Congress to determine the appellate jurisdiction of the Supreme Court – in other words, the appeals that it can hear.

Limiting the appellate jurisdiction of the Supreme Court has more often been a tool of conservatives than liberals. 

In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) withdrew the Supreme Court’s appellate jurisdiction to review decisions by the federal courts of appeals in death penality cases.

The Detainee Treatment Act of 2005 tried to strip all federal courts of jurisdiction to consider habeas corpus petitions from noncitizens detained as enemy combatants in the war on terrorism. But the Supreme Court ruled that law violated the Constitution’s provisions that limit the suspension of habeas corpus to cases of rebellion or invasion. 

The Warren Court’s decisions integrating public schools and ending mandatory state prayer in public schools led to a plethora of proposed constitutional amendments to take power away from the Supreme Court and turn it over to Congress or the states. 

“Impeach Earl Warren” billboards were erected around the country by the right-wing John Birch Society.

The Supreme Court responded emphatically to the attack on its authority in the Cooper v. Aaron decision of 1958 requiring Arkansas officials to abide by the law after the Little Rock 9 disturbances. The court cited the Constitution’s Supremacy Clause and Marbury v. Madison establishing the court “as ultimate interpreter of the Constitution.”

By the beginning of the Reagan administration, dozens of bills had been introduced to strip the courts of jurisdiction over busing, school prayer and abortion.

Biden’s commission commented: “​​As this historical overview demonstrates, debates about the proper role of the Supreme Court are as old as the Constitution.”

It’s even older, given Alexander Hamilton’s observation in Federalist 78 that “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office,” a quality he regarded as “an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.” 

The bottom line is that none of the reforms proposed by progressives and Democrats is moving forward and there is no prospect they will given the verdicts of history and the absence of a democratic majority supporting them. The major surgery they propose would raise new and different legitimacy questions.

William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.