David: The Supreme Court has issued a deluge of big rulings in recent weeks and it defines a new epic in American law. The majority on the court has dramatically limited the ability of the US government to issue environmental regulations or to limit gun ownership. At the same time, they greatly increase the power of the states to regulate a woman's right to control her own body. That decision, the Dobbs ruling ended federally guaranteed abortion rights, but within the court's majority, there were different opinions on why those rights should be abolished.
Justice Clarence Thomas joined the majority, but he also wrote a separate opinion known as a concurrence that expresses an even more conservative view of the world and the law.
Thomas's concurrence foreshadows how this newly ascendant conservative block might reshape American law. Jeannie Suk Gersen teaches constitutional law at Harvard Law School. She clerked for former justice David Suder on the Supreme court, and she's a contributor to the New Yorker.
Jeannie, you just wrote a comment on the Supreme court for the magazine. In that piece, you say the year 2022 will go down in history as a turning point when the Supreme court's conservative revolution seemed to arrive all at once. What do you mean by that, by all at once?
Jeannie Suk Gersen: Well, so what we saw over the course of a few days in late June was the conservative justices asserting their power. They've recently consolidated this power and now they're exercising it all at once. In the space of several days, what we see is the end of the right to abortion, a very significantly expanded gun right. A hole in the wall between church and state, a big one, and then curbing of the ability to fight climate change.
All of those things are happening within several days. It's like, boom, boom, boom. This is not just an incremental building of a conservative agenda. This is the announcement of the arrival of a new set of powerful players who are going to do what they're going to do, they're going to do it fast and they're going to make big moves and that's what was communicated.
David: Who is at the head of this faction or this majority? Is it no longer John Roberts? Have the politics of the court changed in a visible way?
Jeannie: Yes. John Roberts went from being one of the more conservative justices on the court when he was nominated and confirmed to now being the least conservative of the conservative majority of six conservative justices. He is no longer the power center and he has been isolated essentially. He's outflanked on his right by five conservative justices and they're acting together.
It's now I would say Alito, Justice Thomas, and then interestingly, also Justice Kavanaugh, and he gets his power specifically from the idea that he's to the left of most of his conservative colleagues. Still being in that five-justice conservative majority, but being less conservative than the others also gives Justice Kavanaugh quite a lot of power because the power of the majority is only as good as that last fifth vote.
David: Is there any way from reading those opinions, seeing who the author of the majority opinions, or knowing something about the dynamics of the court over time to tell who's leading the way or doesn't it work that way anymore?
Jeannie: I think it is often possible to tell who is leading the way. It is very clear that Justice Thomas, and he was confirmed in 1991, that's a long time that he's been on the court. For decades, he was very conservative, the most conservative on the court, and often alone in his dissents and in his opinions. He's pretty much stayed in the same place. The court has moved to the right so that now he, in my opinion, becomes a very powerful player in that five-justice majority.
He's still probably the most conservative of them, but now they're all really close to him and some of the opinions that we thought of during the earlier decades of his tenure on the court as kind of [unintelligible 00:04:34] or marginal are now going to become very serious contenders for the opinion of the majority of the court. We saw that in the second amendment decision that was issued this term, and I'm watching the affirmative action case next term where I would not be at all surprised if Justice Thomas is the author of the majority opinion in that case.
David: In effect, you're saying that he's in some ways the chief justice of the Supreme Court in an ideological political sense, if not a name.
Jeannie: He is practically because he's going to be the most senior judge of a conservative majority that does not include the chief justice. Anytime the chief justice is not with his conservative colleagues, that leaves Justice Thomas as the leader of that faction and then he gets the power to assign the opinion, and that's a really big power. He could take those opinions for himself, or he can choose the justice who will write that case.
David: Now, before we go more deeply into Justice Thomas, let's talk about the majority in Dobbs. A majority of the Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey. Can you just lay out the reasoning for the majority opinion that we've witnessed? Why did they not find a right to abortion? What was the reasoning behind this, and is it supportable?
Jeannie: As you know, the 14th amendment provides that states cannot deprive any person of life, liberty, or property without due process of law. It was on the basis of that provision that we had the right to abortion in the United States for the last 49 years. Now, justice Alito is saying that that clause and namely the word "liberty" in that clause does not include the right to abortion.
The reason is that he's saying that the original meaning of the word "liberty" in the 14th amendment doesn't include that. There are two things that are notable. One, when you're talking about liberty, that's a word that is under specified of course and so the job of the Supreme Court has been to give meaning to that concept. It's not exactly self-explanatory what liberty means, so the Supreme Court has engaged in that process of saying what liberty means.
Over time, essentially, the conservatives and the liberals on the Supreme Court, over decades have had this important debate about how to decide what liberty means. It's a methodological debate. Essentially, the conservatives have taken the position for a while that liberty has to be defined at a very low level of generality. You have to say something like, well, what is the specific writing question, or it's the right to abortion, or in the Lawrence Case in 2003, the conservative thought it's the right to sodomy, to homosexual sodomy.
The conservatives have believed that in order to give meaning to liberty, you have to look at the question in terms of the very lowest level of what the action in question would be. The liberals however have said the correct method is at a broader level of generality. It would be something more akin to liberty means the right to privacy or the right to bodily autonomy, or the right to decide for yourself in matters of family and intimacy.
It's not at that extremely specific low level. Here in Justice Alito's opinion, what we're getting is a definitive, conservative, methodological victory for defining liberty at that very low-level generality, the right to abortion. What's really significant about Dobbs is not only the result, which is there's no fundamental right to abortion but also that going forward, the correct methodology according to this conservative majority is that you have to look at things, you have to define liberty in that extremely specific and narrow way.
You have to look at what liberty means in terms of a certain set of historical sources and ones that are not going to include times when say women had the right to vote. It's not going to include, for example, the last 50 years. The past 50 years are completely erased from the idea of history and tradition that justice Alito is looking at.
David: Jeannie, that's a discussion really of the main opinion as drafted by Alito. Justice Thomas joined the majority, but he had a lot more to say about the decision. What does his concurrence say and what is its reasoning and its meaning?
Jeannie: The due process clause of the 14th amendment says that no person shall be deprived of life, liberty, or property without due process of law. What justice Thomas is saying in his concurrence, and he's been saying this for a while, is that he does not believe that there is a protection in that clause for anything other than just a certain process, that the process should be due process.
For example, no matter what kind of liberty it is, whether it's the liberty of privacy or abortion or life even, that all of that can be taken away from you by the government as long as the government gives you due process. The words due process in the clause, he would take it to mean a certain set of procedures.
If it's a criminal matter, it would be a trial, a criminal trial. If it is a civil matter where you have certain interests that are at stake, it would not be a criminal trial, but it would be other kinds of trappings of procedures that are designed to make sure that you are heard by the government before the government takes the thing away from you.
David: What is in danger now, though? In fact, what rights, recent or not so recent are now hanging in the balance?
Jeannie: In addition to the abortion right, he would also do away with the other rights that the Supreme Court has found to be a liberty protected by the clause. Those include the right to contraception and the right to same-sex intimacy and the right to same-sex marriage.
David: What about Loving v. Virginia, which is the case that established the legality of interracial marriage partially built on due process? I'm not trying to score a cheap point here because of the Thomas marriage, but this seems to be another case that would hang in the balance, at least theoretically.
Jeannie: I'm quite sure that he thought of that when listing the cases that are now under threat and omitting Loving v. Virginia. I'm quite sure that what he would say is that Loving v. Virginia was primarily based on the equal protection clause of the 14th amendment. To the extent that there was due process reasoning, in that case, that would've been an alternative ground for the decision.
I'm pretty sure that's how he would distinguish it and say that Loving is not necessarily threatened because we have this alternative ground, the equal protection clause because the Supreme Court said that banning interracial marriage was built on white supremacy as a concept and that, that was the only possible reason for banning interracial marriage. Therefore, it violated equal protection of the laws.
David: Some progressives argue that Justice Thomas is just saying the quiet part out loud. How seriously do you take the idea that his opinion legitimately puts the right to privacy at risk?
Jeannie: He's saying the quiet part out loud, but we have to remember, he's been saying it out loud for quite some time. This is not a new thing from Justice Thomas. It's just that we normally over decades didn't pay that much attention to him because he was just alone in his dissents and concurrences when he would say this stuff. Now, the question is, is this still a one-off or single person's opinion that doesn't have any sway? I don't think so, mainly because if you look at the logic of the majority opinion in Dobbs, Justice Thomas is right conceptually and logically that the reasoning of the majority is going to go there if you are actually consistent about applying the majority's reasoning.
It would require a lot of inconsistency on the part of the Supreme Court to later say, "Oh no, we're going to stop only at abortion." Given their education, their nurturing within the conservative legal movement, it would've been bizarre at this point in time to have this set of justices on the court and not expect them to overule Roe v. Wade. This has been like a 50-year journey in which a whole generation of lawyers have been educated, have been brought up on the idea that Roe was egregiously wrong and that a Supreme Court had really gone off the rails with Roe. It's almost like asking people to really reject their core tenants.
David: We're already seeing a great deal of political maneuvering in the post-Dobbs world. You're seeing the president of the United States talking about what may or may not happen in a legislative sense, about what could be done about the filibuster. We're hearing about the potential limitation of a person's right to travel for an out-of-state abortion. Is there such a right to interstate travel? How do you see the post-Dobbs political world shaping up where abortion is concerned in the months to come?
Jeannie: On the right to interstate travel. The question is, can the state actually criminalize the travel to another state, or can the state, in fact, criminalize the provision of abortion by providers who are out of state for the residents of the abortion-banning state, those are two separate questions that are implicated here. Certainly, we know that states are going to try both. Justice Kavanaugh said in his separate concurring opinion, that states can't do that because it violates the right of citizens to travel interstate.
By that, I think he's talking about the privileges and immunities clause of the 14th amendment. That's the clause that provides that a state cannot abridge the privileges or immunities of the citizens of the United States. That has been interpreted by the court to include the right of interstate travel, but there is a way around it, of course, for the court to say, "Well, it means only interstate travel for lawful purposes and here, it's not for a lawful purpose if what you're doing is having an abortion, which is criminal in your state."
David: If it's legal in the other state?
Jeannie: Yes. Well, this is a question.
David: It's not like you're crossing state lines to commit larceny.
Jeannie: I think that this is the argument that you're going to see being made in the courts, David and that will be your primary argument that you're not going out of state to commit a crime in that state. You're going out of state to commit a crime that is a crime in your state. What status does that have?
David: If marijuana is not legal in the state I live in and I go to California where it is, and I smoke weed in California, have I committed a crime?
Jeannie: You haven't committed a crime in the state of California, but if the legislature then makes a crime in your state to travel out of state for the purposes, [crosstalk] of having an abortion then you have committed a crime in your state. The question will be, will such a law be unconstitutional under the privileges and immunities clause. Justice Kavanaugh in his separate concurrence made clear that at least for himself, that he's speaking for himself, that he believes that it is not constitutional to criminalize traveling out of state for an abortion. He made that clear.
One could take some amount of comfort in that, but at the same time, we know that there's not a whole lot of case law coming out of the Supreme Court on the privileges or immunities clause. We know that there are five other conservative justices. Once this gets litigated in the courts, because certainly states will try this, they will try to criminalize travel out of state. I don't think we have a good way of predicting exactly how it's going to come out because we have the possibility that other justices will not see it that way.
David: I want to ask a question also related to the immediate fallout from this post-Dobbs world and what Justice Thomas is raising in his concurrence. Do you think we'll see Democrats try to codify in a legislative sense, the right to gay marriage and gay intimacy and contraception?
Jeannie: I think that they can. I think that there will be lots of efforts in the states to shore up those rights. At the end of the day, we are, again, just like in the abortion context, talking about the difference between states that willingly with the support of their democratic majorities want to guarantee those rights and other states where the support may not be there for those rights. Then the question will become, does the federal constitution require states to provide protections for those rights?
Under current law, the answer is yes, but under a future Supreme Court decision, the answer may become no. In the states that you would worry about where those protections would be under threat right now. Often, you've got a Republican-dominated legislature and you've got Republican-dominated state courts. That state constitutional claims might be rejected because states are allowed to provide more protection to its citizens than the federal constitution provides.
David: I think it might be fair to say, tell me if I'm wrong, remembering back to when Justice Thomas was nominated and then the intense drama of his confirmation hearings, that was followed by Justice Thomas hardly saying a word from the bench. He was famous almost for his years of silence from the bench.
He would not ask questions very often, at all, and his vote was pretty expectable but one never really expected this. That there would be a conservative legal revolution that would then be supported by and supplied by the Trump Revolution and have Justice Thomas be in effect the Chief Justice of the United States.
Jeannie: I never would've seen it coming and even a year ago, David, I admit, I did not think the Supreme Court was going to do this as an overrule Roe v. Wade mainly because I thought no matter what your conservative ideology or legal conservative judicial philosophy would provide that there's a certain amount of social stability that the Supreme Court justices would be invested in. I really didn't see them doing this. I didn't think they would do this until December when I heard their comments at this oral argument.
David: Does that adjust your view of what's possible in the future?
Jeannie: It certainly does because are we going to hang by a thread on the pronouncements of Justice Kavanaugh that he's not going to provide the fifth vote for certain more extreme results like overruling the right to contraception or the right to same-sex marriage or allowing states to criminalize interstate travel for abortion? That's pretty much what he said explicitly in his concurrence, almost like telling us, "Don't worry, I am here to stop those things from happening because they need my vote in order to go there." At this point, I don't think that Supreme Court norms as well as norms in politics and norms in legislature, all of these norms are up for grabs.
David: Jeannie Suk Gersen, thank you so much.
Jeannie: Thank you
David: Jeannie Suk Gersen is a professor of law at Harvard Law School and she's been writing for the New Yorker about the end of Roe V. Wade.
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