The Rule for Rights, Rewritten

Guest Blogger

Joseph Blass

A few weeks ago I wrote that Justice Alito’s leaked draft opinion in Dobbs changed the test courts use to determine whether an unenumerated right is protected under the doctrine of Substantive Due Process. Where previously, I wrote, Substantive Due Process protected rights that are “fundamental to our scheme of ordered liberty, or deeply rooted in this Nation’s history and tradition” (Timbs v. Indiana), Justice Alito’s opinion would only protect those rights that are “fundamental to our scheme of ordered liberty and deeply rooted in this Nation’s history and tradition” (emphasis added and internal quotations and citations omitted throughout).

Well, the decision in Dobbs has been released, and Justice Alito’s opinion for the majority is largely the same as the leaked draft opinion. But in a new Section responding to the joint dissent by Justices Breyer, Kagan, and Sotomayor, the majority opinion goes a step further. “[T]he established method of substantive-due-process analysis,” it declares, “requires that an unenumerated right be deeply rooted in this Nation’s history and tradition before it can be recognized as a component of the ‘liberty’ protected in the Due Process clause. . . . The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.” That is: there will be no need to ask whether a right is fundamental to ordered liberty when we cannot find historical evidence for it in American tradition, because that is enough to complete the constitutional inquiry.

In their dissent, Justices Breyer, Kagan, and Sotomayor note the dangers of this new standard. “The lone rationale for what the majority does today,” they say, “is that the right to elect an abortion is not deeply rooted in history . . . . The same could be said, though, of most of the rights the majority claims it is not tampering with,” such as the rights to use contraception, to engage in same-sex sexual behavior, or to marry a same-sex partner.  If the Constitution only protects unenumerated rights that are grounded in American historical tradition, then “all rights that have no history stretching back to the mid-19th century are insecure.”

The hypothetical has become concrete. The dissenting Justices are not alone in fearing that Dobbs will lay the groundwork for further restrictions of Americans’ rights.