WASHINGTON (CN) — Roe v. Wade took a back seat at Supreme Court confirmation hearings for Judge Ketanji Brown Jackson as Republican senators questioned other unenumerated rights that legal experts warn could be next on the chopping block.
“Do you see that when the Supreme Court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably set a conflict between those who ascribe to the Supreme Court's edict and those who have a firmly held religious belief that marriage is between a man and a woman?” Texas Republican Senator John Cornyn asked Jackson during her confirmation hearings this week.
Cornyn was referencing the Supreme Court’s 2015 holding in Obergefell v. Hodges that the 14th Amendment requires states to license and recognize same-sex marriage.
Louisiana Republican Senator John Kennedy also asked Jackson about Obergefell. The point Cornyn and Kennedy were trying to make in their questioning of Jackson around this precedent is that the Supreme Court “made up” this right. The senators take issue with the creation of unenumerated rights by substantive due process — the principle allowing courts to protect fundamental rights from government interference.
“Can you understand why some Americans go, wait a minute, these are unenumerated rights, are justices interpreting the Constitution or are they just deciding a right when they get five votes and it’s just a moral conviction,” Kenney said.
Many Supreme Court precedents have relied on the due process clause of the 14th Amendment, including the right to abortion in Roe, legalization of same-sex marriage in Obergefell, right to birth control in Griswold v. Connecticut, and the criminalization of anti-sodomy laws in Lawrence v. Texas.
The criticism over the due process clause within the 14th Amendment is not new but conservatives took a particular interest in this issue because of its connection to abortion.
“These are all cases that rely on what's called substantive due process, the idea that the due process clause in the 14th Amendment protects certain types of liberty: contraceptives, sodomy, abortion, gay marriage, and so on,” Josh Blackman, a constitutional law professor at the South Texas College of Law, said in a phone call. “So for the longest time conservatives have been opposed to substantive due process, in large part because of abortion. They're very closely linked.”
One of the arguments against recognizing fundamental rights that are derived from the 14th Amendment is that they don’t exist in the text so they can’t be recognized rights.
“Conservatives are taking the position that the protection of fundamental rights that are not enumerated somewhere within the Constitution's four corners is illegitimate,” David H. Gans, director of the human rights, civil rights and citizenship program at the Constitutional Accountability Center, said in a phone call.
This is a key argument made against the right to abortion. It follows the logic that if the word "abortion" isn’t in the Constitution, then it can’t be recognized as a fundamental right and therefore states can decide how they want to regulate it. In his questioning of Jackson, Cornyn asked, “Marriage is not in the Constitution, is it?”
However, legal experts point out that many rights the Supreme Court has recognized are inferred and do not exist within the Constitution's text.
“Of course, we know that the word ‘marriage’ does not appear in the Constitution, but neither do the words ‘public education’ and we certainly don't want to go down the road of challenging Brown v. Board of Education,” Miranda Yaver, a politics professor at Oberlin College, said in a phone call. “There are a lot of rights that are not enumerated in the Constitution, we infer rights.”
Senators like Kennedy and Cornyn and other critics of substantive due process argue that inferring rights equates to creating policy, which is not the job of the court but instead Congress. When asked about this, Jackson said the Supreme Court can’t always just rely on the text of the Constitution.
“The Supreme Court interprets provisions of the Constitution, and there are provisions of the Constitution that require interpretation because they don't just, on the text, in every circumstance, answer the question before the court, so due process,” Jackson said.
She continued, “The words 'due process' do appear in the text of the Constitution.”
The context behind these questions is that Roe is being directly challenged before the high court in the case Dobbs v. Jackson Women's Health Organization and there’s a good chance it might be overturned. With Roe on shaky ground, some legal experts say other rights based on the same principles could also be at risk.
“There's a frontal challenge to what is essentially a century of Supreme Court precedents that recognize that the 14th Amendment protects fundamental rights, including ones that aren't specifically mentioned in the Constitution's text,” Gans said.
Senators’ questions to Jackson are not the first sign of this. In the challenge to Roe before the court, some groups specifically point to Lawrence and Obergefell as being as “lawless as Roe,” and said the court should not hesitate to write an opinion that “leaves those decisions hanging by a thread.”
“The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage,” Jonathan Mitchell, an attorney with Mitchell Law, wrote in an amicus brief for Texas Right to Life. “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”
Experts say senators’ questions this week concerning the right to same-sex marriage point to what could be expected in a post-Roe world.
“The attacks on the right to abortion that we've seen before the court this term that is now sort of awaiting the decision in Dobbs will not be the end of the story,” Gans said. “We’ll continue to see efforts to roll back fundamental rights the court has been protecting for the last century, particularly fundamental rights to marry as well as rights to access contraceptives, which were two sets of rights that came under criticism from conservative senators this week.”
While warning that the challenge to Roe puts these precedents at risk, experts also say cases like Griswold and Obergefell being challenged before the court is not an absolute certainty.
Follow @KelseyReichmann
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