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What Justice Kavanaugh gets wrong about abortion and neutrality

Calls for the court to remain neutral have long been tools for denying Americans rights

Justice Brett M. Kavanaugh.

During oral arguments in Jackson Women’s Health Organization v. Dobbs, the potentially historic abortion rights case the Supreme Court is now considering, Justice Brett M. Kavanaugh took pains to assert that the court should not take sides. He touted this view as if it were a moderate middle ground, claiming that because the Constitution is “neither pro-choice nor pro-life” the court’s role is to “be scrupulously neutral on the question” and “leave it to the states.”

Yet Kavanaugh seemed not to recognize that this position — that the court should stay “neutral” on an issue of equality and liberty — has a long, sordid history. The court, in fact, has rejected this claim in some of its most celebrated rulings. Kavanaugh himself touted these very decisions during the same oral argument as examples of the Supreme Court correctly overruling faulty precedents. But he ignored that these landmark decisions were only possible because the court rejected Kavanaugh’s claim that denying constitutional rights amounts to neutrality. Rather, this faux “neutrality” argument, renounced repeatedly by the court, has long been associated with the likes of segregationists and gay rights deniers.

The text of the Fourteenth Amendment is not neutral about individual rights. Instead, it explicitly protects people’s liberty and protects it equally for all people, including women and people of color. The court has relied on these principles of equal liberty for decades to prevent states from, for example, restricting access to contraception and banning interracial marriage.

In fact, the argument that the Constitution is “neutral” on questions about individual liberty and equality and that these matters should be left to the states traces back to proslavery arguments during the Civil War. After the passage of the Thirteenth, Fourteenth and Fifteenth Amendments in the years following the Civil War, pro-segregation advocates and others looking to deny fundamental rights adopted this line of reasoning as a way around the Fourteenth Amendment’s promises.

In Plessy v. Ferguson, the infamous 1896 decision upholding “separate but equal” in public spaces, without using the word explicitly, the justices adopted this “neutrality” reasoning. Some states required segregation, other states didn’t practice it, while the court remained neutral on the issue.

Segregationists wanted the court to reaffirm this posture in the pioneering Brown v. Board of Education decision. At oral argument in 1952, John Davis, the lawyer for South Carolina, quoted to the justices from Judge John Parker’s opinion in the lower court, saying that “this is a matter for the legislatures and not the courts.” He further quoted Judge Parker, saying that because “the questions thus presented are not questions of constitutional right,” the members of the court have “no more right to read their ideas of sociology” and race relations into the Constitution than they do on any other topic.

The brief from the lawyers for Kansas stressed the same theme in arguing in favor of segregation. Because segregation was not “within the purview” of the Fourteenth Amendment, the judiciary should stay out. Doing otherwise would “take from the states” the power to institute their own policy on race and schooling. In other words, segregated schools should be allowed because the Constitution takes no sides on segregation and the court should be “neutral,” leaving the issue to the states.

A unanimous court, however, rejected this argument, understanding that this pose of neutrality was a clear violation of equality principles embedded in the Fourteenth Amendment.

That did, not, however, quiet the misguided advocates of “neutrality.” Soon after Brown was decided, an influential piece of legal scholarship, “Toward Neutral Principles of constitutional Law,” used the language and arguments repeated decades later by Justice Kavanaugh to claim that Brown was wrongly decided because it was not neutral. Legal scholars have since discredited this argument with respect to Brown, because remaining neutral in response to de jure segregation is a position no one wants to be associated with today.

But that didn’t mean arguments about supposed neutrality faded away. They also featured prominently in another landmark case that changed America. In 1963, in Gideon v. Wainwright, the court required states to provide attorneys for all indigent defendants in felony cases. The justices rejected the argument put forth by Florida, which warned that the court had no power to impose “uniform rules … with respect to state court proceedings” and that it should not take sides between different “state experiment[s] in the field of criminal procedure.” According to Florida, the Constitution was neutral on the issue of whether states must provide attorneys for defendants too poor to afford them, so states should be free to decide how to proceed in this area.

Despite being on the wrong side of history in these and other important cases, the argument that “neutrality” demanded the court defer to the states on critical matters of fundamental rights and equality has remained prevalent into the 21st century, particularly in gay rights cases.

In 2003, in Lawrence v. Texas, the court struck down a Texas law criminalizing only same-sex intimacy — heterosexual couples were entitled to their privacy under the law. In that case, Alabama, South Carolina and Utah argued against same-sex sexual privacy, stating, “Under the Constitution, the States should be free to legislate in such sensitive areas as family definition, child-rearing, and sexual conduct.” Therefore, “the States should remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy.” According to these states, the court was not the place to decide whether gay people were entitled to equal protection under the law with respect to liberty in their intimate lives — despite the promises of the Fourteenth Amendment.

Opponents of gay rights trotted these arguments out again in Obergefell v. Hodges, the landmark 2015 case that found bans on same-sex marriage unconstitutional. This time it was Ohio, which wrote explicitly in its brief that the court should remain “neutral” on the issue. It urged the court to “refrain from picking sides” and to “implement this principle of neutrality” by “allowing each State to resolve marriage policy” for itself.

Ironically, Kavanaugh lauded Brown, Lawrence and Obergefell during the Dec. 1 oral argument about abortion rights when claiming the court has frequently overturned past precedents. But these cases and others, like Baker v. Carr, Miranda v. Arizona and Mapp v. Ohio, which Kavanaugh also used to argue that overturning Roe v. Wade would not be a huge departure from past practice, were all watershed cases in which the court also rejected the very neutrality argument that he floated. Instead, the court expanded the protection of individual rights by rejecting calls to be “scrupulously neutral” and to “leave it to the states.”

The truth is that arguments for “neutrality” have almost always come from states trying to deny fundamental rights to Americans. The cases like Plessy, in which the court adopted a pose of neutrality by refusing to recognize individual rights, are remembered as some of the court’s most significant mistakes. And many cases in which the court rejected neutrality arguments are viewed as momentous decisions that form the core of the sacred canon of American law.

This history reveals the truth: If the court overturns Roe v. Wade and adopts the principle of “neutrality” that has historically been a guise for denying equality and liberty, it will be rejecting the principles behind the cases that Kavanaugh cited so approvingly, and instead create a precedent that belongs in the same category as some of the court’s most reviled decisions.

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