Republicans won’t be satisfied with overturning Roe
Ketanji Brown Jackson’s hearing offered a glimpse of upcoming culture war fights at the court
Perspective by Melissa Murray
Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University.
March 25, 2022 at 7:20 a.m. EDT
For more than two decades, confirmation hearings for Supreme Court justices have revolved around a single question: whether the nominee would uphold or overrule Roe v. Wade, the landmark 1973 decision that recognized nationally a woman’s right to choose an abortion. As far back as the ill-fated confirmation hearings for Robert Bork in 1987, abortion has always been the elephant in the room, prompting thinly veiled questions about fidelity to precedent and “unenumerated rights” — rights not explicitly mentioned in the Constitution.
With this in mind, the hearings for Judge Ketanji Brown Jackson were unlike those that came before. Not only is Jackson the first Black woman to be nominated to the high court, but she is also the first nominee to be vetted in a soon-to-be post-Roe landscape. Pending on the high court’s docket is a challenge to a Mississippi law that bans abortion at 15 weeks — a case that is widely expected to mark the end of legal abortion nationally. Nevertheless, between their grandstanding about critical race theory and ludicrous allegations about Jackson’s sentencing of sex offenders, Republicans continued to pelt her with questions about unenumerated and “judge-made” rights.
What explains the GOP’s almost-obsessive focus on unenumerated rights, given Roe’s possible demise in just a few months? Critically, the reach of these unenumerated rights are not limited to abortion. Since 1923, the Supreme Court has recognized a range of rights that are not explicitly articulated in the Constitution’s text. These include the right of parents to raise their children in the manner of their choosing, the right to procreate, the right to use contraception, and the right to marry the person of your choice. The constitutional protections for intimate life that we take for granted proceed from the court’s recognition of rights that are implied from, but not explicit in, the Constitution’s guarantee of liberty.
In focusing on these rights, Republican senators are giving us a glimpse of the culture war clashes to come. There are already warning signs — including the Texas directive that prohibits parents from legally providing gender-affirming treatment and therapies to their children, as well as various state officials’ questioning whether the Constitution sanctions contraceptive use. Indeed, some Republican senators have gestured toward these future conflicts. In his questions to Jackson, Sen. John Cornyn (R-Tex.) repeatedly sought her views of Obergefell v. Hodges, the court’s 2015 decision legalizing same-sex marriage, pressing her as to whether the decision was properly decided. Sen. Marsha Blackburn (R-Tenn.) took her turn at the microphone to criticizeGriswold v. Connecticut, the 1965 case that legalized contraception use. It’s not a stretch to imagine this revisionism extending to Loving v. Virginia, the ruling that legalized interracial marriage. A Republican senator recently said he was open to overturning that ruling. He later walked back his comments.
All this underscores that abortion was never the conservatives’ endgame. It is merely a way station on the path to rolling back a wide range of rights — the rights that scaffold the most intimate aspects of our lives and protect the liberty and equality of marginalized groups.
The timing could not be more ironic. The advent of the first Black woman on the court will probably coincide with a battle to overturn some of the very gains that made her historic ascent — and indeed, much of her life — possible. Jackson came of age in the wake of Griswold, Roe and the “privacy revolution” these decisions spearheaded. Indeed, the image of her husband, Patrick, sitting behind her wiping away proud tears, is a poignant reminder of the real-life impact of the court’s decision in Loving v. Virginia. As Sen. Cory Booker (D-N.J.) reminded his colleagues on Wednesday, the Jacksons’ marriage would have been impossible only a generation ago.
And perhaps that is the point. As we make one step forward, forces are coalescing to ensure that we take two steps back. And, based on her measured, steady performance this week, Justice Jackson will have a front-row seat for all of it.
When pressed about her views of unenumerated rights this week, Jackson insisted that she would follow the court’s precedents. In so doing, she was modeling those who came before her, including those in the court’s conservative wing. In his 2005 hearings, then-Judge Samuel Alito assured the committee that he, too, would uphold past precedents, noting that the principle of stare decisis, which requires courts to follow past decisions unless compelling reasons warrant a departure, is “important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.” Likewise, before his 2018 hearings went off the rails with allegations of sexual assault, then-Judge Brett Kavanaugh agreed, in the face of skeptical glares from pro-choice protesters clad in red handmaiden robes, that Roe and another abortion ruling, Planned Parenthood v. Casey, were binding precedents that justices were obliged to follow.
Despite these assurances, since taking their seats as justices, both Alito and Kavanaugh have voted to limit abortion rights. At the December oral arguments in the Mississippi challenge, both Alito and Kavanaugh signaled where they stood on the question of upholding the right to abortion. Alito likened Roe to Plessy v. Ferguson, the infamous decisionthat enshrined the principle of separate but equal until it was overruled by 1954’s Brown v. Board of Education. Kavanaugh mused that overruling Roe and Casey would merely return the question of abortion to the states — a “neutral” settlement of a divisive issue.
The disjunction between the nominees’ assurances at their confirmation hearings and their work as justices should not be surprising. Both Alito and Kavanaugh are products of a conservative legal movement that has railed against “unenumerated rights” and has insisted upon the primacy of “text-based” protections for religious liberty and gun rights. When she joins the court as a justice, Jackson will be part of a hobbled liberal bloc that lacks sufficient votes to stem the rising conservative tide.
The Republican senators’ questions reflect the conservative sensibilities that have shaped the court and will undoubtedly shape the post-Roe landscape in the coming years. As the sun sets on Roe, the senators’ dogged emphasis on unenumerated rights should worry us. Rather than resting on their laurels, the conservatives are gathering their resolve. And the next set of battles will determine whether we as individuals will be permitted to control the most intimate aspects of our lives.