Gender and the Law Blog

SCOTUS Unwed Parents Cases Retain Anachronistic Gendered Hierarchies as a Matter of Constitutional Law

Albertina Antognini, Unwed Parents: The Limits of Constitution, 35 J. Am. Acad. Matrim. Law. 425 (2023)

As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. In constitutional terms, while equality and due process considerations have forged an increasingly open and equal marital relation, these gains have largely been limited to marriage. The Constitution has failed to reform nonmarriage in similar ways and, as a consequence, it continues to contain “stunningly anachronistic” laws and principles.

 

Nonmarriage is by definition broad, encompassing the many activities and statuses that take place outside of marriage. The nonmarital cases this essay addresses involve unwed parents, which constitute a small but important slice of the legal issues that arise in the nonmarital domain. The Supreme Court has had occasion to interpret the Constitution's applicability to nonmarriage in a series of cases addressing unwed fathers; these decisions range from considering whether notice ought to be provided to an unwed father as a constitutional matter before placing his biological child for adoption, to whether disparate requirements for unwed fathers and unwed mothers in transmitting citizenship violate equal protection. Throughout, the Court has repeatedly upheld dissimilar treatment where it finds the existence of “real” differences between men and women. Reasoning from the “fact of conception” and “proof” of paternity, the Court has consistently concluded that men and women are not “similarly situated” when it comes to their roles as mothers and fathers. These facts that purportedly distinguish mothers from fathers as a general matter, gain legal significance only outside of the status of marriage.

 

The most recent of the unwed fathers cases, decided in 2017, is Sessions v. Morales-Santana. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children. The decision has been lauded for eliminating one of the few remaining facial sex-based distinctions, and criticized for the remedy it issued in response. This essay does neither. Instead, it argues that Morales-Santana signals a clear break from the unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. This essay engages in a close reading of Morales-Santana to show exactly how the Court exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day.

 

To be sure, analyzing the Court's reasoning is not necessarily important as a matter of predicting what the Court will do in future cases addressing the constitutional rights of nonmarital families - that has been largely pre-determined by the Court's most recent appointees. The opinion is also, in many ways, dated, part of a different legal landscape, one in which women and pregnant persons had more rights - to equality, to dignity, to bodily autonomy. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions. The nonmarital cases exist in the register of indisputable observation, yet they are based on archaic beliefs about the abilities of men and women that reflect, and continue to reproduce, gender inequality

The Limited Effect of SCOTUS' Decision in Sessions v. Morales-Santana Five Years Later

John Vlahoplus, Sessions v. Morales-Santana, Five Years On, Charleston Law Review (Forthcoming)

The Supreme Court’s 2017 decision in Sessions v. Morales-Santana was a landmark victory for equality over congressional power. For the first time the Court invoked equal protection principles to invalidate a citizenship statute despite Congress’s near-plenary power over immigration and naturalization. The Court’s remedy disappointed Morales-Santana, however. Rather than level up by recognizing that he acquired derivative citizenship as of birth from his unwed citizen father, the Court leveled down by striking a more favorable rule granting derivative citizenship at birth to children of unwed citizen mothers. Commentators recognized that the Court’s brief opinion left many questions open and that only subsequent developments would reveal whether or how it might affect equal protection and plenary power doctrines.

This essay examines the first five years of developments. It shows that Morales-Santana has had a significant but limited impact. Courts have relied on it to level up in citizenship litigation, to adjudicate claims of post-natal citizenship, and to secure some rights of non-traditional families and family members. Nevertheless, the majority’s insistence that contemporary evaluation governs equal protection analysis has not informed the development of gender-based equal protection more broadly. Courts continue to accept older precedents and rationalizations of gender discrimination at face value. An equal protection principle strong enough to defeat congressional power in an area as important as citizenship has failed to eliminate gender discrimination in other important areas like parental rights.

The essay also analyzes constitutional issues relating to citizenship and plenary power that the majority opinion glosses over, outlines defenses against potential circumvention, and identifies areas for further development that remain despite—or perhaps because of—the majority opinion’s theoretical uncertainties. How courts will continue to apply the decision in citizenship, immigration, and other cases remains to be seen.

Dobbs, Plessy, and the New Jane Crow

Evan D. Bernick, Dobbs, Plessy, and the Constitution of the New Jane Crow,  Northern Illinois U. Law Rev. (2023)

Women and girls enter U.S. jails and prisons every year. Nearly a million are on probation, parole, or pretrial release. This carceral control is unevenly distributed, being primarily exercised over poor women of color. And it is growing. These realities are part of what has been conceptualized as “the New Jane Crow.”

This Essay contends that Dobbs v. Jackson Women’s Health Org. gives the New Jane Crow the U.S. Supreme Court’s constitutional blessing. In justifying its decision to overrule Roe v. Wade and hold that the Fourteenth Amendment does not protect the right to terminate a pregnancy, Dobbs invokes Plessy v. Ferguson and its overruling by Brown v. Board of Education. The profound evil of Plessy’s constitutional endorsement of “separate but equal” railcars and its legitimation of Jim Crow segregation is said to illustrate the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes.

Part I provides an overview of the New Jane Crow, tracing the genealogy of the phrase and describing the phenomenon that it names. Though provocative, I argue that the phrase fits the phenomenon, given substantive and functional continuities between state control of female reproduction past and present. Part II describes how Dobbs constitutionally legitimates key components of the New Jane Crow and encourages its expansion.

Part III analogizes Dobbs to Plessy in three respects. First, in its disregard of relevant history. Second, in its lack of attention to present socioeconomic realities. Third, in its capacity to provide constitutional legitimation to an entire political-economic order that perpetuates racialized and gendered subordination.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Justice Alito's Contempt as Seen in the Abortion Pill Dissent

Jennifer Rubin, Washington Post, Opinion, The Supreme Court Delivers a Sign of Relief -- and an Outrageous Dissent

Amy Davidson Sorkin, What's Going on With Samuel Alito?, New Yorker

How many people and organizations can Justice Samuel Alito accuse of having bad will or dishonest motives in a short dissent—fewer than nine hundred words—to a Supreme Court order granting a stay? Let’s try to count.

As a preface, the case involves a lawsuit brought by the Alliance for Hippocratic Medicine, an advocacy group whose members vow, “in the presence of the Almighty,” that they “will not help a woman obtain an abortion.” The A.H.M. is attempting to block access to mifepristone, or RU-486, a drug used in medication abortions, in a suit against the Food and Drug Administration, which was joined in the case by a manufacturer of the drug, Danco Laboratories. ***

Even beyond this case, there is something troubling and unsettling about Alito’s tone and approach. As I’ve written before, observers of the Court have come to expect notes of scornfulness in Alito’s opinions. He may not be the most conservative of his colleagues—Thomas is another contender—but he’s looking like the Court’s sourest Justice. His approach to legal argument is a sad reflection of the state of political discourse generally, as well as a contributor to it. Contempt is a guiding principle of what might now, with a right-wing super-majority, be called the Alito Court—at least until Alito turns on the rest of his colleagues, too

The Supreme Court's Gaslight Docket and the Anti-Equality Effects

Kyle Velte, The Supreme Court's Gaslight Docket, Temple L. Rev. (forthcoming) 

The U.S. Supreme Court’s new conservative supermajority is gaslighting the American public. This article take a systematic look at key cases from the Court’s October Term 2021 through the lens of gaslighting. It describes these case as being part of what it dubs the Court’s “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court’s recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has become to subject of academic and theoretical inquiry. This article identifies gaslighting in the Court’s civil rights cases in both oral arguments and written decisions. It reveals that this gaslighting is trans-substantive, spanning cases involving voting rights, race discrimination/affirmative action, reproductive rights, LGBTQ rights, and the First Amendment’s religion clauses.

Because gaslighting has epistemic dimensions — knowledge production and gaslighting are connected — gaslighters instill epistemic doubt in their victims as a way to have the gaslighter’s production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower” — indeed, it is given the position of ultimate “knower” of the meaning and application of the U.S. Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and anti-democratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalism movement, declaring that those interests are not co-equal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalism ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

Understanding the Supreme Court's Past Balanced Approach to Abortion

Carlos A. Ball, Balancing Abortion, 63 Santa Clara L.Rev. (forthcoming)  

Critics of Roe v. Wade and its progeny repeatedly contended that, in recognizing a fundamental right to choose an abortion, the Supreme Court ignored or significantly undervalued the state’s interests in regulating abortions. This Article’s examination of the Court’s abortion jurisprudence during the Roe era, however, shows how it called for a meaningful balancing of the interests of both sides in ways that led the justices to uphold roughly as many abortion laws as they struck down between 1973 and 2020. In exploring the crucial role that the balancing of the interests of both the state and pregnant individuals played in the Roe constitutional regime, the Article contends that the Court deserves more credit than it received for attempting, for decades, to accommodate the claimed interests of both sides while trying to find compromises on abortion-related questions that are deeply contested and controversial. The Article also examines why neither the antiabortion nor the pro-choice movement believed it advanced its political and legal priorities to emphasize and praise the fundamental role that the balancing of interests of both sides played in Roe and its progeny.

A well-informed understanding of this crucial aspect of the Roe constitutional regime is essential because it provides a stark contrast to the one-sided and uncompromising weighing-of-interests approach followed by the five-justice majority in Dobbs v. Jackson Women’s Health Organization. In overturning Roe, the Dobbs Court deemed the state’s claimed interests in regulating abortions to be constitutionally dispositive and the pregnant individual’s equality and liberty interests in choosing an abortion to be constitutionally irrelevant. In doing so, the Court did not avoid, as it apparently hoped, the need to balance interests; instead, Dobbs engaged in its own form of ex-ante or categorical balancing by reasoning that the state’s claimed interest in protecting fetal life is so important and so impacted by the decision to have an abortion that it requires that all future courts give the equality and liberty interests of pregnant individuals in not being forced to carry pregnancies to term against their will a constitutional value of precisely zero. Although the Dobbs Court may have believed that it was, in the name of judicial restraint, dispensing with the need to balance the interests of both sides, the Article explains why it is not possible to decide the constitutionality of abortion bans such as the one at issue in Dobbs without pitting the claimed interests of the state against those of pregnant individuals after assigning constitutional weight (even if it is only zero) to them.

Gendered Interruptions at Supreme Court Oral Argument and the Role of the Chief Judge

Tonja Jacobi & Matthew Sag, Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice, 103 Boston U. Law Review (2023)

 Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices has improved in recent years, and whether the structural change in argument has helped. It shows that interruptions went down during the pandemic but have resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for the first time in years it no longer shows any gender disparity. Thus, the structural change to oral argument has had mixed results.

The problem of gendered interruptions at Supreme Court oral argument has led to calls for the Chief Justice to take a more active role at oral argument. This Article also addresses whether and how Chief Justice Roberts has responded to this call. It shows that the Chief has been intervening more, not in response to the increasing number of interruptions, but in response to the gender disparity growing more severe. Further, he has directed his interventions at supporting those most interrupted, disrupting those making the most interruptions, and, significantly, using his interventions to recognize and combat interruptions of the female Justices. When it comes to interruptions at the Court, the Chief Justice is no longer simply the first among equals but has a new role, as a referee, attempting to address a social and institutional problem.

The Hidden Framework of a Punishment Lens in the Supreme Court's Approach to Public Values

June Carbone & Naomi Cahn, The Court’s Morality Play: The Punishment Lens, Sex, and Abortion, Southern California Law Review (forthcoming)  

The Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped – and will continue to shape – the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, gay sex, Medicaid expansion, or pretrial detention.

The Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish, even if that means redefining a sanction as not punitive. By making visible this framework, we offer the Court and the states a potential off-ramp from the continuation of an ugly and litigious future on abortion access. If the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way to do so would be to take seriously the statement that all it has to do is to return the issue to the states. In that case, the Court’s focus should be, as Justice Kavanaugh suggested in his concurrence, on the impermissibility of punishment that infringes on established rights, independent of a right to abortion, such as the right to travel, the First Amendment right to communicate accurate information about abortion availability, or doctors’ efforts to perform therapeutic abortions necessary to preserve a pregnant person’s health. The Court would not pass judgment on the permissibility of abortion, and it could affirm the propriety of state bans, but still strike down heavy-handed prosecutions and ill-defined prohibitions that impose undue penalties.

After Dobbs v. Jackson Women’s Health Organization, this Article is particularly important for three reasons. First, the Article examines the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. Second, a focus on punishment often illuminates the “dark side” of government action, justifying limits on such actions. Third, a focus on “punishment” often illustrates the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities. Understanding how the Court has used this elusive concept in the past may thus help shape the response to Dobbs.

New Book The Jurisprudential Legacy of Justice Ruth Bader Ginsburg

I was happy to contribute a chapter to this new book, The Jurisprudential Legacy of Justice Ruth Bader Ginsburg (Ryan Vacca & Ann Bartow, eds. NYU Press 2023).  

My chapter "Justice Ginsburg's Restrained Theory of Remedial Equity" reveals RBG's surprisingly moderate approach to equitable remedies in gender discrimination cases and in restitution more generally.  I suggest her proceduralist view of the courts, and focus on government action account for her growing moderation over the years.

Table of Contents

1 Gender and the Law: Revisiting the Legacy of a Feminist Icon, Deborah L. Brake

2 Administrative Law: The Feminist State(s) of Ruth Bader Ginsburg, Kali Murray

3 Arbitration: Consent, Not Coercion, Jill I. Gross

4 Bankruptcy: The Scholar, the Harmonizer, and the Institutionalist, Mary Jo Wriggins

5 Citizenship and Immigration Law: Through her Opinions, M. Isabel Medina

6 Civil Procedure: The Institutional Pragmatist, Elizabeth G. Porter & Heather Elliott

7 Copyright Law: Never Bet Against the House...or Senate, Ryan Vacca & Ann Bartow

8 Criminal Procedure: Honoring the Spirit of Their Rights, Melissa L. Breger

9 Death Penalty: Precise Analysis but Broad Concerns, Jeffrey L. Kirchmeier

10 Employee Retirement Income Security Act (ERISA): Toward a Reasonable and Coherent Framework, Maria C. O'Brien

11 Employment Discrimination: Justice Ginsburg Dissents, Sandra F. Sperino

12 Environmental Law: Justice Ruth Bader Ginsburg's Principled Legacy, Uma Outka

13 Family Law: The Egalitarian Family, Joanna L. Grossman

14 Freedom of Express: A Practical Evolution, Dr. JoAnne Sweeny

15 Health Law: Equity is Inextricably Linked to Health Care, Tara Sklar & Kirin Goff

16 Parent Law: A Reliable Compass, W. Keith Robinson

17 Race and the Law: Vinay Harpalani & Jeffrey D. Hoagland

18 Remedies: Justice Ginsburg's Restrained Theory of Remedial Equity, Tracy Thomas

19 Taxation: The Litigator, the Judge, the Justice, Patricia A. Cain & Jean C. Love

20 Voting Rights: Democracy in a Hurricane, Lisa Marshall Manheim

21 Teaching the Life and Law of RBG: Exploring Beyond Her Sex Equality Jurisprudence, Elizabeth Kukura & David S. Cohen

Also available on Amazon.  

Situating Dobbs in Constitutional Memory and Other Contexts Where Women's Rights Have Been Retracted

Paula Monopoli, Situating Dobbs, 14 ConLawNOW 45 (2023)

This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been more likely to erase or erode a legal or constitutional right that has a disproportionately positive effect on women’s lives. By adopting a broader view of constitutional history, advocates can more effectively respond to Dobbs’ implications for reproductive self-determination.