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Alito’s disingenuous assurances about other precedents


Law professor Dale Carpenter — a self-described libertarian-leaning conservative who has been at the forefront of the legal battles to secure a right to same-sex marriage — has a piece over at Volokh on how we shouldn’t worry our pretty little heads about that right, or the right not to have same-sex sexual relations criminalized, or the right to purchase contraception.

The gist of his argument is that Sam Alito put no less than four passages in his Dobbs majority opinion disclaiming that overruling Roe had any necessary salience to overruling Griswold (contraception), Lawrence (same-sex sexual activity), or Obergefell (same sex marriage). Two of these passages were inserted into the final draft of the opinion and didn’t appear in the leaked version.

Andrew Sullivan of course thinks this is all wonderful, since the only people being affected directly by Dobbs are women.

Leaving aside that I wouldn’t give credence to Alito’s assurances about literally any subject under the sun, given that he’s a Federalist Society judicial replicant, aka a smarmy liar, Carpenter’s analysis of the matter is painfully jejune:

It is true, as both Justice Thomas and the dissent point out, that rights to contraception, sexual intimacy, and same-sex marriage do not fit easily within the Court’s narrow history-and-tradition methodology. That might spell longer-term trouble under a different cast of Justices who may not feel as much obligation to ancestral precedents.

Does Dale Carpenter play Texas Hold ‘Em? Because I might have to fly down to Dallas just to sit in on a game. Note that these “ancestral precedents,” are, in two of the three cases, quite a bit less ancestral than Roe (Obergefell is seven old!).

At least Carpenter sort of admits that the underlying interpretive methodology that led to overturning Roe is totally inconsistent with upholding any of these other precedents, although he tries to soft-pedal this shall we say rather critical point.

In fact that notion that a right to gay marriage is somehow better established in American jurisprudence than a right to abortion is simply farcical on its face: abortion has been around for pretty much all of recorded history, while gay marriage is a concept that barely even existed a generation ago. Thus do we see the enormous power of wishful thinking among conservative gay pundits like Carpenter and Sullivan.

Carpenter’s other efforts to treat Alito’s analogies as sound and worthy of respect are no more successful:

Further, to the extent new rights can be recognized (or old rights can be recognized in new contexts), we do so by analogy.  But there is no analogy close to the abortion right, which is sui generis.  Under this view, the right to same-sex marriage (Obergefell) is at least adjacent to the recognized right to marry (Loving) in a way that the right to end a pregnancy (Roe) is not adjacent to the recognized right to prevent a pregnancy (Griswold).

Someone explain to me how this makes any sense even on its face. The right to end a pregnancy is not “adjacent” to the right to prevent a pregnancy? If abortion is supposedly different because it ends an at least potential life, how in the world is successful prevention of pregnancy also not ending potential life? (The supposed inaptness of this analogy would come as a total shock to the Roman Catholic Church, which is not exactly an obscure or powerless institution, especially given that most of the SCOTUS is at least nominally Catholic).

But again, the key point here is that there is simply no possible way that Griswold, Lawrence, and Obergefell are themselves legitimate instances of constitutional interpretation, given the basic “originalist” history and tradition interpretive framework of Dobbs, although it’s true that Clarence Thomas is the only justice in the majority who was tactless enough to point this out yesterday. And two of those three case are much more vulnerable on the most basic stare decisis grounds than Roe, because they’re so relatively recent.

But some people need to play their little games.

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