Even in Connecticut, Our Rights are not Safe Until We Expand the Courts
With the release of the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health, Roe v. Wade and Planned Parenthood v. Casey were overturned, stripping the right to bodily autonomy from millions of Americans. Fortunately for its residents, Connecticut and several other states prepared for this moment by passing shield laws to not only secure the right to abortion but also protect residents seeking and receiving abortions from predatory laws in other states. However, with the current, brazenly political Supreme Court majority sounding more like conservative politicians than objective justices, we may not be safe even in a state like Connecticut.
Dobbs is a major realization of decades of work by the conservative legal movement to undo the progress of the civil rights, women’s equality, and LGBTQ+ rights’ movements. As many have pointed out, Alito’s opinion cuts the legs out from a slew of protections based on “unenumerated rights,” including marriage equality, access to contraceptives, and more. If we look to the Republicans running in the same legal circles as the conservative justices, this should be no surprise.
It is no accident that the policy goals of Justices Alito, Thomas, Barrett, Kavanaugh, Gorsuch, and Roberts align with those of Republican politicians. Forty years ago, the Federalist Society was formed to build the conservative legal reaction to the progressive wins of the previous decades, and to build the power needed to roll them back. To varying extents, the conservatives on the Court are both contributors to and products of this movement. However, the Federalist Society has not focused only on the judiciary. FedSoc is represented at all levels of elected government as well, particularly on the U.S. Senate Judiciary Committee, with Republican Senators Ted Cruz, Josh Hawley, Mike Lee, John Cornyn, John Kennedy, Marsha Blackburn, and Tom Cotton either boasting membership or speaking at Federalist Society events.
With the close intellectual and policy ties between Senate Republicans and Republican-appointed members of the Supreme Court, we should be unsurprised to see them moving in lockstep to eviscerate the individual rights that generations have come to rely upon. This alignment should be setting off alarm bells in progressive circles and in the legal profession as a whole—while also stripping away the last vestiges of the perception of Supreme Court neutrality from the public—because Republican politicians have not been shy about their desire to overturn more than just abortion rights. During the confirmation hearings for Justice Ketanji Brown Jackson, Senate Republicans spent a significant amount of their time attacking unenumerated rights, which do not appear explicitly in the text of the Constitution. Alito made a weak disclaimer denying the reach of his opinion but did little to hide the fact that his reasoning—and even his language—tracked with that of Republican politicians, giving lie to the opinion’s bare facade of legal objectivity.
Both Senate Republicans and Alito led by raising doubt about unenumerated rights. Cornyn stated his contempt for protecting unenumerated rights most plainly, asking “Who gives [judges] the right to do that if it’s not mentioned in the Constitution?” Lee and Blackburn concurred, and John Kennedy sarcastically commented that “we have a bunch of unenumerated rights… that only Supreme Court justices can see.” Alito was not so blunt, but he pointed out repeatedly that abortion is not mentioned in the Constitution and noted that “the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution.”
In addition to doubting that unenumerated rights exist, Senate Republicans also called the protection of such rights outright power grabs by the judiciary. Ben Sasse stated that “substantive due process is a doctrine that allows courts to create new fundamental rights,” and Cornyn characterized it as “court-made law that we’re all supposed to salute smartly and follow.” Blackburn went further, characterizing it as a “brazen act of judicial activism” and accusing courts of “invent[ing] rights out of whole cloth.” Alito used similar language as his Republican colleagues-in-arms, asserting that “substantive due process…has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives” and is a “raw exercise of judicial power.”
Most tellingly for what comes next, Alito and Senate Republicans highlighted the same opinion of where rights can be found. As Kennedy said, referencing Washington v. Glucksberg, they believe that “fundamental rights have to be deeply rooted in the nation’s history and tradition.” Lee highlighted some of the unenumerated rights that may be on the chopping block under this analysis: “Griswold v. Connecticut [right to access contraception], Roe v. Wade [right to abortion], Loving v. Virginia [right to interracial marriage], and a handful of others.” Despite his assurances otherwise, Alito seemed to agree, writing that “Casey relied on cases involving the right to marry a person of a different race,…the right to obtain contraception, [and others]” and tying them to other ideas based on the right to privacy such as theoretical rights to assisted suicide or drug use. He concluded these comparisons by saying that “none of these rights has any claim to being deeply rooted in history.”
Justice Thomas made this analysis plain in concurrence, calling substantive due process an “oxymoron that lacks any basis in the Constitution” and explicitly calling to revisit Griswold, Lawrence v. Texas, and Obergefell v. Hodges, which would bring the government back into the most intimate decisions we make in our lives and jeopardize access to contraception and LGBTQ+ equality.
It is imperative that we finally recognize things for what they are. The judiciary, particularly the Supreme Court of the United States, is not some neutral arbiter of the law. It is, instead, an institution composed of individuals who bring prior professional and lived experiences, along with belief systems that undoubtedly color the way they interpret and apply the law. Conservatives have understood that for the past several decades and have leveraged that knowledge to their benefit. In another recent judicial nominations hearing, Sen. Kennedy explicitly said to nominee Arianna Freeman, “I can’t vote for you if you don’t answer my question because I don’t know what position you’re going to take on the court.”
Where does all of this leave us here in Connecticut? For now, abortion is protected, despite potential access issues arising from more people from other states seeking abortions in Connecticut. Some Democrats have renewed the push to codify abortion protections in federal law, but given the ideological bent of the Supreme Court, it is highly unlikely that such a law would survive judicial review. In addition to restricting abortion access, an animating principle of the conservative legal movement has been to limit the power of Congress to pass federal regulations by narrowing the Court’s reading of the Commerce Clause of the U.S. Constitution. Federal abortion protections provide this Court with an opportunity to strike at two of its favorite enemies.
Even more worryingly, with Roe overturned, Republicans have started planning for national abortion bans the next time they control Congress and the White House. There is little reason to think that the current Court will stand in their way. Worse, the Court recently decided to consider a case that could let Republican state legislatures effectively do away with elections entirely, making it even easier for them to take power, enact a federal ban, and eliminate abortion access even in states like Connecticut.Republicans have shown us where this Court is headed. If we want to protect the rights that we have taken for granted for generations, we have to take action. It is time to expand and reform the Court, and it is imperative that greater efforts are focused on state courts to ensure that they are willing to protect our individual rights when the Supreme Court will not. To protect our residents, we are bringing people from across Connecticut together to call on our Congressional representatives to endorse Court expansion and reform by cosponsoring the Judiciary Act of 2021, and we hope you can join us. If we want to live in a country where abortion rights are protected, where we are free to marry whoever we love, and where all bodily autonomy and privacy rights are respected, it is time to take action.
Steve Kennedy is a Connecticut native living in Newtown, a third-year student at UConn Law, and the Organizing & Network Director of the People’s Parity Project (PPP). PPP is a nationwide network of law students and new attorneys organizing to unrig the legal system and build a justice system that values people over profits.