Rights and the Supreme Court
May 4, 2022 12:23 PM Subscribe
In recent years, when I think of the Supreme Court, I think about rights it deliberates on; the right for gay people to marry, the right of interracial people to marry, the right of women to have an abortion, the right of racial minorities to have access to housing, education, medical care, etc. But it seems that rights are closely tied to privacy and the right to make a private and personal choices to better ones own life.
Is there a list of "rights" that the Supreme Court has deliberated on over its history. I ask because as has been pointed out by pundits on both sides of the political spectrum, if the court can reverse on one, it can potentially reverse on them all, even if that is "unlikely" because each case is supposedly, in isolation.
Is there a list of "rights" that the Supreme Court has deliberated on over its history. I ask because as has been pointed out by pundits on both sides of the political spectrum, if the court can reverse on one, it can potentially reverse on them all, even if that is "unlikely" because each case is supposedly, in isolation.
The Court deliberates about a lot more than rights; those cases just capture the public imagination more than, like, water disputes between states.
Privacy is a concept with a long history at the Court, but there's something even more basic that ties Court cases together, which is the Constitution. Aside from abortion, a lot of the rights you're thinking about fall under the Equal Protection Clause of the 14th Amendment, which is pretty wide-ranging.
The Court can overturn previous decisions, but that's not always bad. Brown v. Board of Education famously overturned Plessy v. Ferguson, which was the "separate but equal" case. I think most people are happy they did. It's rare that it happens, because it's admitting that an earlier Court messed up, which has pretty dire implications for the rest of the legal system. But it happens.
The right to privacy jurisprudence (not just Roe, but also cases like Griswold v. Connecticut, the birth control case) was/is controversial because things like abortion and birth control aren't actually mentioned in the Constitution. It's essentially a matter of the spirit of the law as opposed to the letter of the law. The liberal justices of the Warren and Berger Courts, like you, reasoned that the Constitution isn't just an enumerated list of rights, but a more general guarantee of freedom. The conservative justices (they would call themselves "originalists") maintain that if the people who wrote the Constitution wanted to grant rights for privacy or abortion, they would have actually written that into the document they produced.
It's also worth noting that, if the Court does indeed reverse Roe, they would not be declaring abortion illegal. They'd just be leaving that question up to the states. Some states would criminalize abortion; some wouldn't. This is the "states rights" argument from Jim Crow, which is one of the reasons why the 14th Amendment was written and adopted in the first place: to take the right to discriminate by certain categories away from the states. Theoretically, Congress and the states could draft and ratify an amendment ensuring the legality of abortion into the Constitution, although this would be quite difficult in practice.
A good constitutional law textbook would be helpful. Mine was "Rights, Liberties, and Justice: Constitutional Law for a Changing America" by Epstein and Walk. I would recommend it.
posted by kevinbelt at 1:24 PM on May 4, 2022 [3 favorites]
Privacy is a concept with a long history at the Court, but there's something even more basic that ties Court cases together, which is the Constitution. Aside from abortion, a lot of the rights you're thinking about fall under the Equal Protection Clause of the 14th Amendment, which is pretty wide-ranging.
The Court can overturn previous decisions, but that's not always bad. Brown v. Board of Education famously overturned Plessy v. Ferguson, which was the "separate but equal" case. I think most people are happy they did. It's rare that it happens, because it's admitting that an earlier Court messed up, which has pretty dire implications for the rest of the legal system. But it happens.
The right to privacy jurisprudence (not just Roe, but also cases like Griswold v. Connecticut, the birth control case) was/is controversial because things like abortion and birth control aren't actually mentioned in the Constitution. It's essentially a matter of the spirit of the law as opposed to the letter of the law. The liberal justices of the Warren and Berger Courts, like you, reasoned that the Constitution isn't just an enumerated list of rights, but a more general guarantee of freedom. The conservative justices (they would call themselves "originalists") maintain that if the people who wrote the Constitution wanted to grant rights for privacy or abortion, they would have actually written that into the document they produced.
It's also worth noting that, if the Court does indeed reverse Roe, they would not be declaring abortion illegal. They'd just be leaving that question up to the states. Some states would criminalize abortion; some wouldn't. This is the "states rights" argument from Jim Crow, which is one of the reasons why the 14th Amendment was written and adopted in the first place: to take the right to discriminate by certain categories away from the states. Theoretically, Congress and the states could draft and ratify an amendment ensuring the legality of abortion into the Constitution, although this would be quite difficult in practice.
A good constitutional law textbook would be helpful. Mine was "Rights, Liberties, and Justice: Constitutional Law for a Changing America" by Epstein and Walk. I would recommend it.
posted by kevinbelt at 1:24 PM on May 4, 2022 [3 favorites]
To answer your question more directly but also more facetiously: yes, there is a list. It's the Bill of Rights, plus the 14th and 15th Amendments. Even more specifically, the 1st, 2nd, 4th, 5th, 6th, 8th, 14th, 15th, and (depending on your interpretation) the 9th Amendments. The 3rd and 7th don't come up very often. Pretty much everything is just a subcategory of those.
posted by kevinbelt at 1:39 PM on May 4, 2022
posted by kevinbelt at 1:39 PM on May 4, 2022
Clarifying question: is the OP asking about unenumerated rights?
posted by mhum at 2:48 PM on May 4, 2022
posted by mhum at 2:48 PM on May 4, 2022
The latest episode of What Roman Mars Can Learn About Con Law talks about the potential for overturning other rights specifically in the context of that leaked draft. They do run through many of the other existing ones, but it's not an attempt to do a comprehensive list.
Outside the Bill of Rights, a lot of the specific rulings we care about (birth control, same sex marriage, consensual sex) come from the fact that courts have inferred the you have a sort of right of autonomy over your own person, and the equal protection / due process wording in the 14th amendment.
posted by mark k at 3:26 PM on May 4, 2022
Outside the Bill of Rights, a lot of the specific rulings we care about (birth control, same sex marriage, consensual sex) come from the fact that courts have inferred the you have a sort of right of autonomy over your own person, and the equal protection / due process wording in the 14th amendment.
posted by mark k at 3:26 PM on May 4, 2022
It's also worth mentioning that the Bill of Rights doesn't/didn't apply to the states "automatically"--there's a process called incorporation by which the due process clause of the 14th amendment is used to make them apply to the states, but it had to happen one-by-one (and as that link notes, parts of the fifth and sixth amendment haven't been incorporated and the ninth and tenth haven't been at all, but the tenth is about federalism so that doesn't make sense and I guess the ninth (unenumerated rights) has never come up).
posted by hoyland at 4:27 PM on May 4, 2022
posted by hoyland at 4:27 PM on May 4, 2022
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The right to privacy, which encompasses many more specific rights, is often said to arise from the substantive component of the Due Process Clauses of the 5th and 14th Amendments. Check out Part 5.4.5 in this outline of the 5th Amendment, prepared by researchers at the U.S. Congress.
You are absolutely correct that the right to privacy is actually a right to make one's own decisions free of government interference. While conservatives may criticize the doctrine in general terms, they actually like some of its applications. For example, the right protects parents' decisions regarding how to raise and educate their children.
posted by ferdydurke at 1:20 PM on May 4, 2022