Outlook • Perspective

Republicans won’t be satisfied with overturning Roe

Ketanji Brown Jackson’s hearing offered a glimpse of upcoming culture war fights at the court

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

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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 criticize Griswold 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.

[Court packing isn’t the only way to reform the Supreme Court]

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.

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By Melissa Murray
Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University. Twitter https://twitter.com/ProfMMurray