A major question that has emerged over the last few weeks is whether the Supreme Court, having just slain Roe v. Wade, will now turn its sword against other major precedents that shape American life. In a concurring opinion last month in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas called upon the court to “revisit” other substantive due process cases. He explicitly cited Griswold v. Connecticut, which struck down bans on contraceptives for married couples, and Lawrence v. Texas, which struck down so-called “sodomy laws” that criminalized same-sex relationships.
Much of the public attention since Thomas’s call to arms has focused on the third case he mentioned in his opinion: Obergefell v. Hodges, the landmark 2015 decision that overturned all state bans on same-sex marriage. Americans today overwhelmingly support marriage equality, including majorities of Republicans. The House of Representatives voted this week to enshrine some aspects of marriage equality into federal law with the Respect for Marriage Act, with 47 Republicans even joining Democrats to pass the legislation. The Senate may soon take up the bill, and some senators believe that it could attract enough GOP votes there to overcome the filibuster.
Faced with the prospect that the GOP’s once-united front against LGBTQ rights might irreversibly fracture, the conservative magazine National Review published an editorial column this week that forcefully urged Republican lawmakers to vote down the Respect for Marriage Act. Most of the column rehashes the critiques of same-sex marriage that opponents have made time and time again for the last 30 years, critiques that haven’t improved with age. But one portion tried to take a different approach by arguing that the bill isn’t actually necessary at all.
“There is, finally, the questionable need for the policy,” the magazine opined. “As constitutionally dubious as Obergefell was, and as welcome a restoration of legislatures’ ability to preserve a better understanding of marriage would be, the prospect of the decision’s reversal is vanishingly small. Democrats are pretending otherwise because a grand total of one justice of the Supreme Court has written that Obergefell should be rethought.”
I don’t know whether the Supreme Court will actually overturn Obergefell or any of the other precedents listed by Thomas in his Dobbs concurrence. The justices themselves may not even know what they will do yet. But this piece is not about what I think the court will do or why the court may or may not do it. It is about whether anyone should believe conservative pundits and politicians who claim that the Supreme Court won’t overturn a precedent that they themselves want to see overturned. The simple answer is that you would be better off trusting a wallet inspector.
Over the last decade, and especially in the years since Anthony Kennedy retired from the court in 2018, Republican legislators and lawyers have worked tirelessly to create laws and lawsuits that they hoped would give the Supreme Court the opportunity to overturn Roe. Legal conservatives rallied behind Donald Trump in 2016 in no small part because they wanted to ensure that there would be five conservative justices on the Supreme Court after Antonin Scalia’s death. At the same time, some leading conservatives tried to downplay the possibility that Roe v. Wade would be overturned or, alternatively, that it would be a big deal if it was. In doing so, they tried to frame abortion rights activists’ concerns as hysterical and unrealistic.
Maine Senator Susan Collins, for example, told reporters after Kennedy’s retirement in 2018 that she would be hesitant to confirm a nominee who “demonstrated hostility [toward] and an eagerness to overturn Roe v. Wade.” Conservative legal commentator Andrew McCarthy responded to her statement at the time in a column in National Review that dismissed as fanciful the idea that the Supreme Court would overturn Roe v. Wade anytime soon. It reads today like something from an alternate universe.
“Go ahead and Roe, Roe, Roe your boat, Senator,” McCarthy wrote. “Thanks to Justice Kennedy, we’ve actually been living in a Casey world—as in Planned Parenthood v. Casey—for the past quarter century. For good and for ill. ‘Don’t you dare touch Roe’ is the political hyperbole of Democrats and their fellow travelers. It is not a serious legal position—as if serious legal positions had anything to do with confirmation politics.”
Part of his argument rested on a distinction between Roe and Casey, the 1992 case that rewrote Roe’s central holding and introduced the “undue burden” standard when assessing anti-abortion restrictions. McCarthy contended that Casey’s introduction of that standard “granted expansive and expanding room to regulate abortion,” and that most abortion cases now revolved around what counted as an undue burden. This assertion accurately described the status quo while Kennedy was on the court; McCarthy carefully elided that anti-abortion groups had long hungered to change that status quo in their favor.
From there, McCarthy got it stupendously wrong. “It is unlikely that cases will present a need to grapple with Roe; it is even less likely that Roe will be overturned, and even if this highly unlikely event were to come to pass, it would not render abortion illegal,” he continued. “Instead, abortion would once again be a question for the states, the vast majority of which would guarantee some degree of access to abortion. We are not going to move into a post-Roe era, but even if we did, no woman who could obtain an abortion today would be unable to get one post-Roe.”
After Justice Brett Kavanaugh’s confirmation in 2018, this type of denialism had to reckon with the likely impending success of the anti-abortion movement. Erick Erickson, another longtime conservative commentator, suggested as recently as this year that it would be no big deal if the Supreme Court overturned Roe. “The reality is nothing is really going to change,” he opined. “People who want an abortion may have to travel further to get one. Overwhelmingly, people will still not be getting abortions. A few more medical offices will come up for rent as abortion factories are shuttered. Protestors will clear out. State legislative elections will matter a bit more. But life will go on for about 300 million Americans as always.”
If overturning Roe would be no big deal, as McCarthy suggested and as Erickson claimed, then a lot of people in the anti-abortion movement wasted their lives. Americans who oppose abortion donated untold millions of dollars to anti-abortion groups and anti-abortion candidates over the last five decades. They spent countless hours organizing, holding rallies, protesting outside abortion clinics, writing pamphlets and newsletters, holding phone-banking sessions, and more. It’s implausible to think that so many people devoted so much energy to what they thought would be a minor and almost imperceptible shift in American life.
A better explanation is that conservatives knew that overturning Roe would be immensely unpopular among Americans and could lead to a significant political backlash for the GOP, especially when the grisly reality of a post-Roe America became clear. Rather than abandon an issue so central to their politics, they apparently sought to downplay and deny the consequences of overturning Roe—and even the possibility it would happen—until precisely the moment when it would be impossible for abortion-rights groups to stop it.
Fear of that backlash is why every conservative Supreme Court nominee since Robert Bork bent over backward to avoid suggesting how they would rule on abortion cases. (Justice Thomas even made the impressive claim in 1990 that he had never formed an opinion on Roe.) Some Republican senators were all too happy to help them. Utah Senator Mike Lee, for example, fervently denied that then-Judge Amy Coney Barrett would cast the deciding vote to overturn Roe during her confirmation hearing in 2020.
“It is simply not the case that the fate of health care in America turns on whether or not someone is confirmed to the Supreme Court of the United States nor is it a fact to suggest that the availability of an abortion or lack thereof is contingent upon anyone’s confirmation to the Supreme Court of the United States,” Lee claimed. Barrett cast the deciding vote to overturn Roe less than two years later.
Some on the right made almost no effort to hide the game they were playing. When some legal commentators noted last year that the Supreme Court had effectively nullified Roe v. Wade in Texas by letting that state’s bounty law go into effect, National Review’s Rich Lowry appeared on MSNBC to argue that the Supreme Court’s ruling was merely a “procedural decision.” He later added that claims to the contrary “[showed] the left is so addled and hysterical on this issue that it is incapable of rational thought.” A few days later, tucked safely behind National Review’s paywall, Lowry published an article titled “How Texas Pro-Lifers Ground Abortion to a Halt in the Lone Star State,” in which he fulsomely praised anti-abortion activists there for bringing about the ruling’s obvious impact.
I recount all this history not merely to dunk on a few conservative pundits but to provide some important context for how the conservative legal movement and its allies might approach similar cases in the future. When conservatives say that Obergefell et al. were “constitutionally dubious” or “wrongly decided” or whatever, and then immediately claim that the Supreme Court will never overturn them and that preparing for that possibility is a fool’s errand, you should take that with the largest grain of salt you can find. And that goes double when it comes from someone at National Review.
