In the summer of 2022, the U.S. Supreme Court overruled an individual right for the first time in Dobbs v. Jackson Women’s Health Org. The Dobbs Court also suggested that several rights-affirming decisions including Loving v. Virginia, Griswold v. Connecticut, and Obergefell v. Hodges should be systematically reviewed to similarly determine their lasting effect, if any. The idea that decades-old precedent should be systematically reviewed by the Court to decide whether it should be overruled under the new Janus v. AFSCME balancing test is uncharted territory.
Using an ad hoc balancing test to systematize the overruling of longstanding decisions is the antithesis of stare decisis. Nevertheless, the Court cited its reasoning for overruling Abood v. Board of Education in Janus— as if a decision to overrule one precedent could be precedential in the overruling of potentially all precedent. The circularity of Janus’s anti-precedent precedent was thematic in Dobbs. If stare decisis creates stability and predictability in the courts, this newly systematized ad hoc strategy will create the opposite.
The Court unwittingly emphasized this fact when it issued a contradictory decision in NYSRPA v. Bruen the day before Dobbs. In Bruen, the Court expanded the fundamental human right to bear arms by inventing a new right to carry concealed guns. The Court did this just over a year after a mob of pro-Trump protesters stormed the Capitol Building with AR-15’s, and only weeks after a rash of highly publicized mass shootings exploded across the United States. In actuality, contradictory as it may seem, Bruen and Dobbs came from the same anti-rights school of thought led by the January 6, 2021, coup mastermind John C. Eastman.
This article explains the neo-Hobbesian, anti-rights rationales that made Dobbs and Bruen the apparent cornerstone of the U.S. Supreme Court’s new anti-rights trajectory. It examines the anti-rights movement from the messy Trumpian version led by John C. Eastman to the more orderly purism of Cass R. Sunstein and Adrian Vermeule. The resulting analysis reveals the apparent endgame of these anti-rights activists to overwrite the rights-centered spirit of administrative law under Crowell v. Benson with a newly fashioned and arguably misappropriated anti-rights spirit according to Wong Yang Sung v. McGrath.
Joshua J. Schroeder,
The Imagination Unbound: On the New Anti-Rights Trajectory of the U.S. Supreme Court,
50 Hastings Const. L.Q. 187
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol50/iss3/3