Judge Ketanji Brown Jackson has spent this week articulating her views on the Constitution and the rule of law in marathon hearings before the Senate Judiciary Committee. But the most notable perspectives on the Supreme Court and its rulings did not come from the would-be justice. They came from various Republican senators, who articulated a vision of the Constitution that would be radically different for millions of Americans’ everyday lives.
Tennessee Senator Marsha Blackburn went first. “Constitutionally unsound rulings like Griswold v. Connecticut, Kelo v. City of New London, and NFIB v. Sebelius confused Tennesseans and left Congress wondering who gave the court permission to bypass our system of checks and balances,” Blackburn said earlier this week, according to The Tennessean. “It is the eleventh hour, and Judge Jackson’s stance on the Constitution remains a secret.”
What did Blackburn find so unsound and confusing? In the 2005 decision in Kelo, the Supreme Court expanded the use of eminent domain, concluding that the government transfer of land from one private owner to another could qualify as “public use.” In the 2012 decision in Sebelius, the court narrowly upheld the Affordable Care Act’s individual mandate to buy health insurance, handing the Obama administration its first legal victory over the landmark health care law. Both rulings are frequently criticized by conservative legal scholars and activists.
But it was Blackburn’s reference to Griswold that drew wider attention. The 1965 case is named for Estelle Griswold, a Planned Parenthood activist. Griswold and obstetrician Charles Lee Buxton sought to overturn an 1849 law in Connecticut that banned the use and sale of contraceptives. To do so, they intentionally broke the law by opening a clinic in the state that provided birth control prescriptions. Their plan succeeded: Local law enforcement officials raided the clinic, arrested both of them, and brought charges against them.
The legal battle eventually reached the Supreme Court. In a 7–2 decision, the justices held that the Connecticut law was unconstitutional because it violated the “right to marital privacy.” The Constitution does not explicitly mention a right to privacy. But the court, led by Justice William O. Douglas, ruled that it was a natural outgrowth of the protections of the Bill of Rights, which protect Americans from various forms of government intrusion. “Would we allow the police to search the sacred precincts of marital bedrooms for tell-tale signs of the use of contraceptives?” Douglas wrote. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
Overturning Griswold today would be tantamount to overturning the sexual revolution of the 1960s and the 1970s. State legislatures would theoretically be free to impose bans on contraception for married and unmarried couples alike. Few states had such laws in 1965, but the anti-abortion movement’s aversion to contraception could push Republican-led states to enact them in the future. What’s more, jettisoning Griswold would also undermine the court’s rulings in successive cases that expanded upon the right to privacy. Perhaps the most famous of them is Roe v. Wade, which could already find itself overturned later this term in Dobbs v. Jackson Women’s Health Organization.
A series of decisions that protected LGBT rights could also be imperiled. One of them, the 2003 case Lawrence v. Texas, struck down a Texas law that criminalized sexual activity between consenting adult men. Anthony Kennedy, writing for the court, drew upon Griswold to find that the Fourteenth Amendment’s Due Process Clause forbade states from enacting “sodomy laws,” as such statutes were once known in the Anglo-American legal tradition. He connected it to a broader constellation of cases, including Roe and Planned Parenthood v. Casey, the 1992 decision that rewrote and reaffirmed Roe. Lawrence, in turn, was among the precedents cited by the court in Obergefell v. Hodges, which struck down bans on same-sex marriage across the country in 2015.
Obergefell itself came under criticism from another senator on Tuesday. Texas Senator John Cornyn questioned Jackson at length about substantive due process, the term for when courts protect rights like those in Griswold, Roe, and Obergefell that are not explicitly found in the Constitution’s text. Cornyn, like many critics of substantive due process, cast it as illegitimate by arguing that it was first used in Dred Scott v. Sandford. He went on to describe Obergefell as a “dramatic departure from previous laws in the states and in the nation.”
“Do you see that when the Supreme Court makes dramatic pronouncements about the invalidity of state marriage laws that it will set in conflict between those who ascribe to the Supreme Court’s edict and those that have a belief that marriage is between a man and a woman?” Cornyn asked. “These issues are being litigated,” Jackson replied, noting that she was ethically “limited about what I can say about them.” In a follow-up question, Cornyn was even more blunt. “Marriage is not in the Constitution, is it?” he asked. “It is not,” Jackson acknowledged.
That same day, another senator suggested that the court should roll back rulings that protect interracial marriages. During a conference call with reporters, Indiana’s Mike Braun was asked if he thought the Supreme Court would be engaged in “judicial activism” if it overturns Roe v. Wade later this year. Braun replied that he thought Roe itself was judicial activism, saying that abortion “should have never been federalized” and that the court’s 1973 ruling was “way out of sync, I think, with the contour of America then.”
“So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?” a reporter then asked, referring to the court’s 1967 decision in Loving v. Virginia. Braun replied in the affirmative: “I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too,” he explained. “I think that’s hypocritical.”
“What about Griswold v. Connecticut?” a reporter asked. “Well, you can list a whole host of issues, when it comes down to whatever they are, I’m going to say that they’re not all going to make you happy within a given state, but we’re better off having states manifest their points of view rather than homogenizing it across the country, as Roe v. Wade did,” Braun replied.
The Indiana senator quickly backtracked after his answer received widespread attention and criticism. “I misunderstood a line of questioning that ended up being about interracial marriage,” he told The Washington Post. “Let me be clear on that issue—there is no question the Constitution prohibits discrimination of any kind based on race; that is not something that is even up for debate, and I condemn racism in any form, at all levels and by any states, entities, or individuals.” It’s unclear what exactly Braun misunderstood about the questions posed to him.
None of the three senators are on the Supreme Court, thankfully. But on Griswold and on Obergefell, at least some of the justices share their views. (No justice, past or present, has criticized Loving, and there is no active campaign to challenge it.) Many of the court’s conservative justices have criticized substantive due process in general, most notably Antonin Scalia and Justice Clarence Thomas.
And in a statement in a 2020 case, Thomas and Justice Samuel Alito effectively called upon the court to revisit Obergefell because it effectively painted religious opponents of same-sex marriage as bigots. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” they concluded.
How Jackson views and understands the Constitution is important. But it may matter less than how legal conservatives, who count a majority of the justices on the court as their friends and allies, view the Constitution. They are articulating a disturbing vision of America: one where police could arrest women for buying contraceptives; where not only could gay couples no longer marry but they could be jailed just for sleeping together; and where bigoted state legislators could enjoy a veto over the marriages of interracial couples. Americans broadly support legal access to contraceptives, same-sex marriage, and interracial marriage. But that may matter less than what a handful of right-wing judges, senators, and legal activists think that the Constitution demands.