No one would mistake Akhil Reed Amar of Yale Law School for a pro-life activist or any sort of enthusiast for overturning Roe v. Wade. But the prominent constitutional law scholar is known for being a straight shooter willing to call out those on his own side, even his own law school administration, when they are being intellectually dishonest or just plain wrong.
The aftermath of the Justice Samuel Alito Dobbs v. Jackson Women’s Health Organization opinion leak has seen a number of defenders of Roe trot out utterly misinformed myths that distort what the draft opinion would in fact do. Amar called out a number of them on his Amarica’s Constitution podcast.
First is the notion that the draft “takes away a right” and that “that’s something that the Supreme Court has never done before,” making this case different from others that establish rights. That assertion, or something very close to that, was made by Amar’s former student, Noah Feldman; his former classmate and the ACLU’s national legal director, David Cole; and preeminent constitutional scholar Laurence Tribe. Amar called them out by name and called that notion
preposterous. It’s not wrong. It’s plainly wrong. It’s about as wrong as it’s possible to be because every first-year law student in constitutional law learns the story of 1937, the so-called “switch in time,” when the New Deal meets the old Court, and the Court, under pressure from Franklin Roosevelt, who’s been reelected in 1936, basically abandons its earlier jurisprudence—so-called Lochner era—in which case after case after case, beginning in about 1880, and now we’re talking 50 years later, which is about the same time period as between Plessy and Brown or between Roe and today. So there are case after case after case in the Lochner era using the idea of liberty of contract and the Contracts Clause and the Takings Clause and the property idea—using ideas of contract and property, which are individual rights . . . . The Court had read these rights very broadly to limit what state and federal governments could do to protect employees . . . . The Court in the Lochner era, the old Court, struck down again and again all sorts of regulations of business and struck them down in the name of rights, in the name of contract and property.
This era came to an end against the backdrop of political pressure that famously included FDR’s court-packing scheme. Feldman even wrote a book on this chapter of Supreme Court history, but now it seems to slip his mind. Amar asked, “Noah, Larry, David, what are you talking about? . . . That’s one of the most famous shifts in Supreme Court precedent of all time.”
Cole’s commentary had attempted some degree of nuance by acknowledging that the Court’s 1937 overruling landmark, West Coast Hotel v. Parrish, “took away some rights of business owners, but its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.”
“Baloney” is what Amar called this disingenuous attempt to distinguish “rights expansion versus rights protection.” To illustrate why, he rephrased Cole’s sentence with a slight change in language: “Suppose I said, Well, overruling Roe’s real effect, Dobbs’ real effect, would be to expand rights protection for millions of innocent, unborn Americans . . . unborn humans, subject to extermination by society. It’s the same thing, you see. That’s not a distinction, David. Surely, you must know that, right? This is very misleading.”
Another one of their oversights, Amar continued, is that the Court’s other key abortion precedent, Planned Parenthood v. Casey (1992), “massively cut back on Roe v. Wade and . . . openly overruled at least two other post-Roe cases that were all about reproductive rights. What are you talking about? We’ve already done this in 1992.”
Another line that has made the rounds is “that other landmark cases establishing a whole host of individual rights, privacy rights and related rights, are in jeopardy” by the Dobbs opinion. Prominently making this argument are Leah Litman and a former student of Amar, Steve Vladeck, in Slate. They cited the Supreme Court’s precedents addressing contraception (Griswold v. Connecticut), sexual conduct between same-sex partners (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges).
Amar asserts he is “passionate” about defending those precedents. To the notion that Griswold is at risk, he posed the question, “what are you talking about?” Citing Justice John M. Harlan’s separate concurrence on that issue, Amar said that “Griswold is easy and obvious under the Alito framework of” rights that are “deeply rooted” in history and tradition. “Lib law professors, you’re just trying to scare people with boogeymen or something about ‘Oh my God, Griswold is at risk.’ No, there’s no major movement to undo Griswold.” Roe’s reversal was a feature of every Republican Party platform over the last 40 years, and there has never been anything like that on Griswold. Its margin of support, Amar continued, is 9-0, including in Justice Alito’s testimony agreeing with the Court’s contraception precedents during his nomination hearing.
Amar continued: “Steve Vladeck, you’re my student, you’re my friend. What you said is absurd. OK? I’m calling bullshit on you because it’s absurd to think that Sam Alito or Clarence Thomas . . . or John Roberts for that matter” would support overturning Griswold. Unlike Roe, “Griswold does not involve the snuffing out of what many believe to be innocent, unborn human life” or invalidating the laws of 49 or 50 states or receiving “massive pushback” from one of the two major parties for the past 40 years. To Emily Bazelon, who made a similar point, Amar offered a wager of $100,000 with two-to-one odds against Griswold’s demise down the road.
To yet another trumpeter of the parade of horribles, Neal Katyal, who wrote an op-ed about Alito’s “road map to overruling Griswold,” Amar said, “Neal, you know I love you, but I do not love this piece. . . . No, this is exactly 100% wrong. Full stop.”
He continued that similarly “rock-solid” is the right to interracial marriage in Loving v. Virginia, which enjoys near universal support—and even referenced that a member of the Court, Justice Clarence Thomas, is in such a marriage. That outcome did not depend on “unenumerated rights analysis,” but included “explicit constitutional rights analysis” recognizing that “equal means equal.”
Amar’s broad conclusion: “America is not gonna move forward if we keep utterly mischaracterizing what the other folks are saying and why.” His corrective will probably be ignored by the many defenders of Roe who have made a habit of avoiding any discussion of the precedent’s grounding in the Constitution. But for those who have not decided to look the other way, it is a reminder of how egregious the disinformation in defense of Roe has become, and it is generated by so many distinguished legal commentators who should know better.