Law Prof: KBJ Hearings Show Right Won't Stop at Smashing Roe v. Wade

For more than two decades, confirmation hearings for Supreme Court justices have revolved around a single question: whether the nominee would uphold or overrule Roe v. Wade, the landmark 1973 decision that recognized nationally a woman’s right to choose an abortion. As far back as the ill-fated confirmation hearings for Robert Bork in 1987, abortion has always been the elephant in the room, prompting thinly veiled questions about fidelity to precedent and “unenumerated rights” — rights not explicitly mentioned in the Constitution.

With this in mind, the hearings for Judge Ketanji Brown Jackson were unlike those that came before. Not only is Jackson the first Black woman to be nominated to the high court, but she is also the first nominee to be vetted in a soon-to-be post-Roe landscape. Pending on the high court’s docket is a challenge to a Mississippi law that bans abortion at 15 weeks — a case that is widely expected to mark the end of legal abortion nationally. Nevertheless, between their grandstanding about critical race theory and ludicrous allegations about Jackson’s sentencing of sex offenders, Republicans continued to pelt her with questions about unenumerated and “judge-made” rights.

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.