The leaked draft of a Supreme Court opinion has caused a firestorm of problems, real and imagined. The first problem is the destruction of trust between the justices and their staffs at the Supreme Court. An investigation is currently taking place at the highest court to determine who leaked the confidential material. The latest information to come out is that the marshal is now asking for the phone records from members of the justices’ staffs.
Another problem is the “protesting” at the homes of the justices. Americans have the right to peacefully protest, but we do not have the right to intimidate justices or to frighten their family members. If you want to protest the potential overturning of Roe v. Wade, then do it at the Supreme Court building. Stay away from the justices’ homes!
There have been many lies about what the Supreme Court will do next once Roe v. Wade has been overturned. GianCarlo Canaparo authored an article about some of the lies and an attempt to dismantling “the most recent and most absurd claim.”
Serious and principled legal minds like professor Akhil Reed Amar of Yale and professor Sherif Girgis of Notre Dame have already done excellent work putting most of these lies regarding the upcoming decision in Dobbs v. Jackson Women’s Health Organization to the torch.
My task here is more modest – to finish their work by dismantling the most recent and most absurd claim: That the draft Dobbs opinion would lead to overruling Loving v. Virginia, which held that governments cannot ban or criminalize interracial marriage.
This is the first time that I have heard this claim, but I agree that it is “absurd” to think that anyone would consider such an action. Canaparo indicated that this topic is personal because he is “in an interracial marriage.” However, he is not concerned about his marriage becoming illegal because he is “confident that Loving will remain good law.” His reason:
Because the holding in Loving was compelled by the Constitution’s text. The holding in Roe v. Wade, on the other hand, was not.
Loving corrected a constitutional mistake. Roe was a constitutional mistake.
The leaked Dobbs opinion says the same thing that Loving did: The court got it wrong, and it’s time we interpret the Constitution as it’s written and stop twisting it to mean what we want it to mean.
Loving was a 14th Amendment challenge to a law banning interracial marriage. The 14th Amendment guarantees the equality of all people regardless of race. Loving held that the amendment meant what it said.
For almost a hundred years before the Loving decision in 1967, the Supreme Court disregarded that amendment. Beginning with the Slaughter-House cases and United States v. Cruikshank and culminating in the constitutional abomination that was Plessy v. Ferguson, the Supreme Court all but erased it from the Constitution. The court held that the amendment, which was ratified to make all people equal in the eyes of the law, did nothing of the sort.
The court was wrong. Egregiously, obviously, infuriatingly wrong. Loving was one of many great cases that fixed that error.
After explaining the reason for why the Loving decision corrected a “constitutional mistake, Canaparo moved to the Dobbs case. He explained that one of the causes of confusion is a misunderstanding as to what Loving did.
The key mistake in logic made by those who think Dobbs will pose a threat to Loving is that they think that Loving created a right to interracial marriage just as Roe created a right to abortion. It did no such thing. That right is inherent in our nature. Loving simply recognized what the 14th Amendment says: The government may not discriminate by race.
The Dobbs draft, therefore, has nothing to say about Loving. The draft says, rightly, that Roe was “egregiously wrong” and its reasoning “exceptionally weak” and “far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”
It says, rightly again, that the court “has neither the authority nor the expertise” to decide debates about the interrelationship of science and morality; those are debates for the democratic process.
What the court can and should do in Dobbs is affirm that the Constitution’s text means what it says, which is exactly what it did in Loving.
The Supreme Court must correct the
wrongs that it made in the past, and we know that there have been many of them.
The mistake that needs correcting at this time is Roe v. Wade. Neither the
Supreme Court nor anyone at the federal level has the right to make laws
concerning abortion. The Constitution outlines the duties of the federal
government and leaves everything else to the states or to the people. Since
there is no mention of abortion in the Constitution, we know that it was not
one of the duties given to the federal government.