I’ve read only part of the leaked opinion by Supreme Court Justice Alito, showing the court majority’s decision to overturn Roe v. Wade, with horrible immediate consequences for the freedom and equality of people in many states, and horrible longer-range consequences and ramifications for freedom and equality generally in this country. What’s already struck me, and what I know has struck others who study the country’s history, is this definition:
The Due Process clause of the Fourteenth Amendment . . . has been held to guarantee some rights that are not mentioned in the Constitution, but any such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” . . . The right to an abortion does not fall within this category.
For precedent, Alito cites Washington v. Glucksberg—that’s the source of the material in the quotation marks above. In that 1997 decision, the court came up with what Justice Kavanaugh has called “the Glucksberg test,” a concept that the legal right wing has adopted as the standard for determining which if any rights not enumerated in the Constitution are protected and which are not.
In 2018, the writer Ian Millhiser pointed out in a ThinkProgress article that in his confirmation hearing, Kavanaugh asserted that “all roads lead to the Glucksberg test,” from which Milhiser deduced—correctly, we now know, if we didn’t before—that Kavanaugh was eager to overturn Roe v. Wade. Millhiser also noted that in a 2017 speech, Kavanaugh had already explicitly connected the Glucksberg test to the idea that the Roe case had been wrongly decided. All of which Senator Collins either didn’t notice or care to notice, or pretended not to notice, when she claimed she’d reject any nominee who would overturn it.
Many of us are used to the “originalist” notion that nothing not explicitly stated in the Constitution can be constitutional. James Madison originated that brand of constitutionalizing when attacking Alexander Hamilton’s plan for a national bank. Madison didn’t believe in the theory—because it’s absurd—and went back on it when he was president.
But the Glucksberg test is more nuanced. It admits that some rights not mentioned in the Constitution may actually protected anyway.
But which ones? How can we know? What’s the test?
Justice Rehnquist’s opinion in Washington v. Glucksberg does say what Alito, in the quotation above, says it says, though it also says more. Here’s Rehnquist:
. . . the Court has regularly observed that the [Due Process] Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition,". . . "so rooted in the traditions and conscience of our people as to be ranked as fundamental". . . and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed."
Note, though, that the quotation marks persist. That’s because in 1997, when establishing the so-called Glucksberg rule, Rehnquist was using language that wasn’t original to his opinion, either. He too was citing earlier decisions, as judges do. (When quoting Rehnquist, Alito says “internal quotation marks omitted,” though you’d think they might be relevant here.)
What’s original with Rehnquist in 1997 is the word “objectively.” I guess it’s that word that enshrines the Glucksberg opinion as a rule. So there’s really no Glucksberg test, aside from the “objectivity” idea slipped by Rehnquist into the much older judicial material on deep-rootedness that his Glucksberg opinion quoted.