Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law.
Substantive Due Process Is Ready for Takeoff
Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution. Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage. More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.
Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the right to assisted suicide could be found in the Constitution. The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter, because laws against the practice had long existed.
But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either. In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had itself not met the Glucksberg test. But the right of abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process. Even more troubling, however, Kennedy did not even reaffirm Glucksberg outside the context of rights of sexual autonomy. He said Glucksberg “may” offer the correct test there, which suggests he probably thinks it does not.
But whatever Kennedy personally thinks, Clinton’s filling of the Scalia vacancy means the death of legal restraints on a doctrine that Nelson Lund and I have argued has the potential to become “the most anticonstitutional doctrine” in all of constitutional law. Without rooting the choice of fundamental rights in tradition or, even better, in the text of the Constitution itself, justices will look to their own preferences.
That subjectivity does not imply that a majority of Supreme Court will immediately create their own ideal set of rights. Modern justices may well be concerned to avoid strong political backlashes. But the result will not be law-abiding justices, just cannier and in some ways more dangerous ones. Indeed, the most effective way for the left to replace traditional moral principles is to “boil the frog.” Year by year, decade by decade, new constitutional rights can chip away at traditional moral principles, preventing the possibility of any comeback.
And I have a sad prediction for my libertarian friends who welcome the expansion of substantive due process: the new Court Clinton creates will be far more likely to give constitutional protection to positive economic rights to help from government than to economic liberties against the state.