The formal dissent, jointly written by Justices Stephen G. Breyer, Elena Kagan and Sotomayor, minces few words but primarily adopts a tone of deep concern or even alarm about the implications of the majority’s ruling. Probably the harshest attack on the majority comes on Page 5, where the dissenters assert:
“Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
The dissenters further elaborate on this charge throughout their dissent. Clarence Thomas makes the threat real in his concurrence:
Thomas: As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.”. . . For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [birth control], Lawrence [private consensual sex] and Obergefell [same sex marriage]. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents . . . .
Thomas, cont.: After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. . . .
Moreover, apart from being a demonstrably incorrect reading of the Due Process Clause, the “legal fiction” of substantive due process is “particularly dangerous.”
An outside dissenter’s Comment, by Tressie McMillan Cottom: “The [NY] Times described the opinion as arrogant. I expect arrogance from a conservative court. It is more important to me that the decision is so bold.
This is a court unafraid of the electorate and unashamed of showing its hand. The emperor does not care that he wears no clothes. Nancy Pelosi reads a poem. President Biden issued a tepid commitment to women’s rights. No one seems afraid of the people. That is the people’s fault.
A telling observation by Peter Coy, NYTimes: “I’m not going to delve into the substance of the Supreme Court’s decision on Friday in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. I’ll only point out that those on the losing side weren’t just disappointed. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor went way beyond that, flatly stating in their dissent that the majority’s decision “undermines the court’s legitimacy.”
Sotomayor was even blunter in oral arguments in December. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked, before answering her own question: “I don’t see how it is possible.” Sadly, saying so out loud also undermines the court’s legitimacy.
Economics columnist Paul Krugman: has been probing the evolution of the Republican party into the battering ram that took down the 50-year precedent:
In 2019 an international survey of experts rated parties around the world on their commitment to basic democratic principles and minority rights. The G.O.P., it turns out, looks nothing like center-right parties in other Western countries. What it resembles, instead, are authoritarian parties like Hungary’s Fidesz or Turkey’s A.K.P.
Such analyses have frequently been dismissed as over the top and alarmist. Even now, with Republicans expressing open admiration for Viktor Orban’s one-party rule, I encounter people insisting that the G.O.P. isn’t comparable to Fidesz.
(Why not? Republicans have been gerrymandering state legislatures to lock in control no matter how badly they lose the popular vote, which is right out of Orban’s playbook.) Yet as Edward Luce of The Financial Times recently pointed out, “at every juncture over last 20 years the American ‘alarmists’ have been right.”
[Luce added, in a tweet: “Downplaying the enormity of what’s happening, or reassuring us that it’s not that bad, is the same as surrender.”]