[PJ] Does the Dobbs v. Jackson decision herald the end of the era of the Supreme Court legislating from the bench? In his opinion agreeing with Justice Samuel Alito’s majority decision overturning Roe v. Wade, Justice Clarence Thomas stated that "in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell," that is, the Supreme Court decisions that discovered "rights" to contraception, homosexual activity, and same-sex marriage. Contrary to Leftist hysteria, this doesn’t mean that these things will suddenly be outlawed and we will be plunged into a Leftist nightmare world of Handmaid’s Tale pseudo-Christian theocracy: just as Dobbs doesn’t actually outlaw abortion but leaves it up to the states, so any overturning of those other rulings would throw those issues back to the states as well. it only means that the possibility has opened anew that the Supreme Court might actually base its decision on law, not on the Leftist agenda.Thomas explained that Griswold, Lawrence, and Obergefell needed to be reconsidered "because any substantive due process decision is ’demonstrably erroneous.’"
"Substantive due process" refers to "rights" that are founded in the reasoning first enunciated in Griswold v. Connecticut: specific guarantees in the Bill of Rights have "penumbras, formed by emanations," that create "zones of privacy." Thus the Roe v. Wade decision referred to rights of "personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras."
A "penumbra" in this usage refers to a right that isn’t actually stated in the founding documents, but which is supposedly implied in them, at least in the opinion of Leftist Supreme Court Justices. That kind of jurisprudence can lead to literally anything being held as Constitutionally justified, and that’s just the problem. Justice Alito wrote in his Dobbs v. Jackson decision that Roe v. Wade was "egregiously wrong and on a collision course with the Constitution from the day it was decided," precisely because it was based not on anything that was actually written in the Constitution, but on a "penumbra" that Justice Harry Blackmun and his colleagues who voted for Roe claimed to find there.