A major line of attack against Justice Alito’s draft Dobbs opinion is the claim that his argument will lead to all manner of other previously recognized rights being unrecognized by the Supreme Court. I’ve addressed this general topic at length. It is worth highlighting some of the more egregious examples. Here is one: Law professors Leah Litman and Steve Vladeck, writing in Slate, accuse conservative defenders of the draft of lying about it. “The Biggest Lie Conservative Defenders of Alito’s Leaked Opinion Are Telling,” the column is titled. This is a strong charge: not that particular conservatives are failing to accurately predict the future, but that everybody is outright lying. Let’s see how they back that up:

While conservative commentators have sought to minimize these fears, one of their main responses has exposed Alito’s draft majority opinion as nothing more than a lawless exercise of political power. They now claim that the court wouldn’t overrule those other precedents because, among other things, those other precedents are “politically popular.” This, to be clear, is not a legal distinction. It’s merely a statement that public opinion and politics will dictate what the court’s conservative supermajority thinks it can get away with — respect for the law and neutral principles be damned. . . . According to conservatives, the reason the conservative justices won’t follow up an opinion overruling Roe with opinions overruling Obergefell, Lawrence, and Griswold is not because the law or legal reasoning distinguishes those cases from one another. It’s because public opinion does — and the court will apparently overrule prior decisions only when it thinks it can get away with overruling them.

Let’s recall Supreme Court 101: The Court only decides legal questions if it is presented with a live case or controversy — in other words, it only decides whether a law is constitutional if somebody passes that law and tries to enforce it. Griswold v. Connecticut involved a challenge to a ban on contraception. The law in question was passed in the 1870s (in fact, it was written by P. T. Barnum, then a Republican state legislator and proponent of Victorian morals; celebrity politicians are not as new as we think). In 1961, in Poe v. Ullman, the Supreme Court threw out the first effort to challenge the law on the grounds that, even then, there was no serious effort to enforce it. Griswold is, in my view, not only bad law but insincere law; the Court justified the right of marital privacy by citing the traditionally rooted nature of marriage, then seven years later, held that it was unconstitutional to limit the traditionally rooted marital right to married people. But in order for anybody to challenge Griswold again, three things would need to happen before it even reaches the Court’s docket: (1) a state legislature or other elected body would have to pass a ban on contraception, (2) there would have to be a sufficient threat of it being enforced, or actual enforcement, that a lawsuit could be brought in which someone from the state steps forward to defend the law, and (3) the Court would have to decide, in its discretion, to hear the case. Two of these things would flow directly from there being a political decision by the political branches. The third would be an exercise of judicial discretion, which is — properly — influenced to a certain degree by the Court’s assessment of which cases present important and recurring controversies rather than arcane and academic points. The same calculus would apply to consensual adult sodomy or interracial marriage. Litman and Vladeck are not stupid, so I can only assume that this was written to deliberately deceive their readers about this elementary reality of American civics.