Much of the feigned shock and horror at Justice Alito’s leaked draft opinion in Dobbs derives from his use of the Washington v. Glucksberg “deeply rooted in this Nation’s history and tradition” standard for determining when unenumerated rights are protected by the 14th Amendment. All manner of horribles have been predicted if the Court adopts this standard, or rather treats its prior precedent adopting this standard a quarter-century ago as a real precedent. But many of the people rending their garments over the Glucksberg standard were, less than two months ago, championing the nomination of Ketanji Brown Jackson. What did Jackson say about this topic?
John Cornyn and Ben Sasse asked her specifically. Her answers?
JACKSON: The court has identified standards for the determination of rights under the 14th Amendment substantive due process.
CORNYN: And who gives them the right to do that? If it’s not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people? Where does that come from?
JACKSON: Well, the court has interpreted the 14th Amendment to include this component, the unenumerated right to substantive due process, and the court has said that that the kinds of things that qualify are implicit in the concept of ordered liberty, excuse me, or deeply rooted in our nation’s history and tradition. Those are standards that identify a narrow set of activities.
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SASSE: I want to go back to an exchange you had with Senator Cornyn. Substantive due process is a document that allows courts to create new fundamental rights. What is the test to create a new fundamental right?
JACKSON: The Supreme Court has said in the Glucksberg case that the fundamental rights that are recognized or that are included in substantive due process are those that are deeply rooted in the nation’s history and tradition. In a case prior to that, the court had defined it as the rights that are implicit in the ordered concept of liberty, or the concept of ordered liberty. So there are standards for the courts to use to identify these times of rights.
It’s the Glucksberg standard! As I observed at the time, this was “an answer Edmund Burke would approve.” How about in her post-hearing questionnaire?
Are there any unenumerated rights in the Constitution, as yet unarticulated by the Supreme Court, that you believe can or should be identified in the future?
RESPONSE: The Supreme Court has determined that the Constitution protects certain rights that are not specifically enumerated in the Constitution. According to the Supreme Court, the due process clauses of the Fifth and Fourteenth Amendments are the primary sources for the recognition of unenumerated rights, and the Court has held that, as a general matter, due process protects “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty[.]” Washington v. Glucksberg, 521 U.S. 702 at 720–21 (internal quotation marks and citations omitted). I would adhere to the Supreme Court’s precedent.
That questionnaire cites Glucksberg twenty-five times and quotes its “deeply rooted” language thirteen times. This is not a new position for her; in her D.C. Circuit questionnaire, Jackson stated:
According to the Supreme Court, the due process clauses of the Fifth and Fourteenth Amendments are the primary sources for the recognition of unenumerated rights, and the Court has held that, as a general matter, due process protects “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty[.]” Glucksberg, 521 U.S. at 720–21 (internal quotation marks and citations omitted). . . . Under binding Supreme Court precedent, the substantive due process clause protects unenumerated rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (internal quotation marks and citations omitted), and the government’s regulation of such unenumerated personal rights may be subject to heightened scrutiny.
Glucksberg again! Of course, Jackson may well apply that standard differently, but the notion that Alito is doing something really radical by appealing to the Glucksberg test is belied by the testimony of Joe Biden’s own Supreme Court nominee, just confirmed with the votes of every single Democrat in the Senate.