The Supreme Court revoking a right? It’s happened before

Written by William C. Duncan

July 15, 2022

See if this scenario sounds familiar: In a controversial decision, the U.S. Supreme Court identified a right it believed was implied in the 14th Amendment’s protection of personal “liberty” against state actions. After decades of restricting the power of the states to legislate on this issue, the court issued a surprising ruling reversing the earlier decision – allowing states to legislate on, and even abridge, the previously protected “right.”

According to some of the commentary on the Supreme Court’s recent abortion decision, this scenario has occurred only once – a few weeks ago in Dobbs v. Jackson Women’s Health Organization, when the court allowed states to broadly regulate the practice of abortion for the first time since 1973.  A common talking point has been that the Dobbs decision marks the first time the Supreme Court has acted to “take away” a right.

But the fact, as some have pointed out, is that this is not the first time the Supreme Court has recognized a right that it later abandoned – it has arguably happened a few times. The description in the opening paragraph, for instance, would fit an early 20th century legal development.

In 1905, the Supreme Court ruled in favor of a baker who had been fined for an allowing an employee to work more than 60 hours in a week. The fine was levied consistent with a New York state law that set an upper limit of 60 hours a week for workers. The court determined this law violated a “right of contract” it felt was implied in the 14th Amendment, although it was not specifically written into the Constitution.

For nearly three decades, the court relied on this precedent to turn back a number of state and federal regulations of the economy. Then, in 1937, the court, by a narrow majority, reversed its approach to economic regulations, allowing the states to enact more robust restrictions. This case was West Coast Hotel v. Parrish. It involved a Washington minimum wage law that applied only to women. Elsie Parrish, a chambermaid in a hotel, sued her employer for refusing to pay her the state’s minimum wage. The hotel argued that the minimum wage requirement violated the “right of contract.” In a 5-4 vote, the court held that states were free to make such laws despite the impact of the law on the previously identified right.

Ilya Somin has noted a number of similar reversals either of prior Supreme Court precedent or of clear constitutional guarantees (like the requirement that the government can only take property for public use and after compensation to the owner) that have been limited or eliminated by Supreme Court precedent.

Advocates on either side of an issue tend to welcome or decry the changes caused by such reversals because of the direction of the change itself, rather than the mere fact that the court has changed its approach. When the court appropriately repudiated its interpretation that allowed segregated facilities, there was little or no concern (among people of good faith) that the court had done something wrong by reversing course.

Clearly, a prior decision that was mistaken should be corrected. That is, in fact, the premise of a written Constitution. It should trump legislative or even judicial actions inconsistent with that document.

In the economic rights and abortion rights scenarios, the result of the later decisions was to increase the authority of representative branches in state government. In some important ways, the court had been moving in this direction for some time. In the 1990s, supporters of physician-assisted suicide felt the U.S. Constitution should be interpreted so as to invalidate state restrictions on that practice. They argued that broad language in prior Supreme Court “rights” decisions compelled that result.

In 1997, the court rejected that claim and clarified the appropriate legal standard for identifying rights that could fairly be implied from the language of the Constitution when such rights were not specifically mentioned. The court held that since there was no history or tradition of states recognizing a fundamental right to suicide, the Constitution’s failure to mention that practice meant that the states could regulate it as they chose. In the Dobbs decision, the court also followed that approach.

The result of the assisted-suicide decision has been that some states allow doctors to help patients take their own lives while other states do not. The result of the Dobbs decision will likely be similar as it relates to abortion providers.

The benefit of this approach is that in future cases where a party asserts that an unwritten right is implied in the Constitution, the Supreme Court has a reasonably clear and objective way of assessing that claim. This allows for consistency of results and predictability of decisions. Of course, the court can be more or less scrupulous about following this approach, but having a clearly articulated approach allows for the public to assess the court’s decisions and for corrections to be made when necessary.

The advantages to the nation of preserving the rule of law and ensuring accountability for government policies needs to be considered in the ongoing debate over underlying policy questions like abortion. The next time someone tells you that the Supreme Court is taking away rights for the first time, give them the facts that say otherwise – and help them understand how having a court that can (and will) correct its past mistakes ensures that our rights are grounded in something more permanent than policy preferences and whichever direction the political pendulum happens to be swinging.

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