Why a Post-Roe Attack on Privacy and Autonomy Is Unlikely

To be sure, the claim that the end of Roe is phase one of a broader judicial assault on privacy and autonomy is based on a rational premise. Although Justice Samuel Alito, in his Dobbs v. Jackson Women’s Health Organization opinion, tried to emphasize that the decision was limited to abortion, the logic that he and his five conservative colleagues used to strike down Roe v. Wade seems to have ominous implications. While Alito conceded that the Supreme Court does and should protect certain “unenumerated” rights that are not explicitly written in the Constitution, he argued that this protection should be limited to rights that are “deeply rooted in the nation’s history and tradition.”

The potential problems here are obvious. Same-sex marriage was not “deeply rooted in the nation’s history and tradition” when the Supreme Court defined it as a constitutional right in 2015, and the conservative justices said as much in dissent. Anti-sodomy laws were “rooted in the nation’s history and tradition” when the court invalidated them in 2003 (again over conservative dissent), as were anti-miscegenation laws before the court invalidated them in 1967. States restricted access to contraception before the court said that they could not in 1965 (for married couples) and 1972 (for single people). Considering this historical picture, progressive legal commentators can be forgiven for thinking that the doctrinal door is now open for challenges to these rights and liberties.

However, this analysis suffers from several flaws. First, Alito was correct to argue that Roe v. Wade was different from all these other privacy and autonomy cases. As Ruth Bader Ginsburg observed in 1985, Roe was unprecedented in its “sweep and detail”: invalidating the existing abortion laws of every state except New York and creating a trimester framework for abortion regulation that its author, Justice Harry Blackmun, did not even try to root in constitutional theory. Everyone in the legal world knew that Roe v. Wade was uniquely flimsy and vulnerable.

But the real reason not to expect a cascade of cases against privacy and autonomy is because the conservative legal movement is not interested in bringing them. No one at the Federalist Society’s 2022 National Lawyers Convention — held November 10–12 in Washington, DC — mentioned sodomy, miscegenation, restrictions on contraception, or gay marriage, nor have any litigators for the increasingly influential Pacific Legal Foundation (PLF), based in Sacramento, California, where I live and work. When I suggested to one of my students that they test the future of personal autonomy law by walking into the PLF headquarters and complaining about rampant condom use and excessive race mixing, the response of the classroom was laughter. Rightly so: the conservative legal movement lost these culture wars decisively, and the prospect of refighting them is very remote indeed.

The Revival of the “Takings” Clause

So what is the conservative legal movement doing in the aftermath of Dobbs? Students for Fair Admissions (SFFA) and other organizations have put substantial time and energy into eliminating racial classifications in college admissions. Both liberal and conservative analysts now recognize that this campaign — like the campaign against Roe — has succeeded. The only question is how, not if, the Supreme Court will rule in favor of SFFA and against Harvard and the University of North Carolina in the cases it heard on October 31, with decisions expected to be delivered in June. Conservative legal organizations will also continue their work on the expansion of religious liberty claims, including the high school football coaches who want to pray on the fifty-yard line and the bakers (or website designers) who don’t want to endorse same-sex marriage

While cases and controversies like these receive constant and high-profile media coverage, others — with just as, if not more, serious implications — are being overlooked.

One in particular carries significant dangers: Cedar Point Nursery v. Hassid (2021). This case involved a challenge to California’s Agricultural Labor Relations Act (ALRA), which was enacted in 1975 in response to the determined activism of Cesar Chavez and the United Farm Workers (UFW). The ALRA “gives agricultural employees a right to self-organization and makes it an unfair labor practice for employers to interfere with that right.” To enforce this right, the California Agricultural Labor Relations Board granted agricultural unions access “to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support . . . for up to four 30-day periods in one calendar year” so long as the union notified the board and the employer in writing and only talked to workers before work, after work, or during their lunch break.

Cedar Point Nursery, whose small, seasonal workforce grows strawberries in Northern California, argued that this regulation constituted a “taking” of private property, thus requiring “just compensation” from the government in accordance with the Fifth Amendment. In similar prior cases, the Supreme Court had applied a “multifactor test” when determining whether a regulation amounted to a “taking,” considering the “economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.”

Cedar Point Nursery — really the PLF, which brought the lawsuit free of charge — didn’t argue that the ALRA regulation had an adverse economic impact or interfered with business expectations. Instead, it argued that “unions . . . have no special right to invade private property and disrupt commercial operations, and property owners have a fundamental right to exclude trespassers. Government can’t make a regulation violating that right even if it limits the hours when it applies.” In a six–three opinion authored by Chief Justice John Roberts, the Supreme Court accepted this argument.

Curbing Administrative Power

Cedar Point Nursery matters because the “takings clause” of the Fifth Amendment has not carried serious weight since the 1930s, when a stubbornly conservative Supreme Court was embroiled in a damaging confrontation with the Roosevelt administration and state-level economic reformers across the country. The court retreated from this fight after Roosevelt’s massive triumph in the 1936 presidential election and subsequent threat to pack the court. A 1938 footnote in United States v. Carolene Products Company declared that the court would henceforth allow most economic and social regulations to stand.

Before this historic retreat, the “takings clause” was one among many tools that the court used to dismantle progressive legislation. The most infamous was the “liberty of contract” doctrine, which was not written anywhere in the Constitution but was invoked to strike down laws on maximum hours, minimum wages, and the right to form a union without employer intimidation. The current Supreme Court has shown no desire to resurrect this doctrine, although the influential libertarian scholar Randy Barnett has begun to revitalize “liberty of contract” in the Federalist Society, and Fifth Circuit Judge James Ho recently suggested that the courts should recognize a similar unwritten right to “earn a living.” Nevertheless, the current Supreme Court has flirted with another pre-1938 idea: the “nondelegation” doctrine, which prohibits Congress from transferring essentially legislative functions to the executive branch.

Like “liberty of contract,” the “nondelegation” doctrine finds no explicit support in the text of the Constitution, but its potential impact on government is far-reaching. Virtually the entire machinery of the federal government is a product of “delegation”: administrative agencies that Congress has invested with deliberately vague legal mandates to, for instance, “set fair and equitable prices” or “just and reasonable rates,” and “issue whatever air quality standards are requisite to protect the public health.” A full-scale attack on delegation is an attack on government itself.

The court nearly invoked the nondelegation doctrine for the third time ever in 2019, but its then four liberal justices were able to poach Justice Alito for an opinion upholding the broad delegations contained in the Sex Offender Registration and Notification Act (SORNA). This year, however, a six–three Court deployed a cousin of the nondelegation doctrine — the so-called major questions doctrine — to invalidate the heart of the Environmental Protection Agency’s Clean Power Plan. The Environmental Protection Agency (EPA) lost in West Virginia v. EPA not because it could never legally enact these regulations but because the regulations had such “economic and political significance” that they required a more explicit congressional authorization.

Groups like the PLF and the Federalist Society are excited about these cases (see, for example, this discussion at the Federalist Society’s convention). And they will bring more of them — scouring the country for honest small businesses (like Cedar Point Nursery) that claim to be menaced by oppressive red tape. Crucially, these cases will initially be heard by district and appeals court judges, many of whom were appointed by the Trump administration almost exclusively on the advice of the Federalist Society. While the progressive legal movement prepares for nonexistent challenges to contraception and interracial marriage, the conservative legal movement will push on with real challenges to the future of economic regulation.

The Age-Old Fight for Property and Profit

As Peter Canellos recently documented in a series of interviews with major Federalist Society figures, there is some ambivalence among conservatives about fully leaning into pre–New Deal judicial philosophy. After all, the Federalist Society was initially created with the intention of cutting the judiciary down to size.

But that was when the judiciary was controlled by liberals, and Cedar Point Nursery and West Virginia v. EPA are far from the first steps that the conservative Supreme Court has taken in the economic field. Chief Justice Roberts was praised by liberals for casting the decisive vote to uphold the Affordable Care Act in 2012, but his opinion in that case included a diminution of Congress’s power to regulate interstate commerce. In 2017, a five–four Court decided that public-sector employees have a First Amendment right to enjoy the benefits of collective bargaining without paying a penny to their unions, undermining labor legislation in virtually every Democratic state. Earlier, in 2010, another five–four First Amendment ruling — the infamous Citizens United v. FEC — gutted the bipartisan McCain-Feingold campaign finance law.

One way or another, the conservative legal movement seems determined to keep this momentum going. Now they have six justices and, thanks to the Trump Administration, nearly a third of the nation’s district and appeals court judges. With Roe v. Wade gone, the age-old causes of property and profit can take center stage.