Are All Court-Created Rights Now in Peril?

What does this fear that if the Alito decision overturning Roe becomes law, all these other decisions are in peril as well, tell us? It suggests that the national establishment lacks faith that the American people have truly and fully embraced the social reforms that progressives have gotten the Supreme Court to impose by fiat.

In the storm that erupted over the leaked draft opinion of Justice Samuel Alito, which would overturn Roe v. Wade, a secondary alarm has arisen among our elites.

If Roe is overturned, it is said, a whole raft of Supreme Court rulings rooted in the same principles and legal reasoning could be overturned as well.

Pillars of our progressive society could come crashing down.

In an op-ed in The Washington Post, legal scholars Melissa Murray and Leah Litman wrote that Alito’s draft opinion “declares that the Constitution ‘makes no reference to abortion’ and argues that abortion rights were ‘entirely unknown in American law,’ throughout most of the nation’s history.”

Yet, the scholars argue, the same “is true of contraception, which the court held states could not restrict in Griswold v. Connecticut. It’s true of … interracial marriage and same-sex marriage, which the court has held could not be prohibited in Loving v. Virginia and Obergefell v. Hodges. It’s true of sexual intimacy between consenting adults, which the court held states could not prohibit in Lawrence v. Texas.”

If a woman’s right to an abortion no longer exists, we are being forewarned, the right to birth control, gay rights, interracial marriage and same-sex marriage could be the next to fall to the Alito ax.

Yet, the idea that a state legislature, in this decade, would enact a new statute that outlaws sexual relations between gays and lesbians or rejects any constitutional right to same-sex marriage — and the Supreme Court would uphold that statute — seems an absurdity.

Still, the raising of such fears tells us something about those advancing this line of argument. They are worried about the fate of cherished reforms that they have managed to impose upon the nation and its people through autocratic decisions of the Supreme Court.

What the pro-abortionists are saying is that many court decisions declaring new rights are not at all deeply rooted in the Constitution or in the hearts and minds of the population.

They are saying that there are more Americans than you might imagine who would like to see the work of the Supreme Court, of which progressives are most proud, undone.

They are saying that the rights discovered and declared in the gay rights and same-sex marriage decisions, for example, had to be imposed by the court. Else, they might never have become federal law. The nation as a whole would never have embraced them.

Again, what does this fear that if the Alito decision overturning Roe becomes law, all these other decisions are in peril as well, tell us?

It suggests that the national establishment lacks faith that the American people have truly and fully embraced the social reforms that progressives have gotten the Supreme Court to impose by fiat.


Earl Warren was appointed chief justice by President Dwight Eisenhower in 1953. A year later, Warren delivered his unanimous ruling in Brown v. Board of Education, which outlawed racial segregation in all public schools — 10 years before Congress was able to pass the Civil Rights Act.

While the Civil Rights Act of 1964 and Voting Rights Act of 1965 were enacted democratically, by the Congress, Brown and subsequent court decisions mandating forced busing to bring about racial integration and a prescribed racial balance were enacted autocratically.

They were imposed by unelected justices, serving for life, against whose rulings U.S. citizens had no recourse. And Brown and its progeny were resisted in a way the Civil Rights Act of 1964 was not.

During these same decades, Supreme Court decisions were handed down outlawing all Bible instruction and voluntary prayer in public schools and forbidding virtually all religious expressions in the public square.

The nation was formally, officially and involuntarily secularized.

A democratically elected Congress would never have enacted these proscriptions. It took an autocratic court to impose them, by exploring and then discovering in the Constitution exactly what the court had decided to impose upon the American people, without the people’s consent.

Abortion was declared a constitutional right and legalized in every state, including that half of the nation that regarded it as shameful, sinful or criminal, in that it snuffed out the life of an unborn child.

Whatever else these court decisions do, they show a lack of confidence in the ruling class in its ability to persuade the majority to agree and enact a law, and a reliance upon the court to impose autocratically what progressives could not persuade the country to enact democratically.

President Joe Biden says this generation of Americans is in a global struggle between democracy and authoritarianism.

But were the decisions to outlaw the Bible and school prayer in the public schools, to declare that a right to abortion, homosexuality and same-sex marriage can be found in the penumbras of the Constitution, arrived at democratically or autocratically?

Perhaps the solution is to have court decisions discovering new rights subjected to national referenda, so the whole nation can say “Yea” or “Nay” after they are handed down.


8 replies
  1. James Bowery
    James Bowery says:

    Guys like Buchanan are lightning rods. The relevant question is, short of a Thirty Years War for Religious Freedom, how can people who are fleeing from toxic States prevent the parasites and predators, who made those States unlivable, from following them to any State of Refuge.

    Challenge to white nationalists: Set forth alternatives to that are at least as clear and concise. Don’t just critique it lest you be justly accused of being part of the culture thereof.

    • Pierre de Craon
      Pierre de Craon says:

      Pat Buchanan was saying precisely the same thing fifty years ago. Indeed, opposition to tyranny by judicial fiat has been a commonplace of hard-right thinking since the 1930s, if not earlier. What Buchanan says hasn’t acquired its significance simply because you have just now taken notice of it.

      It’s a pity that Jefferson didn’t respond to Marshall’s ruling in Marbury v. Madison by asking the Congress to impeach the Chief Justice for abuse of his constitutional authority. Rule of this country by (((Deep State))) judges who legislate on the fly might have been postponed by half a century or more if he had.

  2. Gerry
    Gerry says:

    “arrived at democratically or autocratically.”

    Here is a quote for one to mull over by a Dr. Cantelon:

    “When Woodrow Wilson, supported by many young intellectuals of America, had sought to influence the U. S. government in 1920 to support the League of Nations, he failed. Why, then 26 years later, were American people ready to join the United Nations, which in a sense, was the tree that grew from the roots of the League of Nations?

    Men pointed out that the two obstacles which prevented America from joining the League of Nations were old fashioned ideas pertaining to patriotism and religion. In the book entitled Great Ideas Today:1971, published by the Encyclopaedia Britannica, Joseph Clark says:

    Old fashioned patriotism is surely an obstacle to world government.

    But so-called old fashioned ideas of patriotism and religion seemed to be waning in America. By a vote of eight to one, the Supreme court expressed their disfavor toward compulsory prayer in the public schools, and with a vote of six to one denied students public Bible reading in the classroom.

    When a survey was made of 1,150 high school students, only one in 39 could name three books written by Saint Paul. Only one student in 38 could name three Old Testament prophets. Only one in 8 could name three of the Ten Commandments. A survey made in the colleges showed 60% could not name one parable that was delivered by Jesus, and 53% of Americans were unable to name even one of the Four Gospels.

    Russia was sending more than a billion dollars on literature and propaganda outside the of the USSR each year. The doctrines of socialism were not only being taught in classrooms of the colleges, but were also being heard from the pulpits of many churches, and from the pens of religious leaders.

    I wonder, I said too myself, how many Americans have studied the charter of the UN sufficiently to realize that it commits each member to a program of total socialism for itself and for all other nations. Alger Hiss was a major architect of the UN charter and served as the secretary general of the San Francisco conference for the organization of the United Nations. Twenty five years later, U Thant was quoted praising Lenin as a political leader whose ideals were reflected in the United Nations charter.” close quote!

    Lenin this Lenin that and schwabi is saying what? You’ll own nothing and be happy about it? Strange does that apply to the Royalists? Monarchies?

    This is nothing less than a war on Christianity period! And in a sense we Christians deserve it. Jesus was right a kingdom divided against itself will never stand and the Christian Church sadly doesn’t stand as a testimony to much really. Two world wars that pitted Christian nations against each is surely more than enough proof of that yes? They will know you are my disciples if you what!!!!???? LOVE ONE ANOTHER!

    Now comes the real story or solution? Read and weep:

    “The word of the Lord came to me: “Son of man, if a country sins against me by being unfaithful and I stretch out my hand against it to cut off its food supply and send famine upon it and kill its people and their animals, even if these three men—Noah, Daniel and Job—were in it, they could save only themselves by their righteousness, declares the Sovereign Lord.” (Ezekiel 14:12–14)

    and understand the Dust Bowl of the 1930’s when so much went wrong politically in America does anyone really believe those dust storms were just a coincidence?

    and woe look now what shows up Crop Circles which if any bothered to pay attention Christ mentioned the world as receiving yes!

    • Curmudgeon
      Curmudgeon says:

      Generally I agree with your assessment, but, as with everything else, things happen in a context. Woodrow Wilson was under the spell of Zionist Jews, according to Benjamin Freedman. While Wilson may have actually seen some benefit to a League of Nations after recognizing how he was duped into WWI by his controllers, is a different matter. Roosevelt was also controlled by Zionist Jews, many of whom were communists. Given his wife’s politics and his admiration for Uncle Joe, it is not outside the realm of possibility that he himself was a communist.
      You claim that the UN is on a socialist agenda. I disagree. The UN is exactly what the US wanted. It spied on its “allies” who opposed US sponsored provisions, in order allow the US to develop counter arguments, then press for votes after the counter arguments were made. Funny how there was little or no spying done on communist Russia. Socialism has a broad spectrum ranging from near libertarian to a large degree of intervention. Complete state control is not one of them. Marxism and Leninism are not socialism. Socialism was, even 50 years ago, opposed to immigration and demanded those allowed in integrate or be deported. It has always been about sharing the country’s wealth, not necessarily owning it. The 20th century wars were about defeating globalist opponents, which included Germany and Italy. Where political parties were not sufficiently infiltrated to change policy favouring globalism, revolutions prevailed. Every single (((Western liberal democracy))) has a Zionist occupied government. Zionism is a banker sponsored project, just as Marx and the communist revolutions were. That Israel attacks its neighbours virtually daily, yet has no sanctions imposed on it by the UN or any government, and has failed to meet the conditions imposed on it for membership is a clear indication of whose project this was.

      • Pierre de Craon
        Pierre de Craon says:

        The UN is exactly what the US wanted. It spied on its “allies” who opposed US sponsored provisions, in order allow the US to develop counter arguments, then press for votes after the counter arguments were made. Funny how there was little or no spying done on communist Russia.

        This is a sound analysis, however alien to devotees of the (((Narrative))) it may be.

        Do you think that the situation you describe—i.e., US dominance—was still true throughout the sixties and seventies, when the UN was, to all appearances, an organization at loggerheads with itself, in that the General Assembly looked to be run by a coalition of the USSR and its satellites and the so-called unaligned nations of the Southern Hemisphere; whereas the Security Council, where the real power was (at least formally speaking) meant to be found, seemed to be in fixed stalemate because of the veto power held by each of the five permanent members.

        What I am asking is this: do you think the USA had foreseen and hence was pleased with the way the UN functioned in that period, or had the organization by that time taken on a life of its own, to such an extent as to represent an unforeseen obstacle to the (((American imperial will)))?

        I don’t pose this as a leading question. Both now and at the time in question, nothing about the UN’s existence or behavior in that timeframe made any sense to me. I recall being most impressed by the utterly cynical analysis of one of my college teachers in the mid-sixties, who described the UN as a home from home for people who were capable of doing the world real harm had they not been constrained from doing so by being paid generously, even excessively, to do nothing but talk endlessly and to no purpose.

  3. Mallory
    Mallory says:

    Liberals got court decisions they liked in the past 70 years that should have gone through state legislatures or Congress.

    It’s liberals’ own fault.

    They used the courts as a legislature, and they know it.

    Can SCOTUS’s same sex marriage decision be reversed?

    Let us hope so.

    Same thing with prayer in school.

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