New in SCOTUSBlog: What Has Changed In 14th Amendment Cases Over The Past Two Decades?

Randy Barnett and I continue to discuss shifts in our constitutional law casebook over the past two decades. This installment focuses on changes to the 14th Amendment. It is titled, A textbook 14th Amendment revolution. (I love the headline, for which all credit goes to editor Zach Shemtob.)

Here is an excerpt:

With the ascent of the Roberts court, the fifth edition reports a sea change in equal protection clause doctrine. On affirmative action, Bakke remains the seminal case as the court’s first foray into the matter, but Grutter, Gratz, and the Fisher pair are gone (along with Justices Sandra Day O’Connor and Kennedy). Instead, Students for Fair Admissions v. President and Fellows of Harvard College is now the court’s decisive precedent. The Supreme Court there ruled that schools can use race only in extremely narrow contexts, such as to demonstrate how a person’s race presented hardships that they overcame. (Although there is some evidence that institutions continue to test the boundaries of the ruling).

With sex discrimination, we added two new cases concerning transgender rights. United States v. Skrmetti upheld a state prohibition on certain sex-related medical procedures for minors. West Virginia v. B.P.J. ruled that states can exclude “biological[ly] males athletes who identify as female” from participating in women’s sports. The laws at issue in these cases would have been unthinkable in 2008, but societal movements changed quickly.

….

The fifth edition, however, would witness a revolution in substantive due process, and in how it is taught. Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, holding that the due process clause of the 14th Amendment does not protect a right to abortion. But we decided it was not enough to simply add Dobbs as the final case. We trimmed down Griswold v. Connecticut and, for the first time, added Eisenstadt v. Baird, which ruled that unmarried couples also had a right to contraception. Once that right had been established, the marital relations rationale for it quickly dropped away, like a booster rocket that takes a satellite into orbit falls into the sea having done its job.

These older substantive due process cases, once foundational, are nonetheless now vestiges. This is certainly true of abortion, but Kennedy’s landmark cases here may also end up withering away. The Obergefell dissents may then prove the most relevant, as a possible signpost for the future. Neither of us could have fathomed in 2008 how this chapter would evolve over 18 years.

Our next installment will focus on the Religion Clauses and the Second Amendment.

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