The Supreme Court’s decision overturning Roe v. Wade, allowing state governments to force women to give birth, is the result of decades of right-wing political advocacy, organizing, and electoral victory. It is also just the beginning of the Court’s mission to reshape all of American society according to conservative demands, without fear of public opposition.

Justice Samuel Alito’s opinion in Dobbs v. Jackson contains a classic Alito disclaimer—an explicit denial of the logical implications of his stated position. In this case, Alito declares that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” even as he argues that when it comes to rights “not mentioned in the Constitution,” only those “deeply rooted in this Nation’s history and tradition” are protected. If you’re asking yourself who decides which rights can be so described, you’re on the right track.

This will not end with the determination, as the dissenters write, that states may decide that “from the very moment of fertilization, a woman has no rights to speak of.” The conservative movement’s control of the Supreme Court, its success in skewing the electoral process in their favor through voting restrictions and gerrymandering, and the Democrats’ likely collapse in the coming midterms have bolstered their confidence that they can drastically reshape American society on their terms without losing power.

[Mary Ziegler: If the Supreme Court can reverse ]Roe, it can reverse anything

As the three Democratic-appointed justices note in their Dobbs dissent, more constitutional rights now are on the chopping block. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure,” the dissenters wrote. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” It seems to be the latter: In his concurrence, Justice Clarence Thomas writes that precedents establishing access to contraception, legalizing same-sex marriage, and striking down anti-sodomy laws should be “reconsidered.”

Setting aside the record of insincerity from Alito himself and the other conservative justices, the reason not to trust his disclaimer is that the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the Founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.

The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.

Many of the Court’s recent decisions, even before Dobbs, have demonstrated this. In the case over the Biden administration’s vaccine mandate for employers, the conservative justices disregarded the explicit text of a federal statute allowing the government to set emergency regulations governing “toxic substances or agents” in the workplace, and employed soft anti-vax arguments that had only become prominent in conservative media since the start of the coronavirus pandemic. As part of its rationale, the majority wrote that “in its half century of existence,” the Occupational Safety and Health Administration “has never before adopted a broad public health regulation of this kind,” which is true, because during that period there had not been a global pandemic that killed more than 1 million Americans.

In their decision earlier this week overturning restrictions on concealed carry of firearms in New York, the right-wing justices ignored historical examples of firearm regulations in order to argue that any such regulations—not just those in New York—were presumptively unconstitutional. The decision was a significant escalation in the Court’s gun-rights jurisprudence from the 2008 Heller decision, which found an individual constitutional right to possess a firearm. In the most recent ruling Thomas wrote that only those restrictions “​​consistent with this nation’s historical tradition of firearm regulation” are constitutional, but he did so ignoring, as the writer Saul Cornell points out, a centuries-long history of closely regulating arms in densely populated areas. That record is irrelevant. The restrictions deemed consistent with tradition will be whatever the current right-wing consensus happens to be.

[Timothy Zick and Diana Palmer: ]The next fight over guns in America

In his concurrence in that case, Alito sneered, “How does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.” The logic of the assertion suggests that laws against murder are useless because murderers continue to exist; it is a quality of reasoning that might come from a fifth grader. The argument is also not in any sense a legal one, just a paraphrase of culture-war blather one hears in right-wing media—which are a much more significant influence on the majority than the law or the Constitution is. Clearly Alito does not believe laws against abortion to be similarly pointless even though abortions will continue regardless.

A few weeks ago, the Supreme Court temporarily blocked by a single vote a Texas law forcing social-media companies to host content they do not want to host. That law is a textbook free-speech violation; but the right’s purported commitment to fundamental freedoms has been overtaken by a belief that its First Amendment rights are violated by the existence of social-media platforms that have moderation policies, which is essentially all of them. As such, Alito suggested in his dissent that such platforms did not actually have a First Amendment right to engage in editorial discretion. Why? It’s something that conservatives on the internet complain about a lot, so neither the explicit text of the First Amendment nor the Court’s prior jurisprudence on corporate speech matter.

These are recent examples, but hardly the only ones. In 2006, a Republican president signed an extension of the Voting Rights Act. By 2013, amid the backlash to the Obama presidency, right-wing justices had decided that the law was a “racial entitlement” and could be overruled on the basis of the states’ “equal sovereignty”—a concept that appears nowhere in the Constitution. The Fifteenth Amendment barring racial discrimination in voting explicitly authorizes such legislation, and its explicit purpose was to prevent the kind of racially discriminatory voting schemes the Roberts Court has repeatedly accepted.

The decision overturning Roe is not an exception to these fluctuations in political and ideological identity. The conflict over abortion rights was once more ideologically fraught and less polarized by party affiliation. A majority of the justices who joined the opinions in Roe and Casey were appointed by Republican presidents. Being anti-abortion became an essential aspect of conservative politics over the course of decades; the level of ideological unanimity and discipline on abortion in today’s GOP has not always existed. Although a much longer process than the prior examples, overturning Roe was less a result of the partisan composition of the appointees than the ideological evolution of the Republican Party and the conservative movement.

[Adam Serwer: Alito’s plan to repeal the 20th century]

Shortly after the court’s decision in the gun-rights case, Neal Katyal, the former Obama-administration acting solicitor generall, wrote, ”Gonna be very weird if Supreme Court ends a constitutional right to obtain an abortion next week, saying it should be left to the States to decide, right after it just imposed a constitutional right to concealed carry of firearms, saying it cannot be left to the States to decide.”

Well, no, that’s only weird if you assume that the right-wing majority’s intention is to consistently apply legal principles rather than to translate right-wing cultural identity into law. This is the purpose of the right-wing justices’ skewed historical analysis: to present discrepancies in which rights they uphold as inherent to the Constitution rather than as the product of their own undead constitutionalism.

I am not arguing that these positions are insincere. Rather, the purpose of this undead constitutionalism is to present contemporary right-wing positions on consequential matters as eternal and constant, and therefore the only legitimate interpretations, when they are entirely malleable and dependent on changes in conservative political identity. The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it. That is ultimately why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history.

The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for its current majority. And while the justices will both pretend and insist otherwise, the public need not flatter their imperious delusions. They should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth—which is to say, absolutely nothing.

This morning, the Supreme Court struck down a New York State law that limited concealed-firearm permits to those with a demonstrated need to carry arms outside the home. Justice Clarence Thomas, writing for the 6–3 majority in New York State Rifle & Pistol Association Inc. v. Bruen, said, “The Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Bruen thus opens one of the next major battlegrounds over guns in America: not who can buy guns or what guns can be bought but where these firearms can be carried, every day, by the millions and millions of Americans who own them.

This question will have major implications for what it’s like to be an American. Are people carrying guns at schools and shopping malls and public parks? What about at churches and synagogues and mosques? What is it like to pray in places where fellow supplicants are armed? Courts and legislatures will have to decide whether people can carry guns at protests and political demonstrations, in voting booths, on the subway and bus, and in pretty much every other public space in American life. The Supreme Court spent several decades determining where in the public square—streets, sidewalks, airports, fairgrounds, public libraries, public plazas—speakers have a First Amendment right to communicate. The Court’s answer—not in every place, and not equally in all places—is probably a harbinger for how the justices will determine the “sensitive places” where firearms can be restricted.

After all, something must be done to stem the flow of weapons into all parts of the public square. Even with the staggering frequency of mass shootings in our country, the Supreme Court in Bruen has now limited states’ discretion in regulating guns. New research by the Violence Project on mass shootings from 1966 to 2019, funded by the National Institute of Justice, finds that more than three-fourths of mass shooters bought “at least some of their guns legally.” If states can no longer use discretion to limit the number of people and places with guns at the permitting stage, identifying “sensitive places” will become an important means of restricting the presence of firearms in the public square.

[Thomas P. Crocker: Don’t forget the first half of the Second Amendment]

Most states already have robust public-carry rights. But tellingly, state laws in both red and blue states are also chock-full of bans on public carry in a host of locations. They include public transit, polling places, areas near permitted events, athletic facilities, public swimming pools, riverboat casinos, school-bus stops, pharmacies, business parking lots, public highways, amusement parks, zoos, liquor stores, airports, parades, demonstrations, financial institutions, theaters, hotel lobbies, tribal lands, and even gun shows. Discovering commonalities across such a variety of locations is difficult. But it is possible to identify the core safety, functional, and constitutional-value concerns that have long justified treating some places as “sensitive” for purposes of public carry.   

Nearly 15 years ago, the Court indicated that public carry of firearms could be restricted or even banned in at least some places. In District of Columbia v. Heller, which recognized an individual right to keep and bear arms for self-defense, Justice Antonin Scalia wrote that nothing in his majority opinion should “cast doubt” on “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” These “longstanding” restrictions, the Court held, are “presumptively lawful.” Such wording raised more questions than it answered. What makes these places “sensitive”? And what about all the other public and private places where people engage in worship, commerce, and other activities—are any, or all, of these places “sensitive”? This question was very much on the justices’ mind during the oral argument in Bruen. They asked about public-carry rights in Times Square, on the New York City subway, at public demonstrations, and on university campuses.

For some gun-rights supporters, banning or restricting public carry anywhere violates the right to self-defense recognized in Heller. They argue that the need for protection can arise in any place. That position ignores the historical recognition that there are some places where firearms can and ought to be presumptively banned. By contrast, some gun-regulation advocates might argue that every place is “sensitive,” owing to general concerns about public safety or the discomfort many people experience when they see firearms or know they are present. But this position would deny that the Second Amendment has any application outside the home, a position expressly rejected in Bruen.  

A number of gun-rights proponents have also argued that places are “sensitive” only insofar as the government or private-property owners provide adequate security for the defense of unarmed civilians. But that standard is inconsistent with both history and Heller. Many schools and government buildings do not and likely will not have the kind of security these gun proponents demand. More to the point, the “adequate owner defense” argument ignores the many nonsafety justifications for restricting public carry in some places, such as protecting the civic functions of government buildings.

At oral argument in the Bruen case, advocates for both sides struggled to provide answers, as the Court has not yet issued any clear guidance on the matter, and no ready-made formula for determining the “sensitivity” of places exists.

History can be a helpful, if imperfect, guide––and that’s clearly where the Court’s conservative super-majority will turn for reference. “If you concede, as I think the historical record requires you to, that states did outlaw guns in sensitive places, can’t we just say Times Square is a sensitive place?” Justice Amy Coney Barrett asked during oral argument.

British, colonial, and early state laws banned or restricted firearms in a variety of public and private places. Some laws banned arms for an entire geographic region, while others did so in specific places, such as schools or churches. The 1328 English Statute of Northampton provided that no person may “go nor ride armed by night nor by day, in fairs, markets.” (In today’s decision, the Court made an effort to discount the value of this law, saying it came “more than 450 years before the ratification of the Constitution.”) Supporting the Court’s designation of schools as sensitive places, Texas banned guns in schools and where people gathered for “educational, literary, or social purposes.” Missouri and Oklahoma Territory had similar laws. Harvard University said students couldn’t have firearms on campus as early as the mid-1600s, and the University of Virginia did the same beginning with its inaugural class in 1825. Several states also banned or restricted firearms in churches. In 1877, Virginia outlawed people from “carrying any gun, pistol, bowie-knife, dagger, or other dangerous weapon, to any place of worship while a meeting for religious purposes is being held at such place.”

[Graeme Wood: Think gun laws are hard to change? Try gun culture.]

Restrictions on where firearms could be carried were not controversial. A Georgia Supreme Court decision from 1874 characterized “the practice of carrying arms at courts, elections and places of worship, etc.” as “a thing so improper in itself, so shocking to all sense of propriety, so wholly useless and full of evil, that it would be strange if the framers of the constitution have used words broad enough to give it a constitutional guarantee.” Referring to carry bans at “legislative assemblies, polling places, and courthouses,” the Court states in Bruen it is “aware of no disputes regarding the lawfulness of such prohibitions … We therefore can assume it settled that these locations were ‘sensitive places.’” If “sensitivity” turns on historical pedigree, as Bruen says it does, there is significant support for allowing state and local authorities to forbid carrying guns in certain places.

But at some point, historical analogies are likely to run out or not present themselves at all. Times Square and shopping malls may be like modern-day “fairs” or “markets,” but what about a subway, a polling place, a public protest? History will not answer every question, but it sheds light on the reasons lawmakers and courts have long considered place restrictions to be necessary. Certain values are imbued in these considerations, and they provide guidance for today. Colonial and early American laws treated all these locations as sensitive not just because of public-safety concerns but also to preserve the civic functions and constitutional values associated with such places.

The first, and most obvious, reason to treat some places as sensitive relates to public safety. Consider the recent mass shootings in nightclubs, concerts, the New York City subway, a Buffalo supermarket, and an elementary school in Uvalde, Texas. “I’m still a little bit scared, because this was supposed to be a safe environment,” a cashier who survived the attack in Buffalo told reporters. Sadly, as we have seen all too frequently, places where large numbers of people gather present a target-rich environment for someone bent on committing mass murder.

Public safety is an important reason to disallow public carry in certain venues. But as historical and contemporary examples show, it is not the only reason.

Public carry can interfere with the principal functions of places. When armed protesters opposed to Michigan’s COVID-related health restrictions descended on the legislature openly carrying long guns, they threatened not only lawmakers’ physical safety but also the legislative process itself and the functioning of the state government. The January 6 riot likewise demonstrated the need for firearm bans not just in but also around government buildings.   

Similarly, some places at times facilitate important civic and constitutional functions. Consider mass protests in public streets, such as those that occurred across the nation during the summer of 2020. As some of the justices observed during oral argument in Bruen, crowded public assemblies raise serious public-safety and order concerns. Justice Elena Kagan wondered if a “protest or event that has more than 10,000 people” could be sensitive. Justice Barrett asked, “Why not?” Speaking about Times Square on New Year’s Eve, she said, “People are on top of each other. We’ve had experience with violence, so we’re making a judgment: It’s a sensitive place.”

What the justices failed to mention is that having arms in the public square during protests threatens the exercise of First Amendment rights to speak and peacefully assemble.

This is a real trade-off, not a theoretical one. Empirical evidence, including the doctoral work of one of this article’s authors, Diana Palmer, demonstrates that most individuals are far less likely to participate in protests if they know firearms will be present there. When asked if they would attend a local rally on a topic they cared about if they knew some protest participants would be carrying firearms, 71 percent of survey participants said they were unlikely or very unlikely to attend. An American Psychological Association poll found that more than three-quarters of adults fear mass public shootings and one-third avoid some public places because of that fear. Armed individuals and groups in Charlottesville, Virginia; Kenosha, Wisconsin; and other cities altered the traditional character and function of the public forum, a venue for the free and peaceful exchange of ideas. While gun-rights proponents may advocate for unrestricted freedom to carry guns to protests, preservation of First Amendment rights means policy makers must ensure that in the public forum people enjoy freedom from fear, intimidation, and interference with free expression.

[Read: ‘This is the price we pay to live in this kind of society’]

Non–Second Amendment constitutional values are also implicated in other private and public places, as the law professor Darrell A. H. Miller noted in a 2019 article. Like public forums, university campuses facilitate the free exchange of ideas, and churches provide a sanctuary for the free exercise of religion. Polling places are locations where citizens are, or should be, able to exercise their right to vote free from intimidation or coercion.

Critics may argue that designating a place as “sensitive” will not guarantee that murderers will abide by the designation. While that’s true, it misses the point. Nearly 400 million firearms are owned by civilians in the U.S. We have arrived at a crossroads where we must determine, as a nation, how freely firearms will flow in public and private places. The Bruen decision has removed another important power of government to limit public carry. America’s highest Court has embraced an interpretation of the Second Amendment that will ensure more guns will be carried in more public places. For the foreseeable future, guns will continue to be part of the warp and weft of American life. That the question of “sensitive places” is now front and center is a sign of where the country is with its gun laws—fighting over the margins of its expansive gun freedoms, not whether those freedoms should be so expansive in the first place.

To listen to the gun lobby, the Second Amendment provides an absolute constitutional right for an individual to own an array of armaments and ammunition free from regulation by the state. These advocates select from the amendment’s text only what supports their individual-freedom view, but they ignore entirely the imperative that precedes, the framing device of the whole thing—to protect “the security of a free State.” Read in full, the text of the amendment is not a prohibition on gun regulations but, rather, a requirement of certain regulations necessary for protecting that security and freedom.

Gun-rights activists point to the 2008 Supreme Court decision in Heller v. District of Columbia as finally establishing, some 219 years after the ratification of the Second Amendment, an individual right to possess a gun in the home, which they proclaim extends to assault rifles and sundry other weapons enabling individual bearers to inflict mass destruction of human life. In their view, the ordinary citizen is bound by a constitutional covenant to suffer the risk that others might use their military-style weapons to murder children—or churchgoers, or grocery shoppers, or concertgoers, but especially children—because it is the person, not the gun, who does the killing in the Second Amendment’s name. We the people must endure this risk, we are told, because otherwise the rights of some to “keep and bear Arms”—even against children—outweigh our collective need for safety and security. The constitutional protection of some to “keep” the weapons that they sometimes “bear” against us collectively is too important a right necessary for individual freedom to contemplate regulations that would, or even might, reduce our risk. We are told that the right to individual ownership of armaments like AR-15 platform assault weapons, with minimal or no real restraints on purchasing, is necessary for an armed populace to keep the threat of a tyrannical government at bay.

[James C. Phillips and Josh Blackman: The mysterious meaning of the Second Amendment]

Such a popularized version of our Constitution’s meaning was in part vindicated by a conservative Supreme Court majority, whose opinion in Heller focused principally on the second half of the Second Amendment, which reads, “The right of the people to keep and bear Arms, shall not be infringed.” Assuming that the term of art “keep and bear” means the same in modern English as “possess and carry,” and that “the people” refers to particular individuals rather than a political collective, as in “We the People,” which established the Constitution in the preamble, the right would seem to be fairly clear. (Or at least as clear as the First Amendment, which provides that “Congress shall make no law … abridging the freedom of speech,” under which the Supreme Court has nonetheless repeatedly found all manner of regulations permissible—such as those prohibiting incitement to violence, true threats, and advocacy for violent overthrow of the government, and those putting reasonable time, place, and manner restrictions on speech, among many others.)

But this version of the Second Amendment ignores the first half, which reads, “A well regulated Militia, being necessary to the security of a free State.” The Supreme Court barely contemplated the text’s meaning in Heller, asking no more than whether it could be given a logical link or a purpose consistent with what it dubbed the “operative clause”—wherein the amendment, in the Court’s view, protects an individual right to possess a weapon. The first half of the Second Amendment is at times also anachronistically associated with the question of whether the right to possess a weapon is tied to service in a “well regulated Militia”—a view the Heller majority rejected. Missing from this reading, however, is any consideration of the constitutional significance of what is necessary to maintain the “security of a free State.” What does this security entail? Are Americans secure in a free state when they live in fear of the next violent act that might be perpetrated by the bearer of semiautomatic weapons? Are Americans secure in a free state when they are told that more resources should be spent on arming teachers, or training students to duck and cover and keep silent, as if in a new Cold War, only this time the enemy is ourselves?

[Diana Palmer and Timothy Zick: The Second Amendment has become a threat to the First]

The gun lobby argues that the political, psychological, and emotional attachment to the ready availability of weapons for some is a value too precious to contemplate rethinking our collective approach to gun regulation. Any regulation that might lead to imposing far more restrictive licensing and background checks, or to limiting the availability of particular kinds of weapons, would be too costly to their selective understanding of constitutional freedoms. According to the gun lobby, individuals engaged in their own fantasy of the heroic citizen equipped to do battle against tyrannical government agents would suffer incalculable collective costs were Americans to restrict their access to weapons. If the choice were the lives of children or the political imagination of a vocal group of armament activists, whose costs should matter more? The inconvenience of some or the lives of others?

The Second Amendment provides an answer. The “security of a free State” matters. Our security is a constitutional value, one that outweighs absolutist gun-rights claims by NRA lobbyists, or Oath Keepers and other insurrectionist groups who hold their access to weapons dear for use in an imagined anti-tyranny quest. Meanwhile, the rest of us suffer the costs of the actual tyranny that living in a state of fear of mass gun violence creates.

Franklin D. Roosevelt’s 1941 “Four Freedoms” speech placed freedom from fear as one of four essential human freedoms. Translated to our modern gun crisis, this freedom can be realized only when individuals no longer have easy legal access to armaments that put them “in a position to commit an act of [mass] physical aggression against any neighbor.” Children today do not have this freedom from fear. Just to live in society and go to school, they must endure regular active-shooter drills, because the gun lobby has opposed any regulation that would keep weapons out of the hands of those whose activities remain legal up until the exact moment when they start shooting children and teachers. Proposals to make schools more like fortresses only add to the costs children bear rather than addressing the root constitutional problem—that insufficient regulation of guns impairs the liberties of all.

Protecting our freedom from fear does not mean that the government has complete authority to ban guns. To emphasize the amendment’s protections for security is not to abandon liberty. Rather, it is to recognize how excessive emphasis on the liberties of gun advocates undermines the many liberties of everyone else who seeks to live securely in a “free state.” The Second Amendment preserves a free state, not simply a security state.

When we Americans next hear that the Second Amendment protects a right against more effective regulation of weapons capable of imposing death on our neighbors, we should insist in response that the Second Amendment requires the opposite. It empowers a free people to regulate weapons as necessary to maintain their security and to protect their freedoms from fear and violence. We can be free, but only if we regulate guns—just as the Second Amendment tells us.

Should the Supreme Court’s final ruling in Dobbs v. Jackson Women’s Health Organization resemble Justice Samuel Alito’s leaked draft opinion, it will be an unprecedented moment in the annals of the Court. Never before has the Court reversed its own decisions in order to completely eliminate a recognized constitutional right protecting personal conduct—and here one that thousands of people turn to every year. Probably on that account, the overwhelming majority of the American people oppose the action that the Court seems ready to take, which appears likely to lead in the near future to laws totally banning or tightly restricting abortion access in more than half of U.S. states.

But perhaps even more significant than the demise of Roe is what the leaked opinion suggests about where the present Court may be headed. Following the addition of three Donald Trump–appointed justices through nomination processes that were at best highly irregular, five justices now on the Court appear to be in general agreement about the major tenets of a judicial philosophy at odds with much recent Court history. That these five justices also seem to share both great confidence in the correctness of their own views and a militant lack of concern about the effects of sudden change on the public’s respect for the Court and the law warn of serious ramifications for the weeks and years ahead.  

[Adrienne LaFrance: Liberty no more]

The five justices appear to agree that the legitimate role of justices on the Court is largely confined to the objective application of law to facts, and also believe that jurists who make choices to resolve perceived ambiguities in the law are engaged in legislative conduct beyond their judicial authority. For constitutional law, this allegedly objective approach to judging means seeking out the original meaning of the Constitution—that is, figuring out what was meant by words written long ago with regard to modern realities of which the Founders (and later drafters) were totally unaware. Justice Alito’s leaked opinion, on behalf of five justices, exemplifies this latter approach—because no right of abortion is specifically mentioned in the Constitution, the argument goes, the Supreme Court’s recognition of such a right cannot possibly be proper.

Perhaps the scariest passage in the leaked opinion comes in a discussion of the plurality opinion in 1992’s Planned Parenthood v. Casey decision, which had noted that, even if Roe was wrong, stare decisis commands adherence to its “central holding” that a state may not protect fetal life before viability, because failing to do so would undermine respect for the Court and the rule of law. To the five-justice conservative majority, this is nonsense: “We cannot allow our decisions to be affected by any extraneous influences such as the concern about the public’s reaction to our work. In suggesting otherwise, the Casey plurality went beyond this Court’s role in our constitutional system.” If the approach of this opinion holds, the Supreme Court will at once erase the right to an abortion and, in that very same decision, declare that the Court is foreclosed even from considering the consequences of that action on the public’s trust in the Court and the rule of law.

The plausibility of any claim that a Supreme Court justice should apply their view of the law without regard to how the public will react fades quickly when considered in the context of an impending decision to abolish a long-established constitutional right—or to take any other action that will materially disrupt the predictability and continuity of legal rights and duties. The Court cannot both be the willful instigator of radical changes in the law based simply on disagreement with the views of prior justices, and remain the faithful steward of a legal system that commands widespread trust and respect.

And new justices disagreeing with their predecessors is exactly what is happening here. The plurality opinion of three Republican-appointed justices in Casey reaffirmed the constitutional right to abortion as a form of liberty protected by the Fourteenth Amendment’s language, which says that no person shall be “deprived of life, liberty, or property without due process of law.” The Court’s repeated reliance on the due-process clause as a basis for recognizing substantive rights has long been attacked by advocates of supposedly objective, value-free jurisprudence, because the precise content of the protected activities remains to be defined by judges. In the leaked opinion, Alito, who disagrees from the start with reliance on the due-process clause as a source of substantive rights, nonetheless purports to reject the Casey plurality’s reasoning without disputing its fundamental premises. He does that by rewriting the history of abortion that he says was misstated in Roe, and concluding that a right to abortion is not essential to our nation’s scheme of ordered liberty and thus cannot be protected under the decisions that recognized liberty interests protected under the due-process clause.          

Concerns about loss of trust based on sudden radical changes instituted by a new group of justices are not answered by those justices claiming the mantle of objectivity and purporting simply to be interpreting the words of texts and applying a discernible original meaning of constitutional provisions. Sudden major changes in basic rights or rules that result directly from a change in judicial personnel are a problem regardless of the theory invoked to justify them.  

More fundamentally, though, any random selection of Supreme Court decisions disproves the claim that the interpretive tools of original meaning and textual literalism actually offer a value-free way for the Court to resolve the cases before it. That is mainly because the tiny percent of filed cases that the Court actually decides are those presenting the most-difficult legal issues, where multiple courts have disagreed and no simple resolution is possible.

[Jessica Bruder: The future of abortion in a post-Roe America]

Also, many texts are ambiguous, and constitutional provisions written more than 100 or 200 years ago have, at best, uncertain intended meanings when applied to the circumstances of modern life. On top of that, many of the most important constitutional provisions—freedom of speech, free exercise of religion, equal protection of the laws, and the prohibitions on unreasonable search and seizure, and on cruel or unusual punishment, for example—provide protection for rights of a certain type that is not unlimited, and whose boundaries are necessarily determined by courts. That can be done only by balancing interests and making sometimes difficult choices, activities that are anathema to advocates of value-free judging.                    

The Alito opinion’s categorical denial that it, like every other Supreme Court decision, is actually making value choices, and should be attentive to the impact of those choices on public trust and respect for the Court and its work, raises two substantial concerns about where the new majority’s constellation of convictions is likely to lead.

First, the right embodied in Roe and Casey rests on certain ideas about personal privacy that support a collection of other Supreme Court decisions concerning intimate personal and sexual activity, and protecting activities such as contraception use, gay sexual conduct, and interracial and gay marriage. Much of what is said in the leaked opinion demonstrates forcefully the majority’s disagreement with the legal foundation of these rights, and, as the solicitor general argued to the Court, overruling Roe and Casey would seem to “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” The opinion emphatically asserts that abortion is different because another life is involved. But that assurance is little comfort, given the tone and tenor of the present opinion, and the clarity of the majority’s disagreement with the very foundations of the entire right to privacy.    

Second, even more consequentially, as has been apparent at least since some quite radical decisions were handed down last term, the five justices listed as joining Alito’s opinion are likely to spearhead changes going far beyond the elimination of these particular rights. Indeed, the greatest threat posed by the new majority involves not eliminating individual rights but elevating newly expanded rights so that they are free from government action, and narrowly reading or invalidating existing remedial statutes, thus impairing the ability of government at both the state and federal levels to function and meet the needs of our challenging times.   

Already this term, the five-justice majority, joined by the chief justice, has championed the right to be free from vaccination requirements and has read the statute that created OSHA in an extraordinarily narrow manner to block the agency from mandating vaccination of the employees of major firms. Just recently, following in the path of recent decisions invalidating electoral spending limitations on First Amendment grounds, the same majority struck down an act of Congress limiting to $250,000 the amount that candidates can be repaid when they loan money to their own campaign. In the Court’s view, the corrupt appearance of very substantial post-campaign contributions going directly into the elected official’s pocket to repay a loan was insufficient to justify the limitation enacted by Congress—a value judgment if there ever was one. And pending on the docket, with a decision expected this month, is a case in which the five joiners of the leaked opinion are expected to lighten the regulatory burden on electric power plants by reading narrowly the statutory powers of the EPA, thus dramatically reducing its ability to protect the nation’s clean air and take action to stave off climate change.

Also teed up for decision this month is a Second Amendment case in which a lower court upheld a New York State law requiring evidence of good cause to obtain a license to carry a gun outside the home. Commonsense provisions like this, aimed at addressing our raging epidemic of gun violence, have been enacted in many states. And they have so far been regarded as in line with the 2008 Heller decision, which stated that the Second Amendment does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Nevertheless, the oral-argument transcript suggests that the five-justice majority is likely ready to find even these minimal constraints on gun ownership incompatible with the Founders’ original meaning.   

[John Paul Stevens: The Supreme Court’s worst decision of my tenure]

This term’s cases using personal rights to hamstring governmental action build on a number of cases from the previous term, in which the same majority acted in the same way. Among those cases were opinions second-guessing the preeminent powers of state and local government over health and safety policies in order to invalidate rules governing the size of assemblies deemed to offend the free-exercise right to assemble in church. These were the latest and most extreme instances of the conservative justices’ recognition of an extraordinarily broad right of free exercise, which has been applied directly and through the Religious Freedom Restoration Act, including one case last term that limited governments’ ability to impose generally applicable requirements of many types. On top of this, the justices also sharply narrowed the key remaining enforcement provision of the Voting Rights Act.     

And so it goes. Opportunities for a willful Court to have its way and fix what it sees as the errors of the past will be limited only by the lawsuits that eager litigants decide to pursue. Already on the docket for next term are two cases in which major Court precedents are on the line, and the views of the Alito-opinion five now seem quite predictable. One concerns the breadth of federal power to regulate the waters of the United States. The other may settle, by flat-out rejection, the fate of affirmative action in higher education, which has occupied the Court in a profoundly important series of nuanced rulings since the 1970s.

Many more cases like these will come. The question is whether enough justices will have the wisdom to realize that their certainty in the correctness of their legal reasoning must be tempered by an awareness that too much change too fast will destroy the public’s respect for the Court and the rule of law. Recent history raises doubt that any will have even a moment’s hesitation.