Melissa Murray: Top Court Lays Waste to Decades of Precedence

Testifying before the U.S. Senate Judiciary Committee at Brett Kavanaugh's Supreme Court confirmation hearings in 2018, legal expert Melissa Murray predicted that if confirmed, the nominee would provide the fifth vote to overturn Roe v. Wade. In June 2022, Justice Kavanaugh did just that as the court ended the constitutional right to abortion in Dobbs v. Jackson Women's Health Organization, giving each state the right to restrict and even ban abortion.

On Tuesday evening, Murray, a New York University law professor and frequent MSNBC contributor, told about 100 people at Lehigh's 43rd Annual Tresolini Lecture at Neville Hall that the Dobbs decision may be a harbinger of future court rulings that dismantle other reproductive freedoms and the even the right for same sex couples to marry.

Murray said that writing in Dobbs, Justice Samuel Alito claimed that the 1973 Roe v. Wade decision "preempted debate and state legislative deliberation on the issue of abortion rights. Justice Alito then went on to insist that democratic deliberation was and should be the proper mechanism for resolving competing interests at stake in the abortion debate."

"Justice Alito's invocation of democracy and democratic deliberation had the undeniable rhetorical power in that opinion," she said. "It allowed the Dobbs majority to lay waste to decades worth of precedent while rebutting charges of judicial overreach ...."

But, Murray said, the argument of "disrupted democracy" emerged years after Roe was decided as a way of discrediting the ruling and then toppling Roe and the 1992 decision Planned Parenthood v. Casey which had upheld the right to abortion but allowed more restrictions on access.

"As I explain, although Dobbs traffics in the rhetoric of democracy, in fact its conception of democracy is both internally inconsistent and extraordinarily myopic," she said.

"The majority's embrace of democracy not only shields the overruling of Roe and Casey from claims of judicial activism and overreach, but it may eventually lay the groundwork for the vindication and protection of fetal personhood and the complete and total abolition of abortion in the United States," Murray said.

If the Supreme Court can ignore stare decisis, which is adhering to precedent, in overturning Roe, then what's to prevent the conservative majority from overturning the court's Obergefell ruling which legalized same-sex marriage? she asked.

Murray pointed out that like Roe, other landmark Supreme Court decisions such as Brown vs. Board of Education, which outlawed racial segregation in schools, were not universally popular.

"It's hard to believe today, but in 1954 when it was decided, Brown was controversial because the court had invalidated laws that were enacted and favored by the majority of Southerners," she said.

Responding to questions from the audience, Murray said she hopes she is wrong to be pessimistic about the future of legal abortion and that she is encouraged by the way the Dobbs decision has fueled voter engagement. But pro-choice voters face an uphill battle due to gerrymandering of many states' legislative district maps that are drawn by the party in power to remain in power, she said.

Asked about the Supreme Court's recognition of an individual's right to privacy which informed the 1973 Roe decision, Murray outlined its history.

"This idea of a right to privacy was first articulated by the Supreme Court in 1955 in a case called Griswold vs. Connecticut, which is about contraception use," she said. "So Griswold allows for contraceptive use, which had been up until this decision a crime, like you could go to jail for using birth control."

Before wrapping up, Murray touched briefly on the Supreme Court's current scandals of some justices accepting expensive trips and other luxury gifts from billionaires that the justices did not disclose publicly until ProPublica published stories about them.

"The court is not like Congress," she said. "It doesn't have the power of the purse. It's not like the president. It doesn't have the power of the sword. The only thing that makes us obey the court and what it decides is our sense that the court is doing law and not politics."

Prior to joining New York University, Murray was on the faculty of the University of California, Berkeley, School of Law. The daughter of Jamaican immigrants, Murray graduated from Yale Law School in 2002 and clerked for Supreme Court Justice Sonia Sotomayor while Sotomayor was on the U.S. Court of Appeals for the Second Circuit.

Murray has written for the Washington Post, The New York Times and Newsweek and provided commentary on such media outlets as PBS, CNN, MSNBC, NPR and ABC. She is co-host of the Strict Scrutiny podcast.

The Tresolini Lecture is named for the late government professor Rocco J. Tresolini, who was the first chair of Lehigh's government department and received the Hillman Faculty Award in 1964 for excellence in teaching and research. Several members of the Tresolini family attended Tuesday's lecture and were recognized for their support.

--Story by Margie Peterson