The Imagination Unbound: On the New Anti-Rights Trajectory of the U.S. Supreme Court

49 Pages Posted: 30 Dec 2022

Date Written: December 13, 2022


In the summer of 2022, the U.S. Supreme Court overruled an individual right for the first time in Dobbs v. Jackson Women’s Health Org. The Dobbs Court also suggested that several rights-affirming decisions including Loving v. Virginia, Griswold v. Connecticut, and Obergefell v. Hodges should be systematically reviewed to similarly determine their lasting effect, if any. The idea that decades-old precedent should be systematically reviewed by the Court to decide whether it should be overruled under the new Janus v. AFSCME balancing test is uncharted territory.

Using an ad hoc balancing test to systematize the overruling of longstanding decisions is the antithesis of stare decisis. Nevertheless, the U.S. Supreme Court cited its reasoning for overruling Abood v. Board of Education in Janus as if a decision to overrule one precedent could be precedential in the overruling of potentially all precedent. The circularity of making precedent of Janus’s anti-precedent was thematic in Dobbs. If stare decisis creates stability and predictability in the courts, this newly systematized ad hoc strategy will create the opposite.

The Court unwittingly emphasized this fact when it issued a contradictory decision in NYSRPA v. Bruen the day before Dobbs. In Bruen, the Court expanded the fundamental human right to bear arms by inventing a new right to carry concealed guns. The Court did this just over a year after a mob of pro-Trump protesters stormed the Capitol Building with AR-15’s, and only weeks after a rash of highly publicized mass shootings exploded across the United States. In actuality, contradictory as it may seem, Bruen and Dobbs came from the same anti-rights school of thought led by the January 6, 2021 coup mastermind John C. Eastman.

This article explains the neo-Hobbesian, anti-rights rationales that made Dobbs and Bruen the apparent cornerstone of the U.S. Supreme Court’s new anti-rights trajectory. This article will examine the anti-rights movement from the messy Trumpian version led by John C. Eastman to the more orderly purism of Cass R. Sunstein and Adrian Vermeule. The resulting analysis reveals the apparent endgame of these anti-rights activists to overwrite the rights-centered spirit of administrative law under Crowell v. Benson with a newly fashioned, and arguably misappropriated anti-rights spirit according to Wong Yang Sung v. McGrath.

Keywords: Dobbs, Janus, Bruen, human rights, hobbes, spirit of law, soul of law, crowell v. benson

JEL Classification: K39

Suggested Citation

Schroeder, Joshua, The Imagination Unbound: On the New Anti-Rights Trajectory of the U.S. Supreme Court (December 13, 2022). Hastings Constitutional Law Quarterly, Forthcoming, Available at SSRN:

Joshua Schroeder (Contact Author)

SchroederLaw ( email )

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Oakland, CA 94610
United States

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