Now, to be honest, this isn't a new topic; notably, FDR was furious with SCOTUS:
From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote to invalidate almost all of the New Deal. They were referred to in the press as “the Four Horsemen,” after the allegorical figures of the Apocalypse associated with death and destruction. In the spring of 1935, a fifth justice, Hoover-appointee Owen Roberts—at 60 the youngest man on the Supreme Court—began casting his swing vote with them to create a conservative majority. During the next year, these five judges, occasionally in concert with others, especially Chief Justice Charles Evans Hughes, struck down more significant acts of Congress—including the two foundation stones, the NRA and the AAA, of Roosevelt’s program—than at any other time in the nation’s history, before or since. In May 1935, the court destroyed FDR’s plan for industrial recovery when, in a unanimous decision involving a kosher poultry business in Brooklyn, it shot down the blue eagle. Little more than seven months later, in a 6 to 3 ruling, it annihilated his farm program by determining that the Agricultural Adjustment Act was unconstitutional... Fury at the court intensified when, in its final action of the term, it handed down a decision in the Tipaldo case. Until that point, defenders of the court had contended that the justices were not opposed to social legislation; the jurists merely wanted such laws to be enacted by the states, not the federal government. But early in June 1936, the court, by 5 to 4, struck down a New York state law providing a minimum wage for women and child workers.
FDR was unhappy that the court had a narrow interpretation of the Commerce Clause and feared SCOTUS might strike down the Social Security Act and the Wagner Act. He of course could try to amend the Constitution to enable his legislative goals. But he thought it would be faster and easier to expand SCOTUS to guarantee a progressive majority. This plan was scuttled by the "switch in time saved nine" In essence, swing voting Justice Owen Roberts abruptly switched his vote in sustaining a Washington state variant of the Tipaldo case: West Coast Hotel Co. v. Parrish. In addition, one of the 4 conservative Justices (Justice Van Devanter) retired giving FDR another vote on the court.
[As an aside, with respect to state mandates, like caps on NY baker work hours or minimum wage laws, I oppose such economically illiterate, unfair infringements on individual economic liberties. For example, a young, inexperienced worker may be willing to trade off starting wage for fungible work experience in the long run. The issue I have with these SCOTUS decisions is not in the results so much as the process. Since when does the Constitution allow for federal authorities, legislative, executive or judicial, intervene on state laws? These should be decided by state courts, not federal ones. This is one of the reasons I often clip Brion McClanahan in my daily blog; he makes persuasive cases in particular against the incorporation doctrine referencing the 14th Amendment. I'll sometimes write in favor of the merits of cases, e.g., Colorado bakers not baking "gay wedding" cakes, the Washington state high school football coach's post-game praying on the field, and the NY "prove to us your need for open carry" gun laws, but not necessarily their filing in federal courts.]
For the most part, SCOTUS has since accommodated Big Government and progressive social policies, including but not restricted to the social welfare net, government health care, civil rights, contraception, abortion, and "gay marriage". And distrust of conservative jurists has not lessened since FDR: look at the resistance against Rehnquist becoming Chief Justice, the bitter personal attacks against Bork, Thomas, Estrada, and Kavanaugh. I think every GOP-nominated justice since Alito has had over 40 Dem senators voting against confirmation when many prior votes were overwhelmingly bipartisan.
Technically by the end of Bush's terms, the conservative side had 5 jurists although Chief Justice Roberts and Justice Kennedy sometimes sided with the 4 liberal justices, e.g., in the ObamaCare and gay marriage decisions. Obama replaced 2 liberal justices, but the biggest kerfuffle occurred in the last year of Obama's tenure with the leading conservative jurist Scalia unexpectedly died, giving the progressives a rare opportunity to regain a firm majority. McConnell, the GOP majority leader, balked at confirming the Garfield nomination in an election year, echoing the same "Biden rule" espoused in 1992, when GHW Bush lost reelection. (As I have tweeted multiple times, generally speaking justices nominated in an election year are most likely confirmed when the Senate and White House are controlled by the same party.) Even to the present, partisan Dems continue to vent at how Obama's nomination was "stolen" by the GOP.
Trump replaced 2 conservative jurists (including Kennedy), but the real opportunity was when liberal icon RBG, who had been in frail health for years, died in Trump's election year, and conservative Barrett was confirmed before the election, leading to outrage and charges of hypocrisy from the Dems. This led to a suspected 6-3 conservative majority, meaning the progressives would need more than a swing vote from Roberts. The progressives obsessed over the shaky Roe v Wade precedent (which even pro-abort RBG acknowledged). Pro-abort GOP senators Collins and Murkowski sought to get assurances Trump's appointees wouldn't overrule the Roe/Casey precedent. That's self-serving scapegoating rubbish.:
Senators commonly ask questions that are intended to enable the Senate "to evaluate not only the nominees' qualifications, but also their beliefs and probable voting patterns on the Court." Such questions frequently include inquiries "about specific cases, judicial philosophy, and attitudes on issues that are likely to come before the Court. However, judicial nominees have often refused to answer certain questions at their confirmation hearings—or have volunteered only perfunctory responses—claiming that fully answering certain questions could violate various ethical norms governing judges and judicial candidates or impair the independence or fairness of the federal judiciary....judges and bar associations have promulgated a variety of "canons" of judicial ethics—that is, self-enforcing, aspirational norms intended to promote the independence and integrity of the judiciary. Among other things, these canons provide nominees with general guidance regarding which sorts of statements by judges and judicial candidates are appropriate or inappropriate. As discussed below, most commentators agree that the canons discourage federal judicial nominees from pledging to reach predetermined results in future cases.
A judicial nominee could pay lip service to Roe/Casey being a multi-decade precedent and agree that precedents (stare decisis) are important in deciding cases without "perjuring" himself in Senate testimony. The very idea that a nominee could buy a lifetime appointment to SCOTUS by promising to protect certain precedents is intrinsically corrupt, violating the very concept of judicial independence. In fact, the Library of Congress has maintained a list before Dobbs of 232 precedents overturned In response to AOC's polemical charge that the Trump nominees "lied under oath":
[N}one of the five justices explicitly stated they wouldn’t overturn the longstanding precedent, even as they emphasized it was settled precedent...[L]egal experts say it’s unlikely the justices have actually lied under oath. “To me, their careful lawyerly phrasing was, itself, a demonstration that they were prepared to overturn Roe,” Northeastern University law professor Dan Urman told the university’s newspaper, and Columbia University law professor Katherine Franke told the Guardian that even if justices said Roe was “settled law,” “What it means is that that’s a decision from the Supreme Court, and I acknowledge that it exists. But it doesn’t carry any kind of significance beyond that.”
Pro-aborts on Twitter have vowed to impeach Dobbs' majority justices overturning Roe/Casey. Only one SCOTUS justice (Samuel Chase) has ever been impeached (1805), and he was acquitted. It is politically impossible for the Dems to win a Senate super-majority to convict any of the Alito opinion justices, never mind get a likely GOP majority in the House post midterms to impeach.
I'm not going to go into the specifics of the Dobbs decision itself, other than to note that as Alito argues there's no reference to abortion in the Constitution and in fact abortion was implicitly (common law) or explicitly (by statute) restricted in all the states (the latter, by 1910). There has been considerable discussion about the judicial reasoning underlying the assertion of so-called constitutional rights to privacy (Griswold), abortion, and gay marriage (Obergefell). Alito makes clear that his Dobbs opinion is about abortion (returning authority to the states) is no domino affecting other SCOTUS decisions. Clarence Thomas in a separate opinion did attack a common thread of the judicial construct of substantive due process, "the notion that there are rights implied by the Constitution, such as the right to marry without restriction or the right to use birth control". Note that Thomas wasn't necessarily arguing the reversal of the decisions, but the reasoning; for example, the alternative grounds of equal protection in dealing with interracial marriage.
So now we are seeing the Dems trying to politically weaponize the Dobbs decision by what I call "codifymania". They want to codify Roe, Griswold, and Obergefell into federal law.
I've made it clear in tweets and posts I think the idea of codifying Roe right after SCOTUS decided there is no constitutional right to abort is itself unconstitutional. The Congress has enumerated powers and the 10th Amendment recognizes the primacy of the state in terms of police power and health regulation. I think it's a lock that SCOTUS would declare any Roe codification unconstitutional. The only way to get a right to abort in the Constitution is to pass a constitutional amendment, which would require a super-majority in both chambers of Congress and a super-majority ratification by states, none of which are politically feasible.
As to the other two issues, I oppose them, not on their merits but on the grounds of federalism as discussed above: there is no constitutional authority for the federal government to mandate regulatory standards on states.
I really don't see movements (like the pro-life movement over the past 5 decades) for reinstating anti-miscegenation laws or for outlawing contraceptives or gay marriage. A majority of fertile American women and/or their partners use pregnancy-preventive technology; I don't have an issue with bodily autonomy up to the fact of conception, when I think there are competing rights, including a fundamental right to live. I think a woman has the right to choose sterilization if she doesn't chose the opportunity of motherhood. Personally, I would never have married a woman who wasn't willing to bear our children, but I wouldn't impose those preferences on others. I see the fact of contraceptives as a political fact of life. As a libertarian, even as a pro-life libertarian, I am opposed to restrictions on contraceptives. I seriously doubt any politician today could win office on a platform of restricting contraceptives. Most couples are aware of the financial and lifestyle commitments to raising a child. So I see this codification more as pushing on a string nonsense, even disregarding the constitution issue of federalism.
Finally, on the question of "gay marriage". As a libertarian, I think marriage should be privatized. The issue here is that marriages in America have been regulated by the states, not by the federal government, and there is no constitutional basis for the Congress to overwrite state laws. The kerfuffle never had to deal with regulating gay relationships, but on overwriting traditional marriage laws, which evolved over human history as a foundation of procreation and family. Procreation is based on the scientific basis of heterosexual sex, and children are society's means of self-preservation. We conservatives worry about the unintended consequences of experimenting with the traditional constructs of marriage and family.
As for the <=4% of the American people who identify as LGBT, most states were not banning relationships among them. Even in my salad days as a young straight conservative, I had a live-and-let-live philosophy. I think 2 or 3 of my 21 nephews and nieces are gay (they didn't "come out" to me, but I've seen pictures of couples), and I want them to have happy lives.
I've seen polls showing up to 70% of the American people support gay marriage. Even a media conservative like. Guy Benson (who himself is a married gay man) is saying, we've come a long way over the past decade of gay marriage I think, like contraception, this has reached a point of no return. Even if a state were to attempt to revert to old marriage laws, you have complications like a population of people who were married under existing laws, you have marriage reciprocity laws, etc.
So I see this codifymania as more political posturing, not serious public policy. Codification means nothing from a policy point of view; it doesn't validate nebulous federal constitutional rights. What they are really trying to do is to force GOP senators into politically unpopular votes on the record
