Why Justice Sotomayor’s rare reference to Dobbs may be a warning from liberals

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Since the Supreme Court reversed constitutional abortion rights two years ago, the conservative majority has avoided referring to that decision while dissenting liberals have at times invoked it in rebuke or to warn of other rights that may fall.

Ahead of the dramatic final week of the current session, liberals on Friday fired a startling new warning shot in what was otherwise a low-profile dispute over a Salvadoran husband’s immigrant visa.

Justice Sonia Sotomayor cited the 5-4 decision in Dobbs v. Jackson Women’s Health Organization as she asserted the majority was threatening marriage rights, particularly same-sex marriage as established in the 2015 case of Obergefell v. Hodges. Liberal Justices Elena Kagan and Ketanji Brown Jackson joined the dissent.

The Dobbs majority had asserted that its elimination of abortion rights “does not undermine … in any way” other entrenched rights, such as those involving contraception or marriage, Sotomayor wrote. Despite that assurance, “the Court fails at the first pass.”

As the dueling sides spoke past each other, there may have been a larger message of liberal frustration and despair. That could reflect what the liberal justices know is coming in cases soon to be announced. It could also reflect foreboding for the next set of issues that relate to same-sex marriage, including those intersecting with Dobbs, such as in vitro fertilization and other reproductive interests.

Justice Amy Coney Barrett, who wrote the 6-3 decision in the visa case Friday, deemed Sotomayor’s dissenting opinion an overreaction to a straightforward immigration dispute, which landed before the justices on appeal by the Biden administration.

“The dissent never addresses the actual issue in this case, which is whether the Judiciary has any authority to review visa determinations made by the State Department,” Barrett wrote. “Instead, the dissent chooses the rhetorically easier path of charging the Court with endangering the fundamental right to marriage. To be clear: Today’s decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right.”

The case may indeed be confined to the immigration realm. Yet, the right-wing pattern of diminishing individual rights lurks in the background. And the liberals’ defiant statement may foreshadow divisions this week as the justices try to complete their 2023-24 session.

Among the cases to be announced as soon as Wednesday is a significant test of access to abortion. That dispute from Idaho centers on a federal law intended to ensure emergency room treatment for people in need. The case tests whether in states that now ban abortion, the law would cover women requiring the procedure due to serious complications.

The case will mark the high court’s first substantive action on abortion access since its Dobbs decision, issued on June 24, 2022. The ruling overturned the 1973 Roe v. Wade milestone and allowed states to begin outlawing abortion.

Other cases to be decided in the next few days include those arising from the actions of former President Donald Trump after the 2020 election, notably whether he should be immune from criminal prosecution related to his efforts to overturn the election results.

Another pending dispute may reverse a 40-year-old case, Chevron USA v. Natural Resources Defense Council, which gave US agencies considerable latitude to enforce regulations, for example, over the environment and public health. That precedent has been a target of the business community, as well as conservative justices.

Turning an immigration case into a ‘broad holding on marriage’

Reversal of Roe v. Wade, a goal sought for decades by the anti-abortion movement but unachievable until the appointment of three Trump justices, immediately unsettled reproductive care and has since dominated cultural and political spheres. Dobbs has ignited new debate over reproductive issues, including in vitro fertilization, and remains a flashpoint for the 2024 presidential election.

As much as it has permeated American life, Dobbs has been rarely cited at the high court, especially by the conservative justices who made it the law. When liberals have quoted from their dissent in the case, it has mainly been to admonish the majority’s approach to precedent.

Last year, for example, when the conservative majority reversed another milestone that dated to the 1970s (the Bakke decision that allowed racial affirmative action in college admissions), the three liberals invoked the Dobbs dissent to condemn another “reckless course.”

What they wrote Friday, however, ratcheted up the rhetoric and could be a clarion call for what they see on the horizon for substantive rights, if not in the next few days, then in upcoming sessions.

The visa case, which had come to the justices with comparatively little national attention, was brought by Sandra Munoz, who argued she had a constitutional liberty interest in a consular officer’s denial of a visa for her husband.

Immigration law bars anyone an officer believes would engage in “unlawful activity,” and Munoz and her husband thought, according to the record in the case, he was rejected because he was suspected of membership in the MS-13 criminal gang. (He has denied affiliation with MS-13 or any other gang.)

The constitutional question was whether a US citizen has a fundamental liberty interest in their noncitizen spouse being admitted to the United States. (A lower federal court, the California-based 9th US Circuit Court of Appeals, had ruled that a constitutionally protected liberty interest existed in such situations.)

As Barrett’s opinion reversed the 9th Circuit, she relied on the federal government’s long-standing authority to decide the admission and exclusion of noncitizens. Then, using a 1997 case as a touchstone, she pointed to the absence of a “history and tradition” of any right to bring a spouse into the country.

To liberal dissenters, Barrett’s approach to any possible marriage right based on the 1997 case, rather than the 2015 Obergefell case, turned what could have been a narrow procedural decision into “a broad holding on marriage.”

Sotomayor said the majority was making “the same fatal error it made in Dobbs” as it weighed the liberty interest at stake.

Rather than adopting a legal approach “that this Court has used in discussing the fundamental rights of marriage and intimacy,” Sotomayor noted, the majority employed a less protective framework from the 1997 case of Washington v. Glucksberg, which tested (and rejected) a constitutional right to physician-assisted suicide.

“Almost 10 years ago, this Court vindicated the expansiveness of the right to marriage,” Sotomayor emphasized Friday before highlighting the individual lives affected: “It upheld the right of James Obergefell and his terminally ill husband, John Arthur, to have their marriage from Maryland recognized in Ohio. Rejecting the idea that Ohio can erase Obergefell’s marriage to John Arthur for all time by declining to place Obergefell as the surviving spouse on Arthur’s death certificate, this Court reasoned that marriage is a right older than the Bill of Rights.”

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