Breyer, Sotomayor, and Kagan, JJ., dissenting
that it is happy to pick and choose, in accord with individual preferences. See ante, at 32, 66, 71–72; ante, at 10 (Kavanaugh, J., concurring); but see ante, at 3 (Thomas, J., concurring). But that is a matter we discuss later. See infra, at 24–29. For now, our point is different: It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. The second Justice Harlan discussed how to strike the right balance when he explained why he would have invalidated a State's ban on contraceptive use. Judges, he said, are not "free to roam where unguided speculation might take them." Poe v. Ullman, 367 U. S. 497, 542 (1961) (dissenting opinion). Yet they also must recognize that the constitutional "tradition" of this country is not captured whole at a single moment. Ibid. Rather, its meaning gains content from the long sweep of our history and from successive judicial precedents—each looking to the last and each seeking to apply the Constitution's most fundamental commitments to new conditions. That is why Americans, to go back to Obergefell's example, have a right to marry across racial lines. And it is why, to go back to Justice Harlan's case, Americans have a right to use contraceptives so they can choose for themselves whether to have children.
All that is what Casey understood. Casey explicitly rejected the present majority's method. "[T]he specific practices of States at the time of the adoption of the Fourteenth Amendment," Casey stated, do not "mark[] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects." 505 U. S., at 848.[1] To hold otherwise—as the majority does today—“would be inconsistent
- ↑ In a perplexing paragraph in its opinion, the majority declares that it need not say whether that statement from Casey is true. See ante, at 32–33. But how could that be? Has not the majority insisted for the prior 30 or so pages that the "specific practice[]" respecting abortion at the time of the Fourteenth Amendment precludes its recognition as a constitutional right? Ante, at 33. It has. And indeed, it has given no other reason for overruling Roe and Casey. Ante, at 15–16. We are not mindreaders, but here is our best guess as to what the majority means. It says next that "[a]bortion is nothing new." Ante, at 33. So apparently, the Fourteenth Amendment might provide protection for things wholly unknown in the 19th century; maybe one day there could be constitutional protection for, oh, time travel. But as to anything that was known back then (such as abortion or contraception), no such luck.
