This Article concerns the phenomenon of “statutory backup rights,” or statutes that provide protections parallel to constitutional rights that are believed to be at risk of judicial abrogation. Proposals for backup rights gained attention in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which not only eliminated the constitutional right to abortion but called into question some other constitutional rights as well. Shortly after Dobbs, Congress enacted a limited statutory backup for same-sex marriage. States have created backup rights across a range of topics, some of which appeal mostly to those on the right and others of which appeal mostly to those on the left.

This Article considers a cluster of legal issues concerning the design of statutory backup rights, their pros and cons as mechanisms for protecting rights, and their broader effects on the legal system. It explains how the enactment of a statutory backup can keep the constitutional right away from the courts and, if the courts do take up the constitutional right anyway, bolster the constitutional right on the merits. The bolstering could occur either by revealing the strength of public sentiment or through mechanisms of legislative constitutionalism. Regarding the latter, a backup statute asks little of the judiciary in that it involves merely “confirmatory legislative constitutionalism,” that is, a legislative judgment that aligns with current judicial doctrine and seeks to reinforce it against change.

The Article concludes by addressing how backup rights fit into debates over the role of the courts. Backup rights do not directly challenge the judiciary’s authority, and in that regard they are not a type of court reform at all, but backup rights do decenter the courts as sources of rights. A practice of enacting statutory backup rights can bring legislatures and statutory rights into the foreground, such that they are no longer merely backups after all.