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07/29/2022

Joel Alicea on Dobbs
Michael Ramsey

Though I have further thoughts on West Virginia v. EPA, I'm also shifting to some posts on Dobbs v. Jackson Women’s Health Organization, which calls for some dispassionate evaluation from an originalist perspective.  To begin, here's Joel Alicea (Catholic) in City Journal: An Originalist Victory - The Supreme Court’s Dobbs ruling is a tremendous success for the constitutional theory around which conservatives rallied for nearly half a century.  From the introduction:

To acknowledge this achievement [of overturning Roe and Casey] is to acknowledge the constitutional theory around which the coalition that brought it about rallied for a half-century: originalism. It was originalism that the pro-life movement adopted after Roe and supported through the confirmation defeat of Robert Bork; the attempted defeats of Clarence Thomas, Samuel Alito, and Brett Kavanaugh; and the setback of Casey. The goal of overruling  Roe and Casey bound the conservative political movement to the conservative legal movement, and originalism was their common constitutional theory. Dobbs thus had the potential—as I argued in an earlier essay—to exacerbate the tensions over originalism within the conservative legal movement. It would be viewed as the acid test of originalism’s ability to translate theory into practice, and there would be no avoiding the stakes for the conservative legal movement in the case: “complete victory or crisis-inducing defeat,” as I put it. We now know that it was a complete victory, and it was, in large part, originalism’s victory.

Yet over the last few months, two arguments have been made by some within the conservative legal movement calling that conclusion into question: one from originalism’s critics, the other from originalists themselves. The first argument is that Dobbs is not much of a victory since it returned the issue of abortion to the political process rather than outlawing abortion altogether. The second is that the Dobbs majority opinion is not, in fact, originalist in its methodology, with the implication that, even if Dobbs is a victory, it is not a victory for originalism. Both critiques, explicitly or implicitly, deny that Dobbs represents a triumph for originalism.

Both critiques are mistaken. Dobbs is, without question, a triumph for originalism and a vindication of the support given to originalism by the conservative legal and political movements since Roe was decided almost half a century ago....

And from later on:

The second critique comes from within originalism’s ranks and argues that Justice Alito’s majority opinion in Dobbs is not originalist in methodology. ... This analysis has the implication, sometimes stated by these critics and sometimes not, that Dobbs is not much of a triumph for originalism.

Before delving into this critique, it is important to understand that, for the reasons just discussed, Dobbs is a tremendous victory for originalism, even if the Dobbs opinion could be characterized as non-originalist in its methodology. For one thing, as Lee Strang has pointed out, as originalism has become the dominant theory at the Court, it has influenced how the justices approach decisions that are clearly at odds with originalism, such as Roe and Casey: “[O]riginalism exerts a gravitational effect that pulls errant doctrine back toward the original meaning.” Relatedly, originalism is the theory that made obvious to lawyers, judges, and the general public that the Roe and Casey decisions were insupportable as a matter of constitutional law, and it is the theory that formed the legal views of the justices who voted to overrule those decisions. Neither conventional conservative non-originalism nor common-good constitutionalism achieved any of those things.

The argument that Dobbs is a non-originalist opinion has been advanced by several commentators. The most sophisticated version of the critique comes from Lawrence Solum, widely considered one of the leading theorists of originalism. His views on any question like this must be taken seriously. Solum has not argued that, because he sees Dobbs as a non-originalist opinion, originalism does not deserve credit for the result. But since others have drawn that implication from critiques like his, it is worth addressing on its own terms....

...Thus, according to Solum, because Dobbs accepts a non-originalist substantive-due-process framework and uses the non-originalist Glucksberg test to analyze whether there is a right to abortion under that framework, it is a non-originalist opinion.

But that conclusion fails to account for several important points. ...