A quick comment on Chief Justice John Roberts’s concurrence in Dobbs. As many expected from oral argument (including me) and leaks of the deliberation in May, Chief Justice Roberts sought in vain for a middle ground that would uphold the Mississippi law banning abortion after fifteen weeks with certain exceptions, but that would not overrule the basic right to an abortion found in Roe and Casey. Roberts’s concurrence in the judgment stuck to his lonely compromise position. I hoped that Roberts might at least offer some basis for why a fifteen-week ban would be permissible without a wholesale review of Roe.
Continue reading “John Roberts’s Dobbs opinion: discretion, restraint, rules”Month: June 2022
Justice Alito and constitutional relevance
The Supreme Court has overruled its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. The decision in Dobbs v. Jackson Women’s Health, penned by Justice Samuel Alito, and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, makes it clear that Roe and Casey were wrongly decided and protected rights not actually deeply rooted in the history and tradition of the United States. As a result, the Supreme Court has held that the states are free to craft for themselves regimes of abortion regulation, subject to rational basis review.
When Justice Alito’s draft was leaked, I expressed concerns about what I have called “Little Giant Constitutionalism,” referring to Stephen Douglas’s position in the Lincoln-Douglas Debates. The Dobbs opinion takes a contentious national issue and makes it…a contentious national issue. This is by no means a problem if you are a positivist or a relativist. If, however, you believe that there are principles of the natural law at stake, putting them to a vote is hardly a welcome prospect. But that is as good, it seems, as it is going to get under Dobbs. As Adrian Vermeule has noted, Justice Kavanaugh, who seems to be the critical fifth vote in the Dobbs opinion (remember that Chief Justice John Roberts concurred only in result and scolded the majority for going as far as overturning Roe and Casey), was at pains to distance himself from the Fourteenth Amendment personhood argument.
Continue reading “Justice Alito and constitutional relevance”How to Read Dobbs
Dobbs should, first of all, be celebrated — loudly, and without feeble misgivings about the disappointment of the supporters of abortion rights. It partially (and I stress partially) cured a kind of wound in our constitutional law that had festered over time, infecting and distorting not only substantive constitutional law, but also adjacent and ancillary bodies of law such as standing, procedure and remedies. Justice Alito’s opinion for the Court is entirely convincing that, taken on its own terms, the pompous claim of the controlling joint opinion in Planned Parenthood v. Casey — that the Court could call the contending national parties to settle their controversy — had not been fulfilled. Indeed Casey perversely produced all the more conflict. Casey and Roe had to be overruled to restore the body of our constitutional law to health.
Continue reading “How to Read Dobbs”