How to Read Dobbs

Adrian Vermeule

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.

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A note on Dobbs

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“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . .” Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 5 (U.S. June 24, 2022). And with that, what had once appeared like an immovable feature of the American constitutional landscape passed into history. Much remains unclear, especially given the fact that Court chose to send the matter back to the states subject to rational basis review, and there is more to be said. In the coming days and weeks, Ius & Iustitium will post pieces from our regular writers—and others—approaching Dobbs from the vantage of the classical legal tradition. For now, however, this much is clear: Roe and Casey are no longer the law of the land. 

The outcome is not altogether surprising. The shocking leak of Justice Alito’s February 10 draft opinion at the beginning of May gave a clear indication that five Justices had voted to overrule Roe and Casey. However, other leaks shortly before the draft opinion was leaked suggested that Chief Justice John Roberts had been focusing his energy on finding a Justice or two to join a narrower concurrence, upholding the Mississippi law without overruling Roe and Casey. It now seems that Chief Justice Roberts’s efforts were unsuccessful, though his separate opinion implicitly confirms the efforts. Justice Alito’s draft opinion underwent significant changes between the February 10 draft and the June 24 final opinion, but the core of the decision remains the same. 

Justice Alito’s opinion points toward the Anglo-American legal tradition, following the analysis laid down in Washington v. Glucksberg, including authors well known to Ius & Iustitium readers, such as Henry de Bracton, the anonymous author of the Fleta, Sir Edward Coke, and Blackstone. There is, therefore, much to reflect upon in the Dobbs opinion specifically from the standpoint of the classical legal tradition—including some ground for critique. The other opinions—Justice Thomas’s concurrence, Justice Kavanaugh’s concurrence, Chief Justice Roberts’s opinion, and the joint dissent—likewise provide significant material for further thought and argument. 

And there will be time for all that. But today—some, emphasizing a religious-liturgical dimension, have noted that it is the concurrence of the feast of the Sacred Heart and the nativity of St. John Baptist—it is enough to say that, at long last, after the untold efforts of so many, Roe and Casey are no longer the law of the land. 

The Editors

Book Launch Cornucopia

Adrian Vermeule

The book launch for Common Good Constitutionalism took place last Thursday evening at the National Press Club. The run of show went as follows: (1) an introduction by Sohrab Ahmari; (2) my talk; (3) in-person responses from Judge Paul Matey, Jeff Wall, and Professor Patrick Deneen; (4) on video, a response from Judge Amul Thapar, who was unfortunately unable to attend in person; and (5) some thoughts by me in reply to each of the respondents. Unfortunately the program ran a bit long, so time did not permit questions from the audience. The program as a whole featured a genuine diversity of views, with Jeff Wall taking a rather libertarian perspective and Judge Thapar an originalist one.

This post includes, in order: (1) my written talk, which as inevitably occurs, differs slightly from the actual delivery; (2) an audio recording of the whole proceeding (barring a few words cut off at the beginning of Sohrab Ahmari’s introduction); (3) Judge Thapar’s video, posted separately because the audio quality of the recording of the whole may make it difficult for the listener to hear his remarks; (4) a written version of my reply to Judge Thapar in particular, again differing slightly from the actual delivery, and posted separately to make the discussion of Aquinas more accessible.

Please bear in mind that this was not a strictly academic event. These materials are informal and are posted in the hopes of advancing the debate. Enjoy! Continue reading “Book Launch Cornucopia” →

A notable new opinion from the heart of the classical tradition

Pat Smith

On May 25, 2022, the United States Navy-Marine Corps Court of Criminal Appeals (“NMCCA”) handed down an opinion in United States v. Dereck Tabor, No. 202100046. The case involves the unpleasant question of whether encouraging someone via text message to commit self-abuse while lying in bed next to a sleeping child constituted a lewd act upon the child for the purposes of Article 120b of the Uniform Code of Military Justice. See United States v. Tabor, No. 202100046, slip op. at 2–3 (N-M. Ct. Crim. App. May 25, 2022). Ultimately, under military precedent, this becomes a question of whether the acts were committed in the presence of the child, which, in Tabor, turns on whether the child was aware of the lewd acts. Id. at 5. The provisions at issue, which have been amended and restated several times since the promulgation of the UCMJ, have vexed the military courts since they were introduced in 1951. Judge Christopher Deerwester’s opinion for the Court admirably traces the statutory developments and the responses of the military courts over the last sixty years and comes to the conclusion that it is sexual abuse of a child to encourage someone to abuse herself while the child sleeps next to her. 

In and of itself, United States v. Tabor deals with lamentable criminal conduct by a member of the armed forces and a statute that has given the military courts no end of trouble. However, Senior Judge John Stephens’s separate concurrence is worthy of special attention. He begins by acknowledging that “we are supposed to use a textualist approach to statutory interpretation.” Id. at 42. But, in his view, textualism “has contributed to the confusion over the meaning and effect of Article 120b(c) . . . and whether it possesses some penumbric ‘awareness’ element.” Id. To “cut the modernist Gordian knot,” id., Senior Judge Stephens proposes returning to the classical legal tradition. Id. Looking to Adrian Vermeule’s Common Good Constitutionalism, Thomas Aquinas, and Blackstone’s Commentaries, Senior Judge Stephens proposes interpreting Article 120b from the perspective of the common good. See id. at 44–46.

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The Case of the Georgean Applicant

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As is well known, there was a significant divergence in the timeline sometime early in 2020. Experts have been struggling over the past two years to determine precisely how and why the Event took place, and we follow their studies with the same interest and concern that many very naturally share. During the time since the Event, the divergence between Timeline A (our own) and Timeline B has been revealed through certain irruptions, though the mechanism of the irruptions remains cloaked in mystery. The predictability of such irruptions is low: sometimes there will be several in a short period of time, followed by long stretches without any. One such irruption is a copy of what appears to be an opinion of Supreme Court of the Empire of Newgarth in a case called Patel v. Wreath, Attorney General. Our Timeline’s Supreme Court’s opinion in Patel v. Garland was recently handed down. It should be noted that—based upon some other objects that were part of the irruption—that the opinions in the Timeline B case were drafts, leaked by a clerk unhappy with the very concept of a split nondecision. Whether or not the Newgarth Patel opinion is complete or whether the circumstances under which it was released in either Timeline were altogether morally creditable, the opinion presents Timeline A lawyers and judges with an unparalleled opportunity to consider the alternative approaches taken in Timeline B. (The name “Empire of Newgarth” and other differences reflected in the opinion suggest that the consequences of the Event are perhaps even more far-reaching than even the most alarmist experts previously thought; however, this is a law blog not an Event Studies or Event Physics blog and we leave those matters to the experts.) 

The Editors

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Second thoughts about a first look

Pat Smith

The leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization is unprecedented. The mere fact of the leak is unprecedented, though perhaps not surprising since ready access to abortion has become something more than a legal question to many lawyers, activists, and politicians. Norms, no matter how cherished or long held, yield in emergencies, and one suspects that a certain kind of advocate believes this is an emergency. Scarcely less shocking than the leak, however, is the fact that the draft opinion itself indicates, at least as a preliminary matter, that there are five votes to overturn Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the twin pillars of the legal abortion regime in the United States. 

Justice Alito’s draft was dated (at least for the purposes of circulation) February 10, 2022 and is marked “1st Draft.” Considering that Dobbs was argued at the beginning of December 2021 and the conference on the case held shortly thereafter, I think it is safe to assume that it represents a fairly early draft of the opinion, written before concurrences and dissents were circulated. The Dobbs opinion probably has developed in some dimensions since February 10. Nevertheless, one imagines that the broad outlines of the opinion will remain substantially the same, barring a change in votes or some other exigency. It is only slightly premature, I think, to conduct a close analysis of the Dobbs draft as though it were the opinion of the Court.

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A Victory for Originalism?

Yves Casertano

The leaked draft majority opinion in Dobbs v. Jackson Women’s Health Organization suggests that the Supreme Court is poised to finally overturn Roe v. Wade (1973). While the fight for legal protection of the unborn will continue and even intensify, it is undeniable that the demise of Roe would be an improvement over the status quo and a true victory—at least in the “end of the beginning” sense. Who deserves credit for this victory? First and foremost, the pro-life movement. Instead of retreating into obscurity following Roe, pro-lifers grew a movement, captured a political party, and forced it to make abortion a top priority in the appointment of judges. Credit is also due to the mainstream conservative legal movement, which includes and is led by many committed pro-lifers for whom overturning Roe v. Wade was always a top priority. Despite its many shortcomings and failures (which this blog routinely highlights), there can be no denying that the conservative legal movement may have finally delivered the result it has promised for decades. But what credit do we owe originalism, the official ideology of the conservative legal movement? Based on Justice Alito’s draft majority opinion, the answer seems to be nothing. Originalism will not have played any meaningful role in overturning Roe.

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No Fence to Sit On

Jacob Neu

I had been working on a post addressing a new abortion policy bill in Connecticut, which is headed to the governor’s desk for signature sometime this week, when Politico published the leaked first draft of Justice Alito’s opinion last night. Regarding that news, I will make only two comments. First, while it reflects a final holding (overruling Roe) that I believe most if not all contributors to I&I support, any opinion is not official until promulgated by the Court itself, and I’m not going to comment on its substance. Second, the leak should be seen for what it is—an attempt to interfere with the normal processes of an institution and to galvanize public opinion and legislative and executive officials. The leak should be investigated and the individual sanctioned appropriately.

Nevertheless, the public reaction to the draft opinion was predictable in the emotional response it has generated and the calls for court-packing, impeachment, and other politically punitive actions. That reaction points to a key conclusion—once Roe nationalized abortion policy, there is no easy way for the Court to extract itself from that issue. The great twentieth century American moral philosopher Johnny Cash once said, “How well I have learned that there is no fence to sit on between heaven and hell. There is a deep, wide gulf, a chasm, and in that chasm is no place for any man.” A final decision returning abortion policy to the states is not the end—as Connecticut shows, it is only the beginning of a new phase.

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Scissors, Paste, and Aquinas

Pat Smith

I understand altogether the desire of certain originalists to elevate their jurisprudential preferences to the sphere of morality. It is one thing when conservative donors want originalism to be right; it is another thing when God wants originalism to be right. Likewise, the moral dimension has certain charms when deployed against critics of originalism. Today, criticism of originalism must be treated in fundamentally academic ways: through the marshaling of evidence and argument. If originalism can be lacquered to a moral shine, then one may dispense altogether with the laborious work of answering one’s critics. To oppose originalism is simply to be immoral, and sin does not require the same work. For example, no one feels the need to argue against the sin of Onan; condemn, deplore, rebuke—but not argue. 

Heretofore the Church has been unwilling to make a dogmatic proclamation in favor of the originalists—the Munificentissimus Deus template no doubt having been mislaid in the shuffle of Predicate Evangelium—leaving them to their own devices. Catholic University of America law professor Joel Alicea is the latest moralist of the originalists who has attempted to supply the missing condemnation, writing a paper that soon will be published in the law review of the second-oldest law school in Indiana. Already the professional originalists have found not merely a moralist but a true champion. Professor Alicea’s essay has been featured prominently by such publications as National Review. This, too, is understandable. Adrian Vermeule has been all too troublesome for the professional originalists (and, one suspects, their donors have had awkward questions about the younger generations). Professor Alicea finds a moral basis for originalism. At last, to the sin of Onan, the originalists may add the sin of Vermeule. At long last, they may condemn, deplore, and rebuke—but not argue.

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Pickwickian Originalism

Adrian Vermeule

We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.

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