The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A current 3L, and FedSoc officer sent me this message after reading my post about Dobbs:
I really enjoyed your article in the Volokh blog about the FedSoc Convention's approach to Dobbs. Unfortunately classes didn't allow me to attend—it'll happen someday.
Reading the article, I think there's merit in all those positions, and they're not mutually exclusive either. I strongly identify with Camp #1, and I think Camp #3 is the most likely. The Court will probably strike down the Mississippi law while engaging in a bit of trickery to avoid actually affirming Roe and Casey. But in reality, it will be a reaffirmation.
This of course means Camp #1 is a potential reality. I'm reminded of the discontented questions I frequently field from my right-wing non-lawyer/law student friends. "Conservatism won't even defend itself; why should I defend it?" In this case, "it" is usually some arguably conservative politician, etc. But I must confess to being somewhat defenseless against the argument. "FedSoc judging"—if I can call it that—seems to be largely a form of radical judicial deference and abstention. That's fine—excellent, even—in the abstract. The problem is, instead of deferring to the original meaning, stare decisis be damned, it's all too often deference to the status quo. As a result, all we've accomplished is to build a bulwark around all the injustices and wrongs that FedSoc was created to right.
I know this is painting with a broad brush, and there are many, many good judges who do not see it that way (God bless Justice Thomas and his Gamble concurrence), but I fear that it's too few to matter. I only hope I'm wrong. Otherwise I feel like I'll be forced, kicking and screaming, to give theories like "common good constitutionalism" a real hard look. For if originalism does not actually preserve the original Constitution, then I have to wonder where its value lies.
Great article as always. Forgive my ramblings…
This message is representative of what I've been hearing. There are many, many consequences for originalism, if Dobbs reaffirms Roe and Casey. Bostock was just a warning shot. Dobbs could severely wound the movement I care very deeply about, and indeed the rule of law more broadly if conservatives seek other channels for reform.