The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Josh Blackman quotes a conservative 3L as suggesting that, if the Dobbs case doesn't overrule Roe, he or she might have to give up on originalism. I've heard sentiments like these before, and I have to say, they puzzle the heck out of me. Why would anyone upset by Dobbs conclude, "gosh, I'd better change what I believe the Constitution says about recess appointments and the Confrontation Clause"? What kind of views of the Constitution do you hold, if you'd go look for new ones based on what some robe-wearing politician-approved bureaucrats say?
Reaffirming Roe would be an extraordinary black mark for the conservative legal movement, which has wanted it overturned for decades. Ditto for the GOP administrations that campaigned on Court appointments and asked pro-lifers for their votes. But I don't understand how it'd be a black mark for originalism, if only because a theory is more than the group of people practicing it: there's a big difference between originalism and "Originalism Inc."
People can call themselves "originalists" and still be wrong about the original Constitution, just as they can call themselves "historians" and still be wrong about history. The theory isn't there to give us an easy twelve-step method for churning out right answers. It's there to explain what makes those answers the right ones. If you think originalism requires overturning Roe, and if it turns out that the Court's self-described originalists still won't do it, why conclude that originalism is lousy, and not that the Justices you're mad at are lousy originalists?
For comparison: if Roe survives, it'd be despite a 6-3 Catholic majority on the Court. Would it make sense for a Catholic to pick a new religion, just because of what some of the six Catholic Justices do in Dobbs? That'd seem really strange to me; so would picking new views on the content of the law.