The Volokh Conspiracy

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More on Dobbs, Originalism, and Conservative Legal Thought

An observation.


I was very interested in the posts by Josh Blackman and Stephen Sachs about possible outcomes in Dobbs and what they might say about originalism and/or the conservative legal movement.  I wanted to add an observation about Josh's post, too.

If Josh's observations about current attitudes are right, it's interesting to contrast perspectives now from perspectives just a few short years ago.  A few years ago, the prevailing narrative was that originalism was primarily a theory of what the right answer should be as a first principle—recognized, at least in the past, as a separate question from what a Court should do when precedents on the books were different. As Marc DeGirolami put the point, originalism was understood as a theory of interpretation, while stare decisis was understood as a theory of adjudication.  Originalist theorists then pondered what the relationship between the two should be, without an obvious consensus view emerging.

If Josh's observations are accurate, that perspective has been dropped (at least among attendees he spoke with) in favor of a transactional view: The point was to get to a certain result, and the only question is whether the result will be achieved or if some  illegitimate barrier (the liberal media, etc.) might get in the way.  Perhaps this is the difference in perspective between academic theorists and the practitioners who most populate the national conference.  Or perhaps it's the difference between what gets said before the Court has new members that make a goal possible versus what gets said after that.  I don't know.  But it seems like a notable shift.