Posts on Dobbs

A compendium of my writings on the case.

Over the past nine months, I have written more than 40 posts on Dobbs, as well as the S.B. 8 cases. No comment on whether any of my ideas are viable. Here, I will list them as a compendium.

1. What is going on with Dobbs v. Jackson Women's Health Organization? (Updated)
2. The Court Punts by Granting Cert in Cameron v. EMW Women's Surgical Center
3. The Chief Justice's Last Bulwark of Moderation: Limiting and Reframing Questions Presented
4. What Would An Actual 6-3 Conservative Court Have Done This Past Term?
5. Noah Feldman Indulges in Brett Kavanaugh Fan Fiction on Dobbs
6. Chief Justice Roberts's Long, Longer, and Longest Games
7. Why Did Texas Enact S.B. 8?
8. The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right
9. Chemerinsky: Republican Justices Are "Partisan Hacks"
10. SG Argues There Is No Middle Path in Dobbs
11. Ruth Marcus Joins The Brett Kavanaugh Fan Fiction Club
12. Can Cooper v. Aaron Save Roe v. Wade?
13. Noah Feldman Indulges in Gorsuch and Barrett Fan Fiction
14. The "Reagan Revolution" and OT 2021
15. Five Thoughts on the Timing of U.S. v. Texas and WWH v. Texas
16. An Unexpected NYT Op-Ed: "A Hard but Real Compromise Is Possible on Abortion"
17. Why Aren't Texas Abortion Providers Actively Resisting S.B. 8?
18. Making Sense of the S.B. 8 Rocket Docket
19. End the Epicycles of Roe
20. Guns, Terms, and Deals
21. #FedSoc2021 and Dobbs
22. A Message From A Current 3L and FedSoc Officer About Dobbs
23. Grateful For A Long-Overdue Debate on Dobbs, Originalism, and Stare Decisis
24. New Churches, New Movements
25. Originalism, Inc.
26. Poll: People Oppose Overruling Roe, But Favor 15-Week Abortion Ban
27. SCOTUS Does Not Decide S.B. 8 Cases
28. AG Meese: Failing to Overrule Roe and Casey "Would Threaten to Destroy the 40-Year Effort to Restrain the Court with the Founders' Interpretive Principles"
29. Predicting Justice Barrett's First Question in Dobbs
30. Charles Fried's Hat and Sweater
31. Where was Justice Kagan in Dobbs?
32. Justice Sotomayor Needs To Re-Read Marbury v. Madison
33. Justice Breyer and Sotomayor Do Not Understand Who Decides
34. Chief Justice Roberts's Question About Stare Decisis and Originalism
35. Justice Blackmun's Papers?!
36. Dobbs Ain't Over Till It's Over
37. Heritage Reporting Company Corrects Justice Sotomayor's Speaking Error
38. The "Stench" of Justice Sotomayor's Putrid Self-Fulfilling Prophecy
39. Justice Breyer Is Forever Afflicted With Lochnerphobia
40. Stare Decisis in Obergefell and Dobbs
41. What's going on with Dobbs and the S.B. 8 Cases?
42. Yes, The Supreme Court Has Reversed A Precedent Based Entirely On Its Wrongness

I think I am done writing about Dobbs for now. Still, remember that a case is not over when it is submitted. There will be a seven-month campaign to exert all manner of pressure on the Justices. And, I'll make a prediction. If, in a few weeks, there is a spate of writings about a specific aspect of the case from well-placed writers, there may be have been a leak. These leaks happened in NFIB. And I think they happened in Bostock. There are always attempts to work the refs.

Comments

[Krychek_2]

"Over the past nine months, I have written more than 40 posts on Dobbs"

Yes, you have.

[loki13]

In fairness, it FEELS like over the past nine days, he's written more than 40 posts on Dobbs.

[Jon S]

23 posts since November!

[Greg J]

I do think we've all been missing the elephant in the living room:

Texas

In Texas right now it is effectively illegal to do an abortion past 6 weeks. And there's been a significant drop off in abortions in Texas. Whole Woman’s Health v. Jackson, and U.S. v. Texas were both heard over a month ago, on 11/1.

SCOTUS had a conference today. No order has been released stopping Texas's anti-abortion law, despite the fact that the cases were heard under the "rocket docket".

It might be that they were waiting to rule on those cases until they heard the Mississippi case.

It might be that we will get an opinion Monday on Whole Woman’s Health v. Jackson, and U.S. v. Texas. But if we don't, I think that's pretty conclusive proof that Roe and Casey are toast.

I have a lot of problems with John Roberts, but I don't think he's a total idiot. Total weasel, but not a total idiot.

He knows that the only way that SCOTUS can stop being in the center of the abortion battle, and battle that stains SCOTUS with the stench of politics every time it happens, is to overturn Roe and Casey, on a 6-3 vote. Because it takes 4 votes to hear a case.

Allow the MS law stopping abortions at 15 weeks, but don't toss Roe? Then some other State will ban then at 14 weeks, and they'll have to go through everything again.

Uphold Roe, and strike down the MS law? Then some State will pass one at 16 weeks.

Pro-lifers aren't going to go away, and I'm pretty sure there will always be 4 votes to hear a case where an appeals court has struck down an anti-abortion law.

So if Roberts wants it off the docket, he has to vote to nuke Roe and Casey.

Because if Roe is gone, the pro-abortion people will get States to legalize abortion at various points, and outlaw it at others (or none, depending on the State), teh pro-life people will get their States to ban it or otherwise restrict it, and SCOTUS will refuse to hear any cases, other than slapping the hands of any appeals courts that try to get involved.

[Rev. Arthur L. Kirkland]

" There are always attempts to work the refs. "

Some are professional, deft, even elegant . . . effective.

Others are amateurish, clumsy, garish . . . even pathetic, perhaps even counterproductive.

[Jon S]

Yes. The "argument" style that simply assumes the other side's position is not only wrong but so obviously wrong little needs to be said about it* and then rants from there does not seem too compelling but what do I know? I ain't a law professor from the fancy South Texas School of Law at Houston or whatever.

*Assuming that 12 Supreme Court Justices in Roe (5 of 7 were Republican appointees) and Casey (all 5 were Republican appointees) could have gotten this so egregiously wrong that it is basically res ipsa loquitor wrong betrays a stunning lack of humility but again, I'm no professor at South Houston College of Law in South Texas. Reminiscent of the Karaite sect of Judaism which formed in 7th or 8th century CE and decided that 1000 years of Rabbinic tradition and interpretation was just plain wrong and they could go back to the "plain meaning" of the Torah. Rather arrogant assumption and, not suprisingly, they have about 1000 adherents worldwide today.

[Sebastian Cremmington]

TRAP laws have effectively repealed Roe at this point. In 20 years wealthy Americans won’t be procreating through humping when they can screen embryos using IVF and women can use a surrogate and not miss Coachella…truly a brave new world.

[Jon S]

Query whether another poster here has even posted 40 posts at all in the same time period. I'm guessing maybe Professor E. Volokh probably has. But query whether any poster has posted even 10 posts about the same specific subject in that time period. Blackman has probably posted 40 other posts about some other bee in his bonnet as well.

It's Blackman's blog now. The Volokh Conspiracy got taken over by a conspirator ... Probably good for the hits to the page though ...

[abhudd47]

I bet E. Volokh has posted a similar number of posts about pseudonimity in the same time period.

[Rev. Arthur L. Kirkland]

This blog has published a vile racial slur in just 15 different posts or threads this year (so far), though.

[abhudd47]

Was that supposed to be a response to my comment? I'm not sure what you're referring to in your comment, or what it has to do with my comment or what I was responding to in the preceding comment...

[Rev. Arthur L. Kirkland]

It was a response to the '40 posts about Dobbs' and 'I'll bet there were just as many posts about (selective) concern about pseudonymity.'

Sure, those subjects have been addressed incessantly at this blog (as have been affirmative action for conservative law professors; the left-wing anti-Semitism found everywhere; (selective) outrage concerning censorship on mainstream campuses; awkward race-related points; and the other VC standards) . . . but vile racial slurs have been featured, by my count, with respect to just 15 or so posts.

So this blog has that going for it . . . which is nice.

[WPHDM]

DAILY FARE & DOSAGE

I would point out that the comments of some of the usual suspects in this space -- though typically briefer than Josh commentary -- are even more numerous. Still don't understand what's with bashing South Texas School of Law at Houston in response to arguments. Have you checked the ranking of Texas Southern University? That's the other law school in H-Town.

In any event, argumentum ad scholam? What's the value of that?

You don't have to agree with Josh NonBlackman offerings to appreciate at least some of them as food for thought.

[Don Nico]

Count JB's posting his Dobb's bibliography as his version of giving
Hanukkah gelt

[WPHDM]

Vulgarization for the non-chosen and the passed-over ones, including lowly ranked law school alumni and their Socratic session moderators:

"Gelt" means money or a comestible version thereof enshrined in faux gold alum or tin foil to safeguard and preserve the (nutritional) value.

Vergeltsgott

[You are welcome, literally: May God reward you]
----
--> HANUKKAH GELT (Yiddish: חנוכה געלט‎ ḥanukah gelt; Hebrew: דמי חנוכה‎ dmei ḥanukah, both meaning literally "Hanukkah money"), also known as gelt (German: Geld), refers to money given as presents during the Jewish festival of Hanukkah.

--> VULGARIZATION. Act or instance of making something, such as abstruse or highly arcane information or jargon, more readily intelligible or widely known to the plebs.

File under: Word of the day, lexical uplift, vocabulatory charity

[Sarcastr0]

This is not a place of honor.

[Aunt Teefah]

Conservatives often make fun of anti-gun liberals for not knowing the difference between a clip and a magazine when opining on firearms issues. (Fair enough). Yet Blackman - who has plainly never been willingly touched by a woman - is allowed to write 42 posts on abortion. What gives?

[Rev. Arthur L. Kirkland]

That's at least a step too far. I learned from years in a large fraternity that there is someone for everyone (and in some cases everyone for some).

In this case, probably a devout handmaiden of some sort, sect, or cult.

Is there an Opus Dei -- self-flagellating, self-loathing, disaffected, cloistered, awkward, archaic -- for women?

[WPHDM]

Alt version of Opus DEI: Diversity, Equity, Intolerance

Original one:

Opus Dei, (Latin: God's Work). Roman Catholic lay and clerical organization whose members seek personal Christian perfection and strive to implement Christian ideals and values in their occupations and in society as a whole.

[GKHoffman]

Auntie hereby decrees that gay men who have never been "touched" by a woman, or would want to be, are barred from making any comment, written or oral, about abortion.

[Sebastian Cremmington]

Gay men are now reaping the benefits of ubiquitous IVF and surrogates—being gay is no longer an “excuse” for not having children.

[Bob from Ohio]

"plainly never been willingly touched by a woman -"

You are a piece of sh*t.

[Sarcastr0]

I mean, yeah, that's really bad form. Speculating about the sex lives of people you don't like is schoolyard crap and diminishes you more than your target.

But that is pretty rich coming from *you*

[Bob from Ohio]

I don't personally insult Conspirators [maybe Post a little] and I never initiate personal attacks on any commentator except for Kirkland. I do respond.

So its not "rich" at all.

[Sebastian Cremmington]

If you are responding to who I think you are I wouldn’t bother—I think he finally got his period a few weeks ago and he’s been bitchy ever since. He’s going through his “mean girls” stage. 😉

[LawTalkingGuy]

Need a tissue?

[Rev. Arthur L. Kirkland]

Hey, Bob from Ohio

When scouring those $29,700 residential deeds from Can't-Keep-Up, Ohio for typographical errors all day, does your mind ever wander toward thinking what you might be doing had you attended a better law school, graduated with a better record, been smarter, tried to make it in a big league city, etc.?

Thank you.

[Sarcastr0]

You say some shit about Somin, IIRC.

You've called commenters traitors, you've said commenters supported criminals and child molesters and even terrorists.

And then there's the stuff you say about anyone who votes for Democrats, and cities people live in.

[QuantumBoxCat]

"I think I am done writing about Dobbs for now."

Lol.

[Don Nico]

Well, I'm done until tomorrow

[Bob from Ohio]

"for now" is a very elastic term after all

[santamonica811]

heh

[abhudd47]

This thread is either hilarious or pathetic, I can't decide which. It kinda goes into the category of, "I don't have a legitimate argument on the merits, so I'll just attack the person."

Yes, Prof. Blackman has made a lot of posts about Dobbs. It is a huge case with major implications for both sides and for the court and a lot of different elements to consider. Most of his posts have avoided being redundant, instead taking the time to analyze the case from several different angles, giving readers an opportunity to see many sides of a monumental case that will have huge repercussions. Studying and explaining every angle of what may be the biggest, most newsworthy and potentially divisive case currently before the Supreme Court is pretty much what a blog like this is for.

Furthermore, this is how scholarly writing tends to work. Whether it is on a blog or in other formats. Frequently, when a scholar is writing a book on a subject they churn out articles for magazines, journals, newspapers, letters to the editor, etc. all focusing on the issue that they are studying for their book. Prof. E. Volokh has recently made a lot of posts about pseudonimity. This is what happens when scholars blog. They begin studying a particular issue and then post when they come across a new idea or have a new thought on the issue that they are devoting their time to in their scholarly endeavors.

Just because your opinion differs from Prof. Blackman's or you have an emotional hang-up on the subject matter in this instance, doesn't make HIS behavior ridiculous or even unusual.

[Rev. Arthur L. Kirkland]

" Furthermore, this is how scholarly writing tends to work. "

Figuratively fellating right-wing justices while telling liberal justices they should read and don't understand Marbury is not scholarly writing, even by the standards of most half-educated, conservative clingers.

[abhudd47]

Imagine my surprise that you have yet again missed the point and responded with a ridiculous, crude, and illegitimate rebuttal. My point was specifically about the number of posts Prof. Blackman has written about a single subject. That being said, agreement or disagreement from you is hardly what qualifies a person as a scholar....

[Rev. Arthur L. Kirkland]

I quoted your point.

Get an education.

[abhudd47]

One can quote something and still miss the point. Just like all of the people who love to quote bits of scripture and then treat people with hatred and violence.

[SimonP]

You're right to describe Eugene's posting history - or Ilya, or Orin, or some of the other Conspirators - as essentially academics working out their ideas in public.

If you can discern a pattern, a theory, a coherent take on judicial mores, or really any through line at all, behind Josh's many, many posts on Dobbs or just about any other issue, please feel free to articulate it. I'm sure Josh would be grateful to you, because god knows he hasn't articulated one himself.

I haven't read Josh's entire oeuvre on Dobbs, because I simply don't have the time to waste on such a project, but from what I have read, he's really all over the place in his commentary. Sometimes he'll complain about the justices. Other times he'll float a novel reason to overrule Roe that entirely begs the question. He's written several times about what he predicts will happen. He has complained that justices care too much about their perceived "legitimacy," without stating more than an amateurish take on what, exactly, judicial independence is supposed to look like. He has complained repeatedly - before the arguments, anyway - about how failing to overrule Roe might result in a crisis of originalist faith, as nonsensical as that sounds. And so on.

To describe his writing as "scholarly," or as somehow working towards a more substantial, thorough work, really demeans the profession. The one and only time I've ventured to read something he's actually published in a law journal, it was a piece the majority of which was obviously a 50-state survey written by law students he'd hired, and where his "legal" commentary and analysis was incoherent, self-contradictory, and lazily polemical - like much of what he writes here.

[abhudd47]

How well or poorly done a job is has no bearing on what field it is done in. While you may find Blackman's work to be poorly done, that does not change the fact that he is doing that work in the field of academic/scholarly writing...

[Rev. Arthur L. Kirkland]

He is publishing at a White, male, fringe blog that misappropriates the franchises of several legitimate academic institutions; offers mostly cherry-picked, misleading partisan polemics; and regularly (with respect to the Supreme Court history series) publishes embarrassingly bad content. Your view of what constitutes "academic/scholarly writing" seems to differ from mine, and others', and that of the modern American educational mainstream.

[abhudd47]

Your disdain for the blog, the people who write for it and their views notwithstanding they are individuals devoting and applying themselves to the study and analysis of a particular field.

[WPHDM]

Amen. Thank you for taking the time to explain the scholarship process to those so obviously in need.

[benji]

Kinda weird to pretend this is only about Dobbs in your post when you've goosed the numbers with SR8 posts.