The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Professor Joel Alicea wrote a must-read piece in City Journal about Dobbs and the conservative legal movement. I share many of his concerns. Moreover, Joel addresses arguments raised by Steve Sachs and others about the relationship between originalism and the conservative legal movement.
Here is an excerpt:
With both Jackson Women's Health Organization and the solicitor general likewise arguing that the Court must either reaffirm or overrule Roe and Casey, legal conservatives now expect that, after nearly 50 years of unceasing effort to overrule Roe, they will finally see the Court do it. If it does not, a sense of betrayal and disillusionment will likely follow.
That would place enormous strain on the intellectual fault lines within the movement. If a Supreme Court with a 6–3 conservative majority consisting of five committed originalists refuses to overrule Roe and Casey, it is unlikely that any originalist Court will ever do so—raising serious questions within the conservative legal movement about its attachment to originalism. Immediate recriminations and accusations of betrayal would ensue, likely tearing the movement apart. Those who offer a moral critique of originalism would point to Dobbs as proof positive that originalism lacks the moral foundation necessary to be a plausible constitutional methodology. Vermeule has openly predicted that if "Roe (not merely Casey) survives in any form without being overturned [in Dobbs], it will represent a shattering crisis for the conservative legal movement." If the Court fails to overrule Roe and Casey, there is a very good chance that Vermeule would become the most important intellectual figure in whatever succeeds the current conservative legal movement.
Similarly, those advocating an instrumental view of originalism, especially in favor of judicial restraint, would have good reason to question whether originalism actually achieves the restrained judiciary they favor, since the failure to overrule Roe would keep the Court enmeshed in the most contentious social issue in America, without clear constitutional warrant. Some may argue that the more restrained position would be to uphold Roe, since that would be minimally disruptive to American constitutional law. But Chief Justice Roberts—the most committed judicial-restraint member of the Court—has shown himself willing to make great changes in constitutional law to keep the Court out of political and social policy if the Court's intervention has no firm constitutional basis. For example, he wrote the Court's opinion in Rucho v. Common Cause (2019), which held that the federal judiciary has no authority to adjudicate political-gerrymandering challenges to redistricting maps. That controversial decision ended several decades of gerrymandering jurisprudence, but its effect was to withdraw the Court from fraught political and social battles.
Those who believe that originalism is the only legitimate methodology of constitutional adjudication would have no logical reason to abandon their view, since it is not based on the results that originalism achieves. But their theoretical arguments would sound less convincing to an audience that had witnessed such a seismic failure of originalism to translate its arguments into reality, just as those arguments have already lost some of their purchase after Bostock. The conservative legal movement has always been an intensely intellectual but also intensely practical movement; a methodology right in theory but self-defeating in practice will not retain many adherents.
A forthright overruling of Roe, however, would significantly alleviate the tensions within the movement and bolster its long-term outlook. It would, in the eyes of instrumentalist and non-instrumentalist originalists alike, vindicate their half-century support for originalism. It would take much of the wind out of the sails of originalism's moral critics, since originalism will have been the means of achieving the critics' most earnestly sought moral goal. There is likely no avoiding the consequences, then, for the conservative legal movement in Dobbs: complete victory or crisis-inducing defeat.
Upholding Roe would not weaken originalism as a theory. Steve is right about that much. But for many instrumentalists, originalism would no longer be an attractive theory. And without that support, the academic theory would remain just that. In time, Judges and Supreme Court justices, who seek political support, would no longer be willing to subscribe to the once-prevailing academic theories. Maybe this prediction is right. Maybe this prediction is wrong. But the risk is real. And Vermeule is laughing all the way.
Mumblings in the Mayflower have now spilled into national discourse. You heard it here first.