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Alicea: "Dobbs and the Fate of the Conservative Legal Movement"

"The Supreme Court’s ruling in the abortion case, expected next June, will be a defining moment in the Right’s battle for the Constitution."


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.

NEXT: Tennessee Court Holds That Black Defendant Did Not Receive A Fair Trial Because Jury Deliberated In Room With Confederate Flag and Portrait of Jefferson Davis

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  1. Thanks to TRAP laws the stakes are pretty low for this case because abortion rights have been significantly eroded and there are no abortion clinics over large swaths of America as we speak. Furthermore science has blurred the lines on viability AND conception. Do conservatives really believe babies can be frozen in perpetuity and do liberals really believe an 8 month old fetus isn’t a baby??

  2. So does this count as part of the unseemly "pressure campaign" you were complaining about a few days ago? Or nah?

  3. Well at some point originalism has to collide with stare decisis and reliance interests. Stare decisis is the tradition part of history, text, and tradition. Only academics with lifetime tenure are unconcerned with reliance interests.

    Also, like it or not the Supreme Court is a political institution with only so much political capital.

    Reagan and Bush appointees already re-affirmed Roe in Casey. There was a window for overturning Roe without damaging the institution, and it closed with Casey.

    1. If the judicial branch isn’t a political branch…then why did McConnell make his legacy about judicial appointments?? So Democrats that characterize this court as the “Trump court” do so disingenuously in an attempt to undermine the Supreme Court—every Democratic senator knows Trump had almost nothing to do with judicial appointments and Jeb! would have appointed these exact same justices. Make no mistake—this is the McConnell Court and it became his court with he “dick slapped” Bush upside the head when Bush attempted to appoint Myers.

      1. If the judicial branch isn’t a political branch…then why did McConnell make his legacy about judicial appointments??

        Of course the judicial branch is a political branch. Generalizing from your comment, justices are chosen by a political process. They are political officials. The pretense that they are anything else grows thinner by the day.

    2. Mississippi´s Solicitor General suggested that a line of substantive due process cases had engendered reliance interests to a greater degree than Roe and Casey. Among the decisions the Court asked about was Obergefell v. Hodges.

      I am skeptical that reliance on Obergefell exceeds reliance upon Roe and Casey. One in four women of child bearing age have had or will have at least one abortion in her lifetime. Gays and lesbians are a relatively small fraction of the population, and same sex couples are a smaller fraction.

      1. How does a woman's decision to get an abortion in the past constitute a "reliance interest"?

        1. Perhaps a past abortion, by itself, doesn't constitute a reliance interest. But a young woman could have entered some period of her life (say, her 20s) with the reasonable expectation that she could be "open for business" (loose, easy, etc.) if she liked, without life-altering concerns about family planning.

          Absent the surety of ready abortion access, she might not want to take the risk of any sexual relationships in her twenties, for fear of altering the trajectory of her life, or being stuck with a baby daddy who turned out to be a poor choice.

          These medium to long term calculations are where the reliance interests lie. A past abortion could potentially increase reliance interests during this medium to long term period.

          1. If that's a "reliance interest", basically every law that requires you to change your life to stay in compliance violates "reliance interests".

            1. My city gives free parking around the holidays to encourage people to shop at businesses there. When the meters are back in effect in January, can I claim a reliance interest?

        2. It is a procedure that would not likely have been lawfully available absent Roe. Since that decision American women have structured their lives around having control of their fertility (including the failure of contraception).

          1. The Roe decision surveyed abortion laws in New York, California, Illinois, and Pennsylvania where the procedure was already lawfully available. Since that decision, Texan women follow New York law.

        3. Noscitur, probably not news to you, but it bears remembering that a lot of women come equipped by nature with sex drives, just like men. There is a world of reliance difference in planning a future career under a premise that your sex drive will not likely disrupt all your plans, because you have a remedy for adverse happenstance, vs. how you can reasonably plan with no remedy available.

          It is also worth noting that advocacy to the contrary—premised on the notion that women should not be allowed sex drives—is tyrannical, and contrary to fact—both of which make for bad legal policy.

          1. It's worth noting that use of birth control can reduce the likelihood that your sex drive will disrupt all your plans to the point where it would not be considered "likely", only "possible".

            Demanding that absolutely NOTHING be permitted to disrupt your plans is insane. Things happen. Sane people understand they occasionally have to alter their plans. I plan to go get groceries, and return home within the hour. Somebody darts across the road in front of my car and is hit.

            I don't get to drive off and leave them to die just because otherwise my plans for the day will be disrupted.

            1. Brett, you have probably heard the one about small probabilities featuring giant consequences. So I won't belabor that.

              But what makes you think a world in which the SCOTUS empowers states to outlaw abortion is not also a world where states outlaw birth control, maybe even make it a crime to use it? The two impulses seem to be widely shared, and co-extensive.

              1. Certainly any opponent of legalized birth control would be opposed to abortion, but that doesn't make them co-extensive.

          2. You seem to be under the impression that I want to restrict access to abortion. I don't l: in fact, I'd like to see it more widely available than Roe requires.

            But a "reliance interest" doesn't mean that people's lives will be worse if the policy is changed—in that case it would just be the same as what policy was better.

  4. I like how close this post comes to admitting originalism is simply a tool to get what Republicans want, rather than something of worth on it's own merits. After all, as I've previously noted, originalism is freely discarded whenever it isn't useful, and of all the caselaw standing in opposition to originalism, there's far worse than Roe if you care about it as a principle rather than tool. Josh and most of the "conservative legal movement", clearly do not. Should just go ahead and concede it's the Republican legal movement, and originalism wasn't a good enough tool to get your preferred outcomes.

    1. It need not be, but for most of them I think you're right. Hence the mistaken insistence that Roe wasn't originalist even though its trimester system (and even viability) match up fairly well with the common law at the time of the Founding. Further, many so-called originalists supported Congress enacting laws to prohibit abortions, and it'd be a neat trick to find an originalist case for that.

    2. Not really. It's more like this: You may be right about the rules of pool, but if you're playing with a bunch of people who are wrong then you play a different game by house rules.

      No matter how "correct" originalism is, at some point, if the original meaning of the Constitution is not followed and is not going to be followed, then it doesn't make any sense to pretend otherwise.

      Instead you could just acknowledge, "yes following the original meaning of the Constitution would have been nice, but for better or worse we've adopted a different set of ideas and there's no sense denying it, now here is why the Constitution requires state and federal governments to outlaw abortion."

      1. The analogy I've seen is that when somebody nails you in the balls and starts curb stomping you, you're fully allowed to gouge their eyes out, even if on an abstract level think people should spar using gloves and helmets.

  5. When Federalist Society members gather for a big national event, do you ignore Prof. Vermeule's superstition-based bigotry . . . or celebrate it?

    If (as I suspect) his old-timey, nonsense-based bigotry is celebrated by the collected clingers, are the celebrations open . . . or more private, because Republicans no longer wish to be publicly known as bigots in modern America?

    Thank you.

    1. Don't worry, Prof. Vermeule is an associate professor at Liberty University, nobody listens to him.

      1. We appear to be referring to different Prof. Vermeules. The one to which I refer teaches at a real university.

        1. Nonsense, only liberal/libertarian lovers of progress, science and everything nice have influential positions are strong universities.

          1. Several strong schools have erred by inviting clingers to join their faculties.

            The Volokh Conspiracy is doing its part -- and more -- to avoid additional mistakes along that line.

            1. Ooh, you were so busy posting that you missed Sex Week at Harvard.


              1. Does the invisible man in the sky who controls your life tell you what we should think about Sex Week at Harvard, you gullible right-wing rube?

  6. So much for Professor Blackman´s hiatus from writing about Dobbs. I suspected it wouldn´t last long.

    1. He made it nearly 48 hours, although he was probably chomping at the bit the whole time. Yes, I said chomping, and not champing, because he probably made lots of snacks in order to fight the cravings.

      1. Were those snacks as good as anything an airline would provide?

        I just hope no salami-and-yellow cheese sandwiches were involved. I want Prof. Blackman and his colleagues to continue to get stomped in the culture war, but I wish such sandwiches on no one.

        1. ^This. At least insofar as an answer to Kirkland's many detractors, who decry the sameness of his commentary.

          1. He occasionally says something reasonable about food, in between oral rape metaphors and raving about how we're going to be crushed by our 'betters'.

            1. Not just reasonable, Brett, but stylishly expressed. At times, Kirkland writes like someone who made good money by writing.

        2. Reminder that Professor Blackman was the only person I've ever seen at a law school not be able to wait the 45 minutes to eat his free pizza after the panel.

  7. Instrumentalism is puts the lie to calling balls and strikes, or if you prefer, the claim that the SCOTUS is not a political body. This is the latest post to illustrate that hypocrisy is the tribute vice pays to virtue.

  8. Well let's see, conservatism stands for the principle that the individual is supreme to the government, that government control is limited to those situations such as criminal acts where government action is necessary for society to exist in a peaceful, prosperous manner.

    So the idea that government should prosecute a woman whenever a two cell fertilized egg is destroyed, and bring murder charges against the woman, her doctor, maybe her family, maybe her spouse or boy friend is about as far from conservatism as one can get. It is basically government dictatorship of the female part of the population.

    A true conservative, given the choice of policy between the woman, her family, her medical advisors and her spiritual advisors make the decision to continue a pregnancy when the fetus is not viable outside the woman's body and having government control, mandate, dictate that decision would choose the former and condemn the latter. But alas we no longer have true conservatives. We have a group of religious fanatics aligned with individuals who want to use government to enforce behavior they support having usurped the conservative movement.

    1. "But alas we no longer have true conservatives."

      And you're so concerned!

      1. As a true Conservative and not one of those name only conservatives who want to use government power to force their view of morality and religion on the rest of us, I am concerned. I read a lot about right wing militias, right wing threats against legislators, school board members, peaceful protesters. My so-called conservative Congressman wants his supporters to take their guns into the streets and fight.

        Yeah, I am concerned.

        1. "As a true Conservative"

          Conservatism is certainly a big tent.

          But I prefer Ambrose Bierce's definition of conservative - "A statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others."

          1. Is your objection to change entirely driven by superstition?

  9. I'm not sure that "Principled originalists should want Roe to be overruled because otherwise, the unprincipled people who pretend to be originalists because they think it will support their policy preferences may stop pretending" is the slam-dunk argument that you think it is.

  10. "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."

    This seriously misstates the issue, as originalists would understand it.

    "Since it is not based on the results that judges who purport to be originalists achieve." would be a better way of putting it. Our logical response would be to conclude that the Justices who voted to uphold Roe while claiming to be originalists were either lying or self-deluded, because Roe is simply indefensible from an originalist perspective, and 5 supposed originalists voting to uphold it can't change that.

    1. Our logical response would be to conclude that the Justices who voted to uphold Roe while claiming to be originalists were either lying or self-deluded, because Roe is simply indefensible from an originalist perspective, and 5 supposed originalists voting to uphold it can't change that.

      “No True Scotsman” has entered the chat.

      1. I've got some startling news for you: Not everybody is a Scotsman!

        "No true Scotsman" derives its rhetorical force from the fact that the guy denying that somebody is a Scotsman because they X, (Puke eating haggis, fail to spray when talking, whatever.) where the actual definition of "Scotsman" is somebody from Scotland. So their complaint is unrelated to the definition of "Scotsman".

        Originalism is a legal doctrine. Being an originalist is defined by the sort of legal reasoning that you apply. If you arrive at a result that originalism couldn't produce, in an important case, you have demonstrated that you're not using originalist reasoning, and thus genuinely are not an originalist, what ever you might claim.

        1. You realize how this fallacy works, right? It has nothing to do with who is a Scottsman or not.

          You're saying 'Everyone who disagrees with the outcome I want isn't a real originalist. Debate over!'

          That's not a debate at all, it's just you crowning yourself King of the Originalists.

          1. Yes, I absolutely understand how the fallacy works, and it is misused as often at tu quoque.

            If I say, "No true Scotsman would refuse to eat haggis!", I'm committing the No True Scotsman fallacy. Plenty of Scotsmen don't like haggis, liking haggis is not part of the definition of being a Scotsman, being born and raised in Scotland is.

            If I say, "No true Scotsman was born and lived his life in Venezuela!", I'm not committing a fallacy at all, I'm simply pointing out that the term "Scotsman" has a meaning that not all people match. That not all people are Scotsmen.

            I order to be a fallacy, the original generalization has to be false, it has to be something that doesn't actually define being a Scotsman.

            Actually USING originalist reasoning, and thus not arriving at and sticking with conclusions that reasoning precludes, is by definition central to being an originalist. Thus denying that somebody who defends Roe on a non-originalist basis is an originalist is not at all a fallacy.

            1. It's about pre-curating your community to agree with you.

              And you absolutely did that.

  11. Going beyond the context of a culture-war lining up of teams, we can look at a paragraph like this one and analyze it:

    "What we now know as the conservative legal movement was born in the aftermath of the Warren Court, the period from 1953 through 1969, when Earl Warren served as chief justice. It was a time of tremendous upheaval in American constitutional law. To take just a few examples, the Court required states to provide indigent criminal defendants with a lawyer"

    Hey, sounds like a great idea!

    "mandated the principle of one-person-one-vote in redistricting,"

    Sounds wonderful, but wait, is that in the const-oh, well, never mind.

    "declared a right to use contraception,"

    For married people, because marriage is so important - oh, wait, it applies to unmarried people too? Wow, that was quick...and now they say the penumbras and emanations include a right to all that by me again...

    "and required the reading of so-called Miranda Rights to those taken into police custody."

    Sounds reasonable. If you have the right to remain silent and have a lawyer, but you're in a coercive situation - like, say, police custody where they're bombarding you with questions and in the confusion everyone forgets all about constitutional niceties - there should be some counterbalance to the power of the police in form of reminders of the rights you admittedly have.

    So Earl Warren wasn't wicked, he simply signed onto the results he wanted and hoped the legal reasoning would make sense later, but if not no biggie, he got what he wanted. So sometimes he got good results and sometimes not.

    1. With all due respect the author of this post y should not post things like the above. You are making my case for me, and far too easily.

      As I understand your post, you want to live in an America where the Constitution entitles everyone to an attorney, but only if they can afford it. You want states to enact schemes where one legislator may represent say 1% of the number of constituents another legislator represents.

      Due Process and Equal Protection don't seem to be part of your version of the Constitution. And of course no where is segregation outlawed in the Constitution, wanna go back to the world of Plessy? You believe the Constitution enabless government to regulate private sexual activity and force couples to observe a religious objection sto family planning.

      You want the accused to be free of self incrimination, but for the government to keep that information from the accused. It seems to me you want the United States to be a clone of Iran. Good luck with all that.

      1. Much of what you wrote is the exact opposite of what I said, so I'll content myself with noting that in hopes that nobody takes you seriously enough to need a detailed rebuttal.

        1. I said I was "[g]oing beyond the context of a culture-war lining up of teams," but seeing me praise some Warren Court decisions and criticize other pretty much broke your brain - snapped it like a toothpick.

      2. "As I understand your post, you want to live in an America where the Constitution entitles everyone to an attorney, but only if they can afford it."

        Your mistake is evident in your very first sentence: "you want to live in an America where the Constitution.

        How does what you "want" the Constitution to say have any relevance to what it DOES say?

        You could reason this way about a living constitutionalist, because the whole point of living constitutionalism is to say that the Constitution means something you like, regardless of any evidence to the contrary. So if you say the Constitution means something, it demonstrates you like that something.

        You can't say that about originalism, because originalism is a rejection of the idea that the meaning of the Constitution is dictated by what you would like it to mean. It has a meaning, independent of your hopes and desires, and barring amendment, you're stuck with that meaning. The originalist refuses to lie about what that meaning is.

        1. Brett, you are trying to straddle two ice flows which are moving apart. The historical originalist is less rigid than you suppose, but far closer to what you say than the right-wing originalist. The right-wing originalist simply wants his team's judges to generate a store of made-up facts about the past, and then rely on that supply as evidence to decide cases.

          1. Certainly that's what politicians who find it convenient to call themselves 'originalists' tend to do. But I've already argued that not everybody who calls themselves an 'originalist' really is one. That not everybody is a Scotsman. That's not the same as there not BEING Scotsmen.

            There actually are plenty of originalists, real ones, who divorce what they'd like the Constitution to mean from what they understand it to mean. It's only on the living constitutionalist side of the divide that you can assume somebody likes something if they assert the Constitution means it, because they're defined by rejecting the idea that the Constitution has its own meaning independent of what you'd like it to be.

  12. Who are the "five committed originalists"?

    1. Kim Kardashian's backup singers on Karaoke Night?

    2. Hmmm... Who could they be? Breyer? Kagan? The "wise Latina"? Ooh, I know -- John "It is not our job to protect the people from the consequences of their political choices" Roberts!

  13. Face facts: Roe/Casey has failed. It was supposed to end the politicization of the abortion issue. Instead, it turned a State-by-State issue into a National issue; in fact it’s the ONLY issue that really matters when a President appoints a Supreme Court Justice. People are even proposing to pack the Supreme Court to preserve the “right to abortion”.
    Theories of Constitutional interpretation will play no real role in the Court’s decision. You may see some intellectualizing in the dissents. I expect there’ll be some intellectualizing in Justice Thomas’s concurring opinion (with which a couple of other Justices may join).
    But the Opinion of the Court will be that Roe/Casey are NOT overruled, but they are understood not to prohibit reasonable regulation of abortion by the individual States. And “reasonable” pretty much means what the particular State thinks is reasonable. If it were up to me, I’d pick the Chief to write the majority opinion; he’d do the job very well.

    1. It's the same with every other political issue. The inversion of the decentralized federalist system originally established is the cause of our political dysfunction, and an anathema to liberty. The people don't have meaningful self-government of any sort. This cancerous state of affairs infects all levels of state and local governments, and beyond that, local communities, neighborhoods, businesses, churches, and every institution.

  14. Stare decisis is over-rated: it is deliberate that Supreme Court pronouncements are not mentioned in Article VI. From the outset, the Supreme Court was expected, but not required, to acquiesce to tradition (for example, "we shall be ready, without difficulty, to change our opinion, if we see cause, upon objections that may be then laid before us, though none have occurred to us at present which we think sufficient") unless such tradition was deemed not-in-keeping with the plain meaning of the Constitution ("the courts are to give such meaning to the constitution as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so understood as to bear no meaning or a very absurd one."). There was special concern regarding the natural "equity" of each case, embracing the ancient thinking that "Now we ought to investigate and discuss the law of Nature independently, but in regard to the Roman law we must follow precedent and tradition." [from Cicero, "nos autem de iure naturae cogitare per nos atque dicere debemus, de iure populi Romani quae relicta sunt et tradita."]

    The "ancient and wise maxim 'stare decisis'" was largely forgotten until 1803 and even then it was used only to justify the absence of prior analysis with which the jurist agreed.

    Flash forward to today, where "Too many constituencies, on both ends of the political spectrum, are intent on preserving at least a subset of the Supreme Court's atextual, ahistorical, or poorly reasoned constitutional pronouncements."

    Scalia is right to note the faint-heartedness of most jurists: "The whole function of [stare decisis] is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability. It is a compromise of all philosophies of interpretation."

  15. 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.

    What happens to the instrumentalists if their instrumentalism delivers consequences which exceed their capacity to control? Widespread political repudiation of Republican politicians in erstwhile red states, for instance. I am not hazarding that as a prediction, much as I would like to see it. But why isn't inapt instrumentalism counted among the hazards to, "long term outlook?"

    1. Why would we expect this? If you return abortion to the regular give and take of democratic legislating, you would expect each state to adopt abortion laws of a sort that state's population approves of. Legal infanticide in New York, only available for serious cause in Texas, something in between most places.

      You're tacitly assuming that abortion politics would hurt Republicans if their legislation could actually take effect, but everywhere isn't New York, the places where a fairly hardline on abortion would be political suicide are already dominated by Democrats.

      1. I see your point. Let's cast it as a lead headline:

        "High Confidence Rules Out Unexpected Consequences."

        Can you think of any publication with a style that would suit?

  16. Professor Blackman,

    I am going to give your side some advice. If the Supreme Court decides that a 15 week limit can be squared with Roe’s “fundamental holding” and hence can be upheld without needing to reconsider Roe itself, thus punting the question of whether Roe should be overruled outright off to the future, my strong suggestion would be for you and other people on your side to live with it, tone down the howls of outrage, the burnings in effigy, and the lynching threats, and recognize not just that that your side has in fact won a major victory, but that good things don’t tend to come to those whose impatients is too surly.

    As long as the Supreme Court doesn’t fully re-affirm Roe, your side’s position is still in play. And if the conservatives on the court find it prudent to do things in multiple steps rather than all at once, at each step deciding only the case before them, there may be a reason for their prudence.

    I think it’s quite likely Chief Justice Tobersts won’t pick up a 2nd justice and there will be 5 votes for flat-out overruling Roe. But if he finds a Justice willing to decide only the case at hand and not overturrn Roe but not reaffirm it either, your side has not lost, indeed it will have gained a substantial if partial vicotory with hope for extending it. It would be imprudent, it would be counterproductive, to have such black and white, all or nothjng thinking as to treat a promising partial victory as a defeat.

    It would be a grave mistake to take your ball and go home in a huff when the game is still ongoing, the ball is still in play, and if you were patient and persistent you could still win.

    1. To put it more plainly, your basic thesis seems to be that if the conservative movement doesn’t win now, it will get totally demoralized and give up. I don’t quite understand why that’s any business or concern of the Justices, but that seems to be your thesis.

      To be blunt, a movement that gets demoralized that easily lacks the moral fibre that winning movements need to win. Conspicuous displays of how demoralized and lacking in moral fibre your movement is right now isn’t likely to gain them any sympathy. Indeed, your movement’s best hope for victory is convincing others that they are dealing with people who are in it for the lokg haul,, who have patience and a long-term vision, people who, if they lose a battle, won’t just throw a tantrum and fade away.

      Frankly, as bluntly as I can put it, such a view of your movement represents the other side’s best hope.

      1. No, I think the thesis is that if appointing to the Court a super-majority of alleged "originalists" doesn't result in originalist rulings, we'd have to reassess whether institutional originalism in the legal community was still meaningfully originalist, or whether it had been coopted or corrupted.

        And if we concluded that what calls itself 'originalism' in the legal community isn't anymore, we'd have to alter our strategy to compensate. Stop supporting the federalist society, for instance. Or maybe even give up on restoring the Constitution as a lost cause, and start working on the program of bringing about a constititutional convention to replace it.

        1. Yes. I think the result in Dobbs and NYSRPA are really the bellwethers. If the originalists twist themselves into knots to uphold New York's "good cause" requirement for getting a pistol permit, it's clear that the movement has been coopted such that no mainstream "originalist" choice will ever be acceptable.

    2. I don't think many RTLers would be satisfied with upholding the law in Hobbs but retaining Roe/Casey. As of 2019, roughly 95% of abortions in the U.S. took place within the first 15 weeks. So unlike SB8 in Texas, the law in Hobbs doesn't do much to limit abortions.

      So the only question is whether they'll accept that as an incremental measure or not. Unless they think that SCOTUS will soon hereafter uphold SB8, I think they're going to run out of patience.

      That having been said, SCOTUS's accepted QP in Hobbs was not about overturning Roe/Casey.

      1. I don't think the Court could uphold the Mississippi law while still reaffirming Roe and Casey. However, I think the Court could uphold the law and still reaffirm Roe. The Roe Court said that prior to the first trimester the abortion decision was to be left to the woman and the medical judgment of her decision. The Court never actually said that abortions could not be prohibited prior to viability, which is a claim the Casey Court made.

        1. *medical judgment of her physician

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