The Volokh Conspiracy
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New Op-Ed: "On abortion, justices demonstrate courage under fire"
"Dobbs, which is a triumph for originalism and sound constitutional law, also signals that the court is infused with judicial fortitude."
Yesterday, the Deseret News invited me to write an op-ed on Dobbs. I thought I would have some time to think about it, but the Court moved quicker than I expected.
My Op-Ed is titled, "On abortion, justices demonstrate courage under fire." This piece builds on my essay "Judicial Courage" in the Texas Review of Law & Politics.
Here is the introduction:
In 1973, Roe v. Wade created a constitutional right to abortion. Two decades later, in Planned Parenthood v. Casey, the Supreme Court refused to reverse that controversial decision, writing that "to overrule (Roe) under fire … would subvert the Court's legitimacy beyond any serious question."
Today, Roe was overruled in the Dobbs v. Jackson Women's Health Organization decision. And in doing so, the majority demonstrated real courage "under fire." Five justices were willing to take this bold and correct legal step in the face of never-ending personal attacks, efforts to pack the court, fallout from the leaked draft opinion, protests outside their homes and even an assassination attempt.
Dobbs, which is a triumph for originalism and sound constitutional law, also signals that the court is infused with judicial fortitude. This virtue, more than any particular method of deciding cases, guarantees that the court will steadfastly safeguard the rule of law.
And the conclusion:
Two years ago, I dubbed the final month of the Supreme Court's term as "Blue June." In case after case, the court's purported conservative majority went to the left. Chief Justice John Roberts, the swing vote, found creative ways to strike balances that did not really resolve contentious issues, but avoided any obvious conservative victory. He hewed closely to a jurisprudence of public relations.
Two years later, we are in a very different time — call it "Red June." Today, the court overruled Roe v. Wade; yesterday the court held that New York's restrictions on concealed carry were unconstitutional. These two decisions, separated by 24 hours, were handed down in the face of immense pressure from every facet of our society. Yet the justices did not falter. They are infused with judicial courage. And if they stick to their guns, come what may, the rule of law will be steadfastly safeguarded.
I will have much more to say about Red June, or perhaps Red Flag June in due course.
You should also check out Joel Alicea's piece in City Journal, titled "An Originalist Victory."
To acknowledge this achievement is to acknowledge the constitutional theory around which the coalition that brought it about rallied for a half-century: originalism. It was originalism that the pro-life movement adopted after Roe and supported through the confirmation defeat of Robert Bork; the attempted defeats of Clarence Thomas, Samuel Alito, and Brett Kavanaugh; and the setback of Casey. The goal of overruling Roe and Casey bound the conservative political movement to the conservative legal movement, and originalism was their common constitutional theory. Dobbs thus had the potential—as I argued in an earlier essay—to exacerbate the tensions over originalism within the conservative legal movement. It would be viewed as the acid test of originalism's ability to translate theory into practice, and there would be no avoiding the stakes for the conservative legal movement in the case: "complete victory or crisis-inducing defeat," as I put it. We now know that it was a complete victory, and it was, in large part, originalism's victory.
I count Joel, Sherif Girgis, and a few others, as leaders in the conservative legal movement who helped advance the debate in Dobbs.
