Amidst the ocean of bad takes on Dobbs, there are some lush islands. I’ll highlight two here.
1. In the City Journal, law professor Joel Alicea, who six months ago wrote a piece on “Dobbs and the Fate of the Conservative Legal Movement,” follows up with an excellent essay titled “An Originalist Victory.” Alicea explains that “Dobbs is, without question, a triumph for originalism and a vindication of the support given to originalism by the conservative legal and political movements since Roe was decided almost half a century ago.” He addresses two critiques that contend otherwise.
One critique, from moral critics of originalism, contends (in Alicea’s summary) that “the overruling of Roe and Casey is not a momentous victory because it leaves abortion to be decided on a state-by-state basis.” That critique, he points out, involves a “combination of goalpost-shifting and heads-I-win-tails-you-lose argumentation [that] is as obvious as it is unconvincing.” Further:
To say that the overruling of Roe and Casey is not a monumental moral achievement because it did not ban abortion is like saying that the Thirteenth Amendment was not a monumental moral achievement because it did not guarantee full civil and political equality to black people. No doubt the efforts of the pro-life movement have only just begun, just as the efforts of those who sought to guarantee full civil and political equality for black people had only just begun with the Thirteenth Amendment’s ratification. But to diminish the importance of the crucial first step in light of the ultimate destination of our journey is as unsound morally as it is practically.
The second critique, from some originalists, is that Justice Alito’s majority opinion “is not originalist in methodology.” Alicea offers a long and intricate response to this critique. Here is an excerpt:
[T]he opinion devotes page after page to a detailed historical analysis of how abortion was treated by American law up through the ratification of the Fourteenth Amendment—precisely what one would expect in an originalist opinion. Though that analysis is presented as showing that a right to abortion is not “deeply rooted in [our] history and tradition” (rather than as showing that it is not part of the original meaning of the Fourteenth Amendment), in the context of this case, it serves the same function as demonstrating that a right to abortion is not supported by the original meaning of the Fourteenth Amendment. Indeed, the opinion’s staid refusal to affirmatively endorse substantive-due-process doctrine and its footnote pointing out that its Glucksberg analysis would carry over to an originalist analysis under the Privileges or Immunities Clause shows that the Court was thinking of its Glucksberg analysis as serving the same function as an originalist analysis. And the Court’s self-understanding of its analysis is right: the fact that abortion was so widely prohibited in the lead-up to and during the ratification of the Fourteenth Amendment should—given the range of potential original meanings of the amendment put forward in the scholarly literature—conclusively establish that abortion is not protected by any provision of the Fourteenth Amendment as originally understood.
2. On Public Discourse, law professor (and stalwart originalist) Michael Stokes Paulsen argues that “Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time.” Here’s his summary assessment that his essay amplifies:
[Dobbs] is as important as Brown v. Board of Education. It is as fundamental to the Constitution as Youngstown Sheet & Tube. It is as beautiful, in its own way, as Barnette. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights. It is literally a matter of life and death. It is potentially transformative of American society, for the better. It is a rare act of judicial courage and principle. In every way, Dobbs is a truly great decision.