In the Wall Street Journal, the democratic socialist David J. Garrow notes that, in his draft Dobbs opinion, “Justice Alito takes clear pleasure in citing by name the many liberal legal scholars who have dismissively criticized Roe’s reasoning, and he twice calls Roe’s constitutional discussion “exceptionally weak,” and then suggests that:
Justice Alito’s opinion highlights the fundamental revolution in constitutional analysis that has taken place since the 1970s thanks to the intellectual ascendancy of the “originalist” and “textualist” modes of interpretation. You don’t have to be a Federalist Society member to see that the analytical prowess today’s justices demonstrate in opinion after opinion far eclipses the quality of the Warren and Burger Courts’ work product.
This is true, of course. Why? For the same reason you get better tennis players on both sides if you insist that they play with a net. The Warren and Burger courts spent most of their time making stuff up. The “intellectual ascendancy of the ‘originalist’ and ‘textualist’ modes of interpretation” put an end to that. In most cases, this development has improved the work of both the originalists and the non-originalists. When the originalists have been in the majority, they have done the job they were confirmed to do and hewed to the law as it was written and publicly understood. And when the originalists have been in the minority, their mere presence has forced those who were trying to make stuff up to temper their efforts in the face of what they knew would be withering opposition. In both cases, the intellectual quality of the Court has been improved.