“After nearly 50 years of judicial usurpation,” Ed Whelan writes in the new issue of National Review, “Justice Samuel Alito’s masterly majority opinion restores abortion policy to the democratic processes. That achievement was decades in the making, and for most of that time seemed a pipe dream.”
After enduring decades of quasi-random judicial activism during the living-constitutionalism phase of the Warren Court, conservatives were stung by the defections of Sandra Day O’Connor, Anthony Kennedy, and David Souter — all appointed by Republican presidents — in 1992’s Planned Parenthood v. Casey, which reaffirmed Roe. In the wake of that momentous defeat, many observers, on both the left and right, thought that, whatever one might think of the Roe/Casey framework, it was here to stay.
“But,” as Whelan writes in his new essay,” work begun during the Reagan administration was beginning to bear fruit.”
The eye of the storm for the newly developing conservative legal movement was the Federalist Society — “a little-known organization of law students and lawyers founded in 1982.”
Edwin Meese, first as Ronald Reagan’s White House counsel and then as attorney general, boldly challenged conventional legal pieties and helped Reagan pick Scalia and Robert Bork first as appellate judges, then as Supreme Court nominees.
The conservative legal movement and the Federalist Society came to espouse the “twin concepts of originalism and textualism.”
And that changed the whole ball game. According to Whelan, “interpreting legal provisions — including, of course, constitutional amendments and statutory revisions — according to the meaning they bore when they were adopted,” was the key to unlocking Roe‘s door through Dobbs.
It just took 49 years of work. Read the whole thing here.
That’s not to say that Dobbs hasn’t come under tremendous attack from the left. Read “In Defense of Dobbs” to find out how Ramesh Ponnuru answers those critiques one by one. By taking a look at the history of abortion law in America, the status of women, other implicated “substantive due process” rights, and the arguments based on deference to precedent, Ramesh rebuts the most common rejoinders.
“Roe was notorious for being poorly reasoned,” Ramesh writes. “Many supporters of unrestricted abortion ridiculed it. Nothing similar can be said of the decision that has finally, and rightly, excised it from our constitutional law.” Read Ramesh’s essay here.
Don’t miss the rest of this issue, including:
Mary Eberstadt on the meaning of Roe‘s end in “What the Nurses Knew.”
John O’Sullivan on the fall of Boris Johnson and the race to replace him in “Conservatives after Boris.”
Dan McLaughlin on “How the 2012 Election Deranged America.”
Andy McCarthy on Joe Biden’s verbal blunders in “The Confounder in Chief.”
And Jimmy Quinn‘s report on how the Chinese Communist Party is using TikTok to spy on Americans.
Finally, don’t miss Kyle Smith’s final Happy Warrior essay as NR’s critic at large: “Goodnight, Geniuses!“
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