Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, September 9, 2022

An Inaccurate and Partisan Attack on Dobbs in the Commonweal Symposium

Commonweal is running, in its new issue, a symposium called "Abortion After Dobbs."  One of the contributions, "Good Samaritans," is by my Notre Dame colleague, Meghan Sullivan.  Unlike Meghan, I don't think the Judith Jarvis Thomson violinist hypothetical helps Catholics -- or others -- think clearly about abortion regulation, because it does not take account of unchosen, but still real, moral obligations between persons. Still, check it out.

Another of the pieces, "The High Price of Dobbs", by  George Scialabba, is, well, really bad, and I'm surprised that Commonweal included it. As one friend put it, it reads like a mad-lib assembled from the Twitter feeds of Sheldon Whitehouse and Larry Tribe.  To be sure, the author's priors are clearly set out at the outset: "the fetus—sans thoughts, sans emotions, sans experiences, sans everything—[does not] have any rights that override those of the woman of whose body it is merely an infinitesimal part during the time when more than 90 percent of abortions currently take place." This is both biologically and morally wrong, but . . . there it is.  After some more ipse dixits, the author moves to what he thinks is an analysis of the Supreme Court's current (polls tells us) unpopularity.  He says this unpopularity is not surprising, because "[f]ive of the six conservative justices were appointed by presidents who had not won the popular vote."  So, (a) the popular vote is legally irrelevant; (b) Justices Breyer and Ginsburg were nominated by a president who did not win the popular vote (but one feels confident the author does not hold that against them); (c) Justice Scalia was nominated by a president who won one of the biggest landslides ever (but one feels confident the author does not credit the late justice with that); and (d) in fact, Justices Thomas, Alito, and Roberts were nominated by presidents who won the (again, legally irrelevant) popular vote.

The author then moves to some criticisms of partisan districting, and ignores the fact that both parties -- when they can, where they can, to the extent they can -- use districting to their own advantage.  Of course it is true that, in some states, Republicans have a higher percentage of legislative seats than they have registered voters.  The same is true, for Democrats, in some other states.  Demography, sorting, and migration are what they are.  And, in any event, none of this is relevant to the composition (or voting and reasoning) of the Court.  It is also a bit much to harangue about anti-majoritarianism in the context of denouncing a judicial opinion that . . . returned a question (which the Court had implausibly removed from majoritarian resolution) to democratic decisionmaking.


Garnett, Rick | Permalink


                                                        Feed You can follow this conversation by subscribing to the comment feed for this post.