Tuesday, November 21, 2023
Prof. Robert Pushaw (Pepperdine) has a comprehensive and magisterial article, "Defending Dobbs", posted. A perfect gift for your irritating, Casey-loving uncle at Thanksgiving! Here is the abstract:
In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.
Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting the Constitution as law. The Court tried to do so in Dobbs, without the Chief Justice’s support and without widespread popular approval. Hence, its educational task will be formidable, and perhaps impossible.
The foregoing themes will be detailed in four Parts. Part II examines the Court’s discovery in 1965 of a constitutional right to marital privacy, its awkward common law extension of that right to include abortion in Roe, and attempts by Justices and scholars to bolster Roe’s shaky constitutional footing. Part III describes how the three concurring Justices in Casey concocted an unprecedented version of stare decisis that allowed them to purport to follow Roe while substantially changing its legal framework. Part IV demonstrates that the Justices applied Casey’s malleable “undue burden” approach to reach any results they desired, as illustrated in cases concerning laws that either banned late-term abortions or that mandated certain safety standards for abortion providers. Part V analyzes Dobbs and defends the decision as restoring the idea of the Constitution as law.