Cross posted from the Dobbs thread in Great Debates:
Thoughts on the Dobbs opinion:
Originalism - Dobbs is clearly an originalist opinion, and it highlights the many flaws in an already horribly flawed method of Constitutional interpretation. The most important, and the reason the majority uses an originalist method, is that it is cover for conservative, politically motivated justices to deny rights to anyone other than those who had them in 1787. So rights that would be protected if it involved white landowning men, get to be denied to women (bodily integrity and medical decision-making), homosexuals (marriage, sexual relations), and minorities. Thus, since women were mostly property and had very little rights in 1787, the government is allowed to deny them rights in 2022. Recognizing the reality of institutionalized racism/sexism/supremacy and defining rights based not on who had them in 1787 as originalism does, but rather by their true nature is much more in line with both the 9th Amendment and the very rationale for having a Constitution rather than a group of legalistic statutes. These flaws are why Originalism has long been rejected by SCOTUS as a valid method of constitutional interpretation.
The Roe opinion - There are very few justices and scholars who believe Roe is a well-written judicial opinion, so it was always very vulnerable to attack. Using “emanations and penumbras” and a vague “right to privacy” rather than a solid legal analysis with more precedential references put the right to bodily integrity on shaky footing in the first place. Although later decisions upholding Roe somewhat ameliorate the poor reasoning in Roe, it is the tenuous legal reasoning of Roe that made it so easily overturned. This is also true for Justice Kennedy’s opinions in Lawrence and Obergfell, two more poorly written, easily mocked, legal opinions.
Substantive Due Process - Like the Roe opinion, substantive due process is low hanging fruit for the majority. It’s a judicially created theory to accomplish what was clearly stated in the 9th Amendment: that the Constitution was meant to protect rights that are not specifically enumerated in the Bill of Rights. It is also a mess of multiple interpretations and fuzzy rationale that makes it so much easier for the current court to overrule cases based on it.
Stare Decisis - The majority opinion pays lip service and nothing more to the idea that SCOTUS should be reluctant to overturn precedent. As the dissent pointed out: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.” This case, as well as Kennedy v. Bremerton and those cases coming down the pike, are the reason confidence in SCOTUS is pathetically low.
They are lying to you - The only kind thing I can say about Clarence Thomas is that, at least he is honest about what the Dobbs opinion means for all of the SDP cases. The majority, however, opts instead to lie to you and pretend that the rationale they use does not mean other precedents can be easily overturned. Of course lying to you seems to be the Modus Operandi of these activist, conservative justices (just read how they lied about the facts in Kennedy v. Bremerton). If the majority is consistent in its rationale in Dobbs, then we are not long from seeing the overturning of Lawrence, Obergefell, and Griswold. Again, as the dissent pointed out: “The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
TLDR: Dobbs is a politically motivated, activist ruling relying on a highly-flawed, oft-rejected method of Constitutional interpretation. And it’s just the beginning…
