The Constitution, the Courts, and the Culture publication

A Reply to Hadley Arkes on Originalism and Roe

Edward Whelan

There are (at least) six justices on the Court who ought to recognize in the pending case of Dobbs v. Jackson Women’s Health Organization that the originalist case against Roe is overwhelming. It is neither sound in principle nor helpful in practice to try to persuade those justices that they may overrule Roe only if they make a moral argument against abortion.

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National Review Online / October 4, 2021

Hadley Arkes’s Straw-Man Argument for a ‘Better Originalism’ on Roe

Edward Whelan

There is plenty of room for methodological disputes within originalism, but a recent critique of the dominant originalism is unpersuasive.

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National Review Online / September 30, 2021

Denial Should Have Been Unanimous

Edward Whelan

Last night the Supreme Court denied abortion providers’ beyond–audacious request for emergency relief against the Texas Heartbeat Act by a 5–4 vote. The feebleness of the four dissents shows that the denial should have been 9–0.

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National Review Online / September 2, 2021

Chief Justice Roberts, Judicial Restraint, and Dobbs

Edward Whelan

For Chief Justice Roberts and other proponents of judicial restraint, stare decisis considerations should be especially weak when—as with Roe and Casey—the precedent under examination has usurped the democratic processes.

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National Review Online / August 25, 2021

Chief Justice Roberts, Stare Decisis, and Dobbs

Edward Whelan

For anyone trying to understand how Chief Justice Roberts’s jurisprudential principles apply to the question whether he should vote to overrule Roe and Casey, the Chief’s concurring opinion in Citizens United v. FEC (2010) is essential reading.

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National Review Online / August 24, 2021

A Quick Guide to Today’s Opinions in Fulton v. City of Philadelphia

Edward Whelan

In one of the most-watched cases of the term, the Supreme Court unanimously ruled today in Fulton v. City of Philadelphia that the city of Philadelphia violated the free-exercise rights of Catholic Social Services, a Catholic foster-care agency, by conditioning CSS’s continued provision of foster-care services on its agreeing to certify same-sex couples as foster parents.

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National Review Online / June 17, 2021

Doubts About Constitutional Personhood

Edward Whelan

The only plausible path to imminent legal protection of the unborn has as its first step overturning Roe and restoring abortion policy to the states.

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First Things / April 8, 2021

The Unsoundness and Imprudence of “Common-Good Originalism”

Edward Whelan

The immediate aftermath of Justice Amy Coney Barrett’s appointment to the Supreme Court is a strange time to urge conservatives to repudiate Justice Antonin Scalia’s twin interpretive methodologies of originalism and textualism.

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Public Discourse / March 2, 2021

Justice Barrett Would Extend Scalia’s Legacy

Edward Whelan

Amy Coney Barrett’s record, both as a judge and in her earlier career as a distinguished law professor at Notre Dame, shows both her profound commitment to Justice Scalia’s principles of textualism and originalism and her stellar ability to implement them.

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Why Finding Justices Who Will Overturn Roe v. Wade Hasn’t Been Easy, And What to…

Edward Whelan

Any effort to seat justices who will overturn Roe needs to take account of the serious political obstacles that stand in the way. We must not surrender in the face of these obstacles. But we must recognize them in order to navigate through them.

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Public Discourse / August 25, 2020

Senator Hawley’s Judicial Test on Roe v. Wade Won’t Work

Edward Whelan

Political realities can be confronted and transformed, but they cannot simply be imagined away. Unfortunately, Senator Hawley’s pro-life litmus test promises no more success in the future than it would have had in the past.

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Public Discourse / August 24, 2020

McConnell’s Supreme Court Tactics: Politics 101

Edward Whelan

When the president and the Senate majority are from the same party, look for the swift confirmation of a Supreme Court nominee.

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National Review Online / January 2, 2020