The Constitution, the Courts, and the Culture publication

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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