The Constitution, the Courts, and the Culture

The justices who dissented from the Supreme Court’s denial of the abortion providers’ request for emergency relief against the Texas Heartbeat Act might think that they have a path to winning a majority in the DOJ case against the law. But the path is steep and deceptively treacherous.

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.