Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In the ongoing debate over Dobbs v. Jackson Women’s Health Organization, Brown v. Board of Education has played an out-sized role.
For the conservative majority of the Supreme Court and its defenders, Brown is a powerful and widely admired illustration of the principle that long-standing precedents can and should be over-turned in the appropriate circumstances, even when they have induced substantial reliance. Dobbs’s defenders also see that decision, like Brown, as a victory for substantive justice and protection of a socially vulnerable and politically powerless group.
For the liberal and progressive dissenters and other critics of Dobbs, the two cases are easily distinguishable, and the Dobbs majority’s attempt to claim the mantle of Brown is a cynical subversion of everything that landmark decision stands for, properly understood. In particular, Dobbs embraces a fundamentally backward-looking approach to constitutional interpretation rejected by Brown and originating in segregationist resistance to that decision.
My view is much closer to the latter than the former, but I do not think that view can be easily defended without taking sides on the political morality of abortion regulation. Put differently, it is the outcome of Dobbs—and not the Court’s reasoning or method of interpretation—that most persuasively distinguishes it from Brown. The debate over Dobbs would be clearer and more productive if both sides kept this point more fully in view.
I explain further in a new essay, forthcoming in the Journal of American Constitutional History.