Balkinization: Interpretive Method in Dobbs and Brown

Interpretive Method in Dobbs and Brown

Andrew Coan

Critics of Dobbs v. Jackson Women’s Health Organization are correct that its quasi-originalist “history-and-tradition” approach is inconsistent with Brown v. Board of Education’s refusal to “turn back the clock” to the date of the Fourteenth Amendment’s ratification. The critics are also correct that the interpretive approach of Dobbs would threaten to undermine many other vital and popular constitutional rights—and other well-settled precedents—if applied consistently. But these important points are in tension with another critique of Dobbs, which holds that the majority in that case twisted or selectively read the historical record to support its conclusions.

The first critique holds that a backward-looking history and tradition approach predictably, almost inevitably, reinforces traditional status hierarchies. How could it be otherwise when that approach hearkens back to traditions originating from a society dramatically more hierarchical than our own? The second critique holds—or seems to hold—that the history and tradition approach only produced this result in Dobbs because the justices were incompetent or motivated their own moral and ideological judgments. The typically unstated implication is that a more objective and less ideologically motivated application of that approach would or should have led the Court to reaffirm Roe and Casey.

The first of these critiques is much more plausible than the second and also a much more fundamental indictment of the Court’s methodology in Dobbs. And yet: the bite of this critique is undermined—or at least complicated—by a simple and undeniable fact. The Court in Dobbs could easily have reached the same result under any of the approaches to constitutional interpretation embraced by modern liberals and progressives.

Virtually all of those approaches, from Dworkinian moral reading to David Strauss’s common-law constitutionalism to garden-variety living constitutionalism, accord an important role to moral judgment. Coupled with a moral judgment that abortion is essential to personal autonomy and equal citizenship, these approaches all can and have been invoked to support a constitutional right to abortion. But coupled with a moral judgment that abortion is akin to murder or otherwise gravely wrong, these approaches can all quite plausibly support the result in Dobbs.

To explain why Dobbs was wrongly decided under any of these approaches, the critics need to defend the constitutional right to abortion as a matter of political morality, including the legitimacy of courts deciding this question, rather than legislatures. The Court’s defenders need to defend the political morality of abortion regulation, including the legitimacy of legislatures, rather than courts, deciding a question that implicates core liberty and political equality interests.

Some of the arguments on both sides do defend these moral judgments, explicitly or implicitly. But most critics and defenders have avoided them in favor of debates over the legacy of Brown, the Court’s historical competence and democratic legitimacy, and the dead-hand problem. This is understandable, and the resulting debates are often illuminating. But they leave the core question in Dobbs not only unanswered but largely unengaged.

I explain further in a new essay called “Dobbs v. Brown.”

Posted 8:30 AM by Andrew Coan [link]