When Originalism Isn’t Originalist

Because I can’t stop writing (even off-blog) about Dobbs

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

Law & Liberty has just posted an essay I wrote about (what else?) Justice Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health, under the title… (new line for added clickability!)…

“Kindling a New Originalist Fire”

My piece is an indirect rebuttal to a Wall Street Journal article from a few weeks ago entitled, “Justice Alito’s Originalist Triumph”. That headline sounds right, but the problem is it isn’t true.

From my article:

…Decades later, the alliance of originalists and pro-lifers (among others) earned a five-vote majority on the Supreme Court, and, in 2022, that majority chose to confront Roe in the case Dobbs v. Jackson. The climactic showdown had arrived, not only for the pro-life movement, but for the finely-honed edge of originalist textualism, at last ready to do battle with its primordial antithesis.

At least, that’s what you might have expected. 

The leaked draft majority opinion, by the “practical originalist” Justice Samuel Alito, would indeed be a significant victory for pro-lifers, should it become official. Yet the draft not only does not depend on originalist textualism; it bears almost no evidence of being influenced by originalism at all!

I’d share more here, but L&L paid good money for these words and they deserve your clicks.

So read the whole thing here.

Since I couldn’t do so in the article, I would like to mention that I am indebted to Professor Lawrence Solum, who did a tweet on May 6th that got me thinking, and that thinking led to this essay. (His tweetstorm adds valuable context that my article doesn’t touch.)

Lawrence Solum @lsolum1/10 Thread on the Originalism, the Adversary System, and the Role of Appellate Courts. Judge Alito’s draft opinion in Dobbs is not an originalist opinion. Two of the many reasons are: (1) the adversary system, and (2) the role of appellate courts.

Lawrence Solum @lsolum1/4 Alito’s opinion is straight from Scalia’s playbook; it is living constitutionalism in its constitutional pluralist flavor from top to bottom. The Glucksberg approach assumes substantive due process but attempts to cabin it on the basis of historical practice. https://t.co/IQD6L6PIs5May 6th 202210 Retweets34 Likes

ADDITIONAL BONUS CONTENT FOR DE CIVITATE READERS ONLY: Here is the Robert Bork Uncyclopedia page, which I had nothing to do with, but which made me laugh quite a bit. “The Anti-Trust Paradox!” Man, what a bunch of cards…