Friday, December 2, 2022
Reva Siegel (Yale) recently posted to SSRN her new article Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance (Texas Law Review, Forthcoming). Here is the abstract:
This Article examines originalism’s role in overruling Roe in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism’s authority, the Article shows that the conservative legal movement has practiced originalism as form of living constitutionalism that makes our constitutional order less democratic in several important ways.
To demonstrate how this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it.
The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration.
The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.
Reva Siegel (Yale), Serena Mayeri (Penn), & Melissa Murray (NYU) have recently posted to SSRN their new article Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context (Columbia Journal of Gender and Law (Forthcoming). Here is the abstract:
In two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.
Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion.
Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to explain why group-based rather than facially-neutral regulations best serve its ends, especially when the challenged laws perpetuate historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends.
Our brief asks: Could the state have pursued these same life- and health-protective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that help families flourish.
Naomi Cahn (UVA) & June Carbone (Minnesota) have posted to SSRN their article Supporting Families in a Post- Dobbs World: Politics and the Winner-Take-All-Economy. Here is the abstract:
The pathway to stable and secure middle-class status involves two elements: the ability to postpone family formation to facilitate human capital investment and the ability to marshal the emotional and material resources needed to address children needs. Yet, the ability to meet the middle-class threshold for family investment is under assault as the class-based Covid-19 pandemic vulnerabilities and the Supreme Court’s decision in Dobbs illustrate. While the American Rescue Plan demonstrates the federal government’s considerable ability to address children’s needs, Dobbs represents the judicial assault on federal power and the ongoing devolution in responsibility for family support from the federal government to the states, a devolution that increases regional, racial, and class-based inequality.
The Article explains the three factors that exacerbate the regional differences. First, we show the development of a new federalism over the past half century that has granted states more authority, undercutting federal ability to establish a floor for available benefits such as health care. Second, we show that increased partisanship and the resulting single party control in many states contributes to the election of more extreme state legislators, with little accountability to voters. Third, we maintain that legislatures have become more responsive to well-funded national business and activist groups and less concerned about local needs.
This analysis turns the conventional justification for federalism -- that, particularly in family law, smaller units of government are more in touch with local conditions and needs – on its head. Partisan polarization and the outsized influence of lobbying groups on state legislations suggests that the federal government may be better poised to advance family interests than the states. The nation has a collective interest in the well-being of its children, particularly as the importance of investment in human capital becomes increasingly important in an economy rewarding greater education and technological sophistication. The federal government is also better suited, for a variety of reasons, to coordinate the creation of a new family infrastructure. An era of greater inequality, rather than make smaller units of government more responsive to local conditions, makes them more susceptible to the influence of individuals and entities willing to spend near-unlimited sums of money to produce desired results. We use abortion as the lens of our analyses, rendering visible the intersectional nature of this state-sponsored violence: the misogyny of existing government policies (lack of contraception, coerced pregnancy, no support for resulting families), combined with class (wealthier women pay for their own abortions), race (Black women are more likely to have abortions), and the need for investment in children in the new economy.