And the confusions of conservative jurisprudence.
A year has now passed since the Supreme Court’s decision last June in Dobbs v. Jackson Women’s Health Organization, in which six conservative Justices finally overturned Roe v. Wade (1973). True to the code of what has been offered to us over the past 40 years as “conservative jurisprudence,” the Justices accomplished that end while deliberately steering around the moral substance of the matter.
Conservatives spent years recoiling from judges with astounding new moral insights, who invented novel “rights” not to be found in the text of the Constitution. But instead of showing what was specious in the moral reasoning that produced those supposed new rights, the conservatives hit upon the strategy of maintaining their integrity as judges through the clever stroke of avoiding moral reasoning altogether. They settled into the glib notion that once a judge departed from the text of the Constitution, he was merely “looking inside himself,” with judgments that were wholly “personal”—as though there were indeed no moral truths to be found outside the Constitution, even as vexing moral judgments remain, stubbornly, at the heart of our gravest cases. And in this manner, with the winds of doctrine at their back, five intrepid Justices and one reluctant recruit sailed into the task of slaying the Great White Whale of Roe v. Wade.
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