Kari E. Hong has posted Overturning Roe v. Wade: How Originalism's Rejection of Family Formation Rights Undermines the Court's Legitimacy and Destabilizes a Functioning Federal Government (83:5 Montana Law Review Online 1 (2022)) on SSRN. Here is the abstract:
On May 3, 2022, the leaked Supreme Court draft in Dobbs v. State of Mississippi forecasts the Court’s likely decision to overturn Roe v. Wade. There are three critical flaws in this draft decision. The first is, that by looking to the original intent of the Founders’ view of abortion in 1789, the Court elides that the Fourteenth Amendment was designed to correct the foundational defects in the Founders’ worldview that misapprehended how critical a person’s right to family formation is contributing to democracy. When the Supreme Court overturns Roe v. Wade, not only will states be able to ban and criminalize abortion, but the Supreme Court’s evisceration of the Fourteenth Amendment will mean that there will no longer be any logical or legal reason to prevent states to return to an era when they banned and criminalized birth control, interracial marriages, same-sex marriages, and parents’ desire to educate their own children.
The second fatal flaw in this decision is that it exposes the Roberts Court’s deployment of Originalism and Texualism as a subjective political project, which is thinly and poorly masked as objective truth. The conservative justices claim to be diving truth, but dictionaries are not meant to anchor democracy. The Roberts Court is returning to discredited judging philosophies of the 1800s when federal judges claimed they were oracles, capable of diving meaning that eluded all others. Instead of pretending that judging does not involve politics, the better means for the Court to salvage its legitimacy is to follow the path of Chief Justice Roger Traynor, who admitted judicial decisions are influenced by political choices, but defended the result with reasoning and transparency.
The third flaw with Dobbs is a claim that states can end the abortion controversy. The current state laws and proposed bills being developed in Dobbs shadow portend a future where states balkanize and seek to impose a rigid moral and religious order on its own residents and those outside of its state lines. The Roberts Courts has been steadily flexing its muscle by eroding the federal government’s ability to function as a unitary, regulatory entity. The contemporary recipe of a weakened federal government and empowered states is a dangerous one. In history, the Articles of Confederation ended with a new constitution and the rise of the Confederacy ended with civil war. The cure for the Court’s nosediving legitimacy problem, along with the Court’s degradation of a functioning federal government, is to restore Congress as a functioning co-equal branch that can respond to the Court’s decisions. Congress routinely used to modify or overrule Supreme Court decisions, as it once did until 2009, when Senator Mitch McConnell used the filibuster to obstruct all legislative action sought by a Democratic majority. The Founders never intended the Courts to have the final say in any matter. Rather, democracy functions when the three branches are engaged in conversation—because at any given time, the just result may come from the judiciary, sometimes the President, sometimes the Congress. Without having a conversation about the issues, however, inaction simply shuts down the debate, and a federal government is unable to respond to problems needing redress.
