Oral arguments DobbsChief Justice Roberts asked me a question that I didn’t think of about the relation between stare decisis, originalism and other forms of representation.
CHIEF JUSTICE ROBERTS – On stare decisis I believe the first thing you should look at is whether the issue at hand was incorrectly resolved. That’s something that I have never understood. Are you referring to legal doctrine and principles at the time it was made, or retrospect?
Roe –It is because Roe. There are many cases that were around Roe’s time, but not the same magnitude, and that went through the exact types of analyses that we would today call erroneous. But, how do you look at it?It’s likely to include a lot of cases we will say were incorrectly decided.
Where? Roe1973 decision, and the Court was clearly non-originalist. Instead, it was the exaggerations of the pragmatic Warren Court that were fresh. It would make up stuff because it could. Justice Blackmun was not able to engage in any historical analysis. The Fourteenth Amendment did, however, protect a right for abortion within the first two trimesters. This was the result of a thinly veiled attempt to create a viability line. It is not a matter of fundamental rights that abortions are allowed in some states prior to quickening.
Today’s Court is more formalist than ever and often leans towards originalism. It is possible to RoeIt was decided in 2021 as a case on first impression. There is no doubt about how it would end. This is evident.
Roberts asked an entirely different question. Roberts asked a different question. Should the courts consider “looking at it from today” when trying to determine whether or not a decision was wrong in order to stare decisis? [formalistic]Perspective” refers to the method that was used when the case came up for decision. Justice Blackmun’s practical legal philosophy is followed. Roe It was all very well. The formalistic approach of Justices White, Rehnquist and others in dissension made it difficult. Roe This was fatally wrong. Which one is correct?
Roberts asks what is Roberts actually asking? Or is he asking about originalism Is he asking him about stare decisis or originalism? Or both. Steve Sachs, Mike Ramsey and other authors have recently written that originalism is a distinct concept. An originalist judge may be faithful, even though he uses a flawed version of stare decisis. It’s not possible to disentangle these completely, I think. Roberts’s question is a good example.
You can even think about overruling RoeThe first to determine this is RoeWas wrong. To determine RoeWas wrong. One must decide whether originalism is a legitimate choice or if some kind of hippy/dippy jurisprudence rules. Can a loyal originalist say that starve decisis is based on non-originalist approaches?
Roberts might have asked Justice Thomas, and he would probably answer by saying that originalism should be followed all the way. All aspects of constitutional law, including stare decisis, still have originalism at their core. Originalism is still at the core of all aspects of constitutional jurisprudence, just like a Russian nesting doll.
This question needs to be rethought.