The Dobbs Decision Unleashes Rage and Revisionism

In the aftermath of the historic ruling in Dobbs v. Jackson Women’s Health Organization, politicians and pundits have denounced the Supreme Court justices and the Court itself for holding opposing views on the interpretation of the Court. Speaker Nancy Pelosi called the justices “right-wing politicians” and many journalists called the Court “activists.” Most concerning were legal analysts who fueled misleading accounts of the opinion or the record of this Court. Notably, it is precisely what the Court anticipated in condemning those who would make arguments “designed to stoke unfounded fear.”

Vice President Kamala Harris and others repeated the claims that same-sex marriage, contraceptives, and other rights are now in danger. The Court, however, expressly and repeatedly stated that this decision could not be used to undermine those rights: “Abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'” The Court noted:

“Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.”

Indeed, I cannot recall an opinion when the Court was more adamant in prospectively blocking the use of a holding in future cases. Only one justice, Clarence Thomas, suggested that the Court should reexamine the rationale for such rights but also emphasized that the majority of the Court was clearly holding that the opinion could not be used in that way. Thomas wrote:

“The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be under- stood to cast doubt on precedents that do not concern abortion.”

Nevertheless, on CNN, legal analyst Jennifer Rodgers echoed the common claim that this decision could now be used to unravel an array of other rights and “criminalizing every single aspect” of women’s reproductive healthcare. However, Rodgers went even further. She suggested that states could ban menstrual cycle tracking: “Are they going to be able to search your apps—you know there’s apps that track your menstrual cycle. You know how far are these states going to try and go?”

On ABC, legal analyst Terry Moran declared “We are in a new era where the reaching for the center to keep the court’s legitimacy in the eyes of the public, to keep the debate going, is over.” I do not want to be unfair to Moran. I understand that Moran was referring to how the Court would be perceived by the public, though many citizens obviously support this ruling.

The comment reflects the view of many that the legitimacy is now lost because a majority follow a narrow constitutional interpretative approach rather than the preferred broad interpretative approach. That sounds a lot like your legitimacy is based entirely on whether I agree with your constitutional views.

Moran said that this reflected a “new era” of the “activist court.” However, the Court has actually rendered a high percentage of unanimous or near unanimous cases. I have been writing for a couple years how the Court seems to be speaking through its decisions in issuing such rulings in contradiction to such claims of rigid ideology. Justice Stephen Breyer and other colleagues have swatted back such claims that this is a “conservative court” driven by ideology.

Even ABC itself has recognized this record, writing in an earlier story:

“An ABC News analysis found 67% of the court’s opinions in cases argued during the term that ends this month have been unanimous or near-unanimous with just one justice dissenting.

That compares to just 46% of unanimous or near-unanimous decisions during the 2019 term and the 48% average unanimous decision rate of the past decade, according to SCOTUSblog.”

None of that has stopped legal analysts from portraying the court as “activist.” Of greater concern are the attack on the justices themselves, including the entirely false clam that Justices Kavanaugh and Gorsuch committed perjury in their confirmation hearings.

One can obviously disagree with this interpretation. I have long disagreed with some of these justices on rights like privacy. However, this is a good-faith constitutional view that is shared by many in the legal profession. Of course, few law professors share this view because there are comparably few conservatives left on law faculties. There are even fewer conservative or libertarian legal analysts with mainstream media. That creates a misleading echo chamber as legal experts and media figures dismiss the decision of the Court as “activist” and “political.”

During the Trump Administration, many of these same figures denounced former President Donald Trump for his attacks on judges who ruled against his cases. Many of us noted that those judges had good-faith reasons for their rulings and their integrity should not be questioned. Yet, it now seems open season on any justice or judge who follows a more narrow, textual approach to constitutional interpretation.

Media figures and legal experts are not just content with disagreeing with the Court’s analysis but want to trash these jurists as craven, unethical people. Politicians like Rep. Cori Bush, D-Mo., called the justices “far-right, racist.”

There was a typical exchange on CNN Tonight between conservative former Politico reporter Carrie Sheffield and former Rep. Abby Finkenauer (D-IA). Sheffield said:

“I personally prefer that, but I know that people on the other side don’t prefer that. That is the beauty of federalism to say that people will migrate. They will vote with their feet at the end of the day. So, as much as I would like to see a federal ban, I know that is politically unlikely. So, that, I think, is the best compromise. In fact Ruth Bader Ginsburg said …”

Sheffield was then cut off by Finkenauer, who said, “Do not say her name tonight from your mouth.”

That is a curious moment since Ginsburg herself criticized the opinion as going too far. At The University of Chicago Law School, Ginsburg stated on the 40th anniversary of Roe v. Wade that Roe gave

“the opponents of access to abortion … a target to aim at relentlessly and attributed not to the democratic process, but to nine unelected old men.” She added that “the history of the year since then is that the momentum, momentum has been on the other side. The cases that we get now on abortion are all about restrictions on access to abortion and not about expanding the rights of women.”

On “The David Rubenstein Show: Peer-to-Peer Conversations” in 2019, Ginsburg noted:

“The court had an easy target because the Texas law was the most extreme in the nation,” she maintained. Ginsburg explained that based on the Texas law at the center of Roe v. Wade, “abortion could be had only if necessary to save the woman’s life” with no exceptions for rape or incest.

I thought that Roe v. Wade was an easy case and the Supreme Court could have held that most extreme law unconstitutional and put down its pen,” she added. “Instead, the court wrote an opinion that made every abortion restriction in the country illegal in one fell swoop and that was not the way that the court ordinarily operates.”

Finkenauer’s insistence that pro-life advocates could not utter the name of Ginsburg did not apply to pro-choice advocates, even those who blame the late justice for the Roe reversal. I wrote during Ginsburg’s service that she was taking a huge risk by declining to retire to guarantee that her seat would be filled by someone appointed by a Democratic president. I specifically noted that Roe could be reversed and her legacy lost due to a desire to remain on the Court for a couple more years. I was criticized for that column. However, now liberals are raising that decision and blaming Ginsburg for Dobbs.

Hollywood Reporter columnist Scott Feinberg tweeted “the terrible irony is that her decision to stay too long at the party helped lead to the destruction of one of the things she cared about the most. Sadly, this will be a big part of her legacy. Journalist Eoin Higgins was more direct “Thanks especially to RBG today for making this possible.” In a particularly offensive posting, writer Gabrielle Perry  declared “Ruth Bader Ginsberg is slow roasting in hell.”

This reckless rhetoric is becoming the norm in our discussions of this and other legal controversies. We are losing a critical mass of mature and sensible voices in discussing such cases. Instead, analysts are expected to reinforce a narrative and amplify the anger in the coverage of such cases. That is a great loss to our profession and only will fuel the unhinged rage of some who only consider the conclusion, and not the analysis, of this opinion.

 

315 thoughts on “The Dobbs Decision Unleashes Rage and Revisionism”

  1. Jonathan TURLEY is to lazy to put picture of Amy phoney Barrett who with five others will be known for this abomination of a decisionFor infamy.

    Change the photo; the late great RBG does not deserve this asssociation.

  2. Women are going to die in America this year because of this, and you’re talking about civility and calm legal analysis? You’re a disgusting, disgusting creep.

    In the 19th Century, the Fugitive Slave Clause required people to either act illegally or immorally. Evil, disgusting creeps like you hid behind textualism. Bold and honorable heroes broke the law to save humans from mistreatment.

    A Constitution that doesn’t afford people basic human rights isn’t worth its weight in toilet paper. And a legal scholar who can’t condemn an evil, disgusting decision isn’t worth his weight in shit.

  3. The real question is: Should the government be sticking its big nose into people’s private lives? The abortion debate goes back at least to the days of Hippocrates. It’s not going to be solved here. The real issue is how much control should governments have over people’s autonomy. There’s no question that the events of the last two years have put a cavernous dent in people’s autonomy.

  4. “the opponents of access to abortion … a target to aim at relentlessly and attributed not to the democratic process, but to nine unelected old men.”
    ++++++
    Weren’t the seven justices who held for Jane Roe “unelected old men?”

    1. Yes, that was indeed the point Justice Ginsburg was making when she invoked the “unelected old men.” She was saying that conservatives were citing the same problem with Roe that liberals had cited during the New Deal Era, when the Supreme Court repeatedly struck down progressive economic legislation that had been championed by FDR and passed by Congress. The Court repeatedly struck down this legislation by saying that it violated freedom of contract, property rights, etc.; in other words, based on considerations that aren’t found in the text of the Constitution. Eventually the court reversed course and said “we can only strike down acts of the legislature if they facially violate the Constitution or if they involve a manipulation of the political system in order to stifle the democratic process. The role of judges in a democratic country is to enforce the letter of the rules, not to impose our own political views on the rest of the country.”

      Years later, opponents of the Roe decision observed that the SCOTUS which rendered it was beginning to resemble the Nine Old Men: they were legislating from the bench rather than simply evaluating the legality of the law against the text of the Constitution. Ginsburg was well-aware that the phrase “Nine Old Men” is a dirty word in con law, and she was also aware that the analogy offered a potent criticism of Roe. Thus, she made it clear (if indirectly) that she wished that the Roe court had struck down the Texas abortion law at issue, but not on grounds that there was a generalized Constitutional right to abortion. Rather, she wished it had been struck down on narrow, case-specific grounds.

      I think in this respect, Ginsburg was trying to model her overall legal strategy on what Thurgood Marshall had done to advance civil rights cases in the 1940s. Rather than swinging for the home run right away, Marshall “started small” with what you might call a “snowball strategy” to build momentum for progressively more and more momentous decisions.

  5. There are good nations, and evil nations.
    Evil nations should not get to do the same kinds of things that good nations can do.
    Good nations can point missiles at evil nations, but evil nations should not point missiles at good nations.
    It is okay for Good to threaten Evil.
    Evil should not threaten Good.
    The United States is Good.
    Russia is Evil, as evidenced by what is has done, and continues to do, in Ukraine, and the form of government that it has.
    There is no moral equivalence.

  6. If turnabout is fair play, then Ukraine should launch missiles at Moscow. Ukraine will stop when Russia stops.

    1. “If turnabout is fair play, then Ukraine should launch missiles at Moscow. Ukraine will stop when Russia stops.”
      ******************
      Ukraine has been “stopped” already. Russia rules the east and the coast. The Ukrainians have no defense against the artillery munitions that Russia supplies at a rate equal to 10 times our own abilities to produce. Two Ukrainian battalions are encircled along with the City of Sievierodonetsk. Zelensky’s expiration date is near. Read the papers.

  7. Your premise that everyone must live in constant fear of Russia and what Russia might do is unacceptable to me. That is no way to live.

    1. We deliberately crossed a long known red line by pushing NATO onto Russia’s front step. We always knew that this is how Russia would respond and yet we went straight ahead and did it anyway. You should fear the incompetence and corruption of our leadership, not Russia. The Russian economy/military is roughly 5% of the combined NATO allies’- you shouldn’t fear them. They asked for a security treaty guaranteeing Ukraine’s neutrality we said “no” and continued training and equipping the Ukrainian Army. What if the BRICS form their own “defensive” alliance and then set-up shop in Mexico? How do you think we would respond? We are the one’s who are being irrational.

  8. So….giving people the weapons that they need to save their lives gets people killed??? That’s nuts.

    1. It’s not “nuts.” War is a failure at Diplomacy. We didn’t even try to negotiate with Putin. For political/politicians’ gain, not civilians good are we poking in Ukraine. Americans don’t benefit at all by this refusal to keep Ukraine neutral. American politicians benefit; Burisma, Hunter Biden, Romney, bio labs. Why was Zelensky taking potshots at Russia before the war? That certainly wasn’t him saying that despite wanting to join NATO, He would stay peaceful.

      We shouldn’t have been in Ukraine with biolabs and Ukraine was not neutral. The people of Ukraine intermingle with Russians, are related to them (intermarried). They know what’s up.

      Putin wasn’t the only aggressor. Many Western politicians are richer from Ukrainian money schemes.

      If Putin is as sick as they claim, I wonder if he didn’t think to put an end to the aggression of Ukraine/NATO before he’s gone? He loves his country.

      Also, as strategies go, getting us to use up our munitions/assets in Ukraine before China attacks Taiwan is smart.

      We left billions of equipment in Afghanistan, used much in Ukraine and so what will we have left to fight China? Trump rebuilt our military but his good work is being undone at the same warp speed that our gas prices are soaring.

  9. I see herein there is no valid argument of sanity to those so pro death they choose killing children in the womb as a right of convenience instead of the murder it truly is. To define life so callously as a ‘thing , non entity’ unless they deem it so is wrong by all common sense and fact. So if a violent someone kicks a pregnant woman in the belly and causes the death of her child…you are AOK with that ?. Afterall it’s not human by the leftist convoluted logic. Sick narcissistic people out there.

    1. Of course it’s human. But it’s not yet a person.

      And if you don’t understand the difference between killing a fetus without a woman’s consent and killing it with her consent, then you have serious problems. Do you also equate/confuse rape and consensual sex?

  10. Russia feels at liberty to run roughshod over Ukraine and Kyiv because the physical consequences to Russia have been next to nothing. Ukraine needs ballistic missiles and bombers so that Moscow and other Russian cities can be destroyed just as much as Ukrainian ones have been. When Russia starts suffering consequences, it will reconsider what it is doing in Ukraine. Such missiles and bombers, these things exist. They can be given to Ukraine so that the Ukrainians can start using them. Why aren’t they? Do Western nations want the war to end or don’t they? Or do they want to see Ukraine slowly pulverized to nothing? More could be done to help Ukraine, but for some reason it’s not being done.

    1. This is the sort of thinking that gets everyone killed. I shall guess you are a US Democrat.

    2. “Such missiles and bombers, these things exist. They can be given to Ukraine so that the Ukrainians can start using them. Why aren’t they?”

      They’re trying other things first like provoking Russia via Lithuania/Israel/Syria and delivering new equipment and ammo(too little and too late.) The pressure is on to either *really* escalate or seek peace. I think they will escalate because Russia’s demands now include not just Crimea, Luhansk, and Donetsk, but also Kherson, Kharkiv, and Zaporizhzhia. Soon we’ll also have to add Odessa to that list thereby land-locking what remains of Ukraine. To accede to Russia’s demands would cause a political earthquake in the US and Europe. However, any more steps towards escalation are fraught with nuclear peril. Russia also has big economic cards to play: cutting off energy exports to Europe is an obvious one. We should fold.

      Right now I put the total(pro-Russian + pro-Ukrainian) dead at 50k+. The Western media is not talking about the large numbers of dead. A couple of days ago, Russia claimed to have killed 800 Ukrainians in one day. The Ukrainians themselves have talked of up to 500 Ukrainian soldiers being killed in a single day. We should all wake up.

      I like to think that the coming defeat of the Ukrainian army in the Donbas will trigger a “come to Jesus” moment for Ukraine and the West. But they will have to come begging because the Russians are confidant and angry. They also believe the West will inevitably break any agreement that is made so whatever terms are offered will be especially harsh. The people and political leadership in Russia see this as an existential war vs Europe and the US. We should be very worried.

    3. Ukraine needs to become a neutral country. Independent n of the West and it’s billions.

      Diplomacy, not bombs. Bringing in Chechens? Lost all my support.

  11. Is what Putin is doing in Ukraine illegal? Criminal? Should criminals be arrested and imprisoned?

    1. Judging by the standards of our wars in Serbia, Iraq, Libya, Syria, Yemen, etc., I would say obviously not. If you are serious about trying leaders for illegal wars then let’s start with W., Obama, both Clintons, etc.

  12. OT: It’s been a few months since Turley wrote anything about the war in Ukraine, and he wonders why he doesn’t understand the cause of the war! As I wrote before, Ukraine is losing badly and I questioned how the West(governments, media, and public) will deal with an inevitable total defeat(military, political, and economic). The wholesale propaganda we in the West are exposed to on a daily basis was always going to run
    straight into a wall of reality and over the past couple of weeks we’ve seen the media begin to acknowledge the utter futility of our situation. Slowly but surely the media is letting the people know the war is lost:

      1. That’s why I started with “OT:” for “off-topic.” Yes, Mearshiemer’s insights are invaluable.

        1. I did not read that article until now…he makes the same points. There are two plausible ways to end the war that neither I nor he mentioned: one is a military coup, and the other is a simple collapse of the army.

          After Russia takes Sloviansk/Kramatorsk it can be said that the war in the Donbas is over. That’s one to two months away…that’s an additional 10k – 20k+ dead Ukrainian soldiers minimum bringing their total dead to upwards of 60k+. It also appears that a new assault on Kharkiv is imminent…more dead. At some point, the Ukrainian military may well go into full revolt either by refusing to fight or through a violent military coup. A military coup would be quite an ironic ending to the war.

          1. There’s a third way this war ends. Western provocations continue and the war escalates into a nuclear exchange. My money’s on that one.

  13. A fetus is meant to become a viable, independent entity.
    It can be, if left to its own devices.
    That’s what happens in nature.

    1. Most abortions occur in the embryonic phase, not the fetal phase. A majority embryos die of natural causes, often prior to implantation, sometimes after.

        1. That nature does not intend that it “is meant to become a viable, independent entity.” Nature is fine with more than half dying before viability.

          1. Nature kills infants after birth – that does not mean you can murder them.

  14. I see Merrill Garland is in Ukraine investigating Russian war crimes. He evidently doesn’t have enough on his plate domesticity.

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Res ipsa loquitur – The thing itself speaks
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