The role of evangelical Christians, including evangelical Catholics, in the process of changing the composition of the judiciary was more opportunistic than logically driven. The Federalist Society orchestrated the campaign, for sure. From what I understand, the Federalist Society is perhaps not so interested in eroding the Establishment Clause, so what might their horse be in this race?
When Court observers say in so many words that they saw Dobbs coming, they often invoke the Federalist Society and the work it has put into bringing the Court to this decision. All of those principles came under attack from rightward-leaning jurists in ways that, while they did not legally support the overruling of Roe, made it clear that the underlying agendas of the judges in question would demand that Roe be ripped from the fabric of constitutional law. Wade, and emanated from it in the years since, included principles of gender equality, personal privacy, bodily autonomy, and the separation of church and state. The legal and philosophical principles that converged in Roe v. When the Supreme Court first agreed to hear the challenge to Mississippi’s fifteen-week abortion ban, the only question presented by the parties for review was a quite narrow one-whether all pre-viability prohibitions on elective abortions are unconstitutional-but the Court itself, indulging a practice that has become increasingly common, specifically directed the litigants to brief the broader question of whether Roe should be overruled in its entirety.Īs soon as Amy Coney Barrett was confirmed, after the confirmations of Neil Gorsuch and Brett Kavanaugh, the fate of Roe, and of the many broad constitutional principles that converged in that decision, was effectively sealed-not because of any change in society or the culture or any shift in legal doctrine, but because of an increasingly evident tendency on the part of the justices to do whatever they could get away with as a majority. Laurence Tribe: Tendencies from the last few years, more political than legal, certainly telegraphed to observers like me what the five justices led by Alito were going to do, even as Chief Justice Roberts kept resisting-in every area except voting rights and racial justice-decisions on grounds broader than strictly necessary because they would imperil the Court’s legitimacy. This week, we corresponded about the future of abortion rights in the United States, the influence of the Federalist Society, and the four-color theorem.ĭaniel Drake: In “Deconstructing Dobbs ,” you argue that Dobbs v. Jackson Women’s Health Organization is a legally unprecedented decision-that it does not build on any particularly rigorous set of legal theories or precedents-but you also note that it seems to rise out of a recent tradition of “decisions systematically eroding the…‘wall’ of separation between church and state.” You cite the decision in Kennedy v. Bremerton School District, but did other decisions or legal tendencies from the last few years telegraph how the majority came to overturn Roe ? Now a professor emeritus, Tribe is still one of the nation’s busiest legal observers and commentators. At Harvard Law School, he taught a generation of the nation’s major legal minds, including Barack Obama, Elena Kagan, Merrick Garland, and John Roberts.
In 1973, he wrote for the Harvard Law Review the principal legal defense of the Court’s decision in Roe. Tribe has been at the forefront of American legal scholarship for more than fifty years. “This is unlikely,” he warns, “to be the final step on the treacherous path the Court has chosen.” His is a thorough indictment of the illogic, legal inconsistencies, and arrogance of the Supreme Court’s ruling to overturn Roe v. Tribe in the Review’s September 22 issue. “The theocratic movement to advance religiously based governance-the antithesis of genuine religious freedom-has installed as the law of the land the essentially unreasoned position advanced in Dobbs,” writes Laurence H.
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