I find the “deeply rooted in the Nation's history and tradition” test extremely flawed, and specifically the manner in which it was used in Dobbs. The Court looked back at antiquated common law and the criminalization of abortion in 1868. As we know, women were not able to "engage" in the democratic process until 1920 when the 19th Amendment was passed. How can the Court rely on a test where the rights of that group were not even represented at that time? It is incredibly ironic considering the Court decides to leave it to the states and the "democratic process."
Reading Planned Parenthood v. Casey, I believe the Court was attempting to create a shield by not going into detail on women's autonomy and individual liberty. Rather, they focused on stare decisis, which I think was a statement: "if you overturn Casey, the Court will lose its legitimacy." By refraining from going into more details on a woman's right to "choose," the Court seemed to be rather intentional in remaining neutral to protect its holding and the potential argument that they were acting as "biased Justices." However, this strategy failed, and I agree with the dissent of Dobbs--it was solely because of the makeup of the Court.
Yes, Casey’s silence on women’s autonomy was deliberate. Whether that was wise is debatable: it may have preserved Roe in the short term, but it also meant the Court effectively elevated its own institutional reputation above a full-throated defense of women’s constitutional rights. This tradeoff left the right more fragile in the long run.
I believe the dissent in this case made a strong argument when it pointed out that the majority's reasoning relied on the fact that the right to an abortion was not "deeply rooted in the nation's history," but neither were most of the other rights the majority claims it is not tampering with. I believe that this argument from the dissent significantly undermines the majority's reasoning by highlighting the selective nature of its historical perspective. Abortion was not widely accepted when the 14th Amendment was ratified, but neither was same-sex marriage, and as Justice Kavanaugh's concurrence highlights, this ruling should not affect the rights guaranteed in cases like Griswold, Eisenstadt, Loving, and Obergefell. Regardless of whether you believe Constitutional rights should evolve with society, there at least needs to be some level of consistency in the argument.
Here’s something to chew on: in Dobbs, the Court chose to frame the question very narrowly—was abortion itself historically accepted in 1868? That choice let the majority say no constitutional right exists. But it could have gone another way, asking instead whether broader principles of liberty and family autonomy were recognized, as the Court did in Meyer and Pierce. That difference in framing explains why abortion was struck down in Dobbs, while rights like same-sex marriage in Obergefell might continue to be upheld under a more general principle. The real fight isn’t just about history but about which lens the Court decides to use.
The more I read constitutional opinions the more I believe that legal analysis is oftentimes arbitrary in its execution. It seems like the Justices can twist their logic in any manner to extract their goals out of an issue. One of my favorite thinkers, Thomas Sowell, talked about this phenomenon in intellectual circles, where facts and logic give way to "peer consensus." I feel that one day Dobbs too will be overruled in a similar manner and cement the court as a political weapon of convoluted reasoning.
Here’s another way to look at it: what looks like “twisting” may also be the Court working through deep disagreements about first principles: what counts as liberty, what role history should play, how much power judges should have versus legislatures. That’s why two smart justices can read the same Constitution and come out worlds apart.
Maybe the real test isn’t whether the reasoning is perfectly “neutral” but whether the Court is being honest about the values driving it. Would that change how you see cases like Dobbs?
It's interesting to see how justices can interpret the same Constitution in such radically different ways - some of them viewing it as frozen in 1868 while others view it as a living document. So, does relying on a document written by a limited group, in this case majority white men, risk excluding todays broader understanding of rights?
That’s one of the big debates in constitutional law (between originalists and living constitutionalists). The Court often ends up in the middle, using historical grounding but also recognizing evolving concepts of liberty and equality, like in Brown or Obergefell. So, it’s less about one approach being right or wrong and more about how each handles the risk of either freezing progress or untethering the law from its democratic roots.
I find the “deeply rooted in the Nation's history and tradition” test extremely flawed, and specifically the manner in which it was used in Dobbs. The Court looked back at antiquated common law and the criminalization of abortion in 1868. As we know, women were not able to "engage" in the democratic process until 1920 when the 19th Amendment was passed. How can the Court rely on a test where the rights of that group were not even represented at that time? It is incredibly ironic considering the Court decides to leave it to the states and the "democratic process."
Reading Planned Parenthood v. Casey, I believe the Court was attempting to create a shield by not going into detail on women's autonomy and individual liberty. Rather, they focused on stare decisis, which I think was a statement: "if you overturn Casey, the Court will lose its legitimacy." By refraining from going into more details on a woman's right to "choose," the Court seemed to be rather intentional in remaining neutral to protect its holding and the potential argument that they were acting as "biased Justices." However, this strategy failed, and I agree with the dissent of Dobbs--it was solely because of the makeup of the Court.
Yes, Casey’s silence on women’s autonomy was deliberate. Whether that was wise is debatable: it may have preserved Roe in the short term, but it also meant the Court effectively elevated its own institutional reputation above a full-throated defense of women’s constitutional rights. This tradeoff left the right more fragile in the long run.
I believe the dissent in this case made a strong argument when it pointed out that the majority's reasoning relied on the fact that the right to an abortion was not "deeply rooted in the nation's history," but neither were most of the other rights the majority claims it is not tampering with. I believe that this argument from the dissent significantly undermines the majority's reasoning by highlighting the selective nature of its historical perspective. Abortion was not widely accepted when the 14th Amendment was ratified, but neither was same-sex marriage, and as Justice Kavanaugh's concurrence highlights, this ruling should not affect the rights guaranteed in cases like Griswold, Eisenstadt, Loving, and Obergefell. Regardless of whether you believe Constitutional rights should evolve with society, there at least needs to be some level of consistency in the argument.
Here’s something to chew on: in Dobbs, the Court chose to frame the question very narrowly—was abortion itself historically accepted in 1868? That choice let the majority say no constitutional right exists. But it could have gone another way, asking instead whether broader principles of liberty and family autonomy were recognized, as the Court did in Meyer and Pierce. That difference in framing explains why abortion was struck down in Dobbs, while rights like same-sex marriage in Obergefell might continue to be upheld under a more general principle. The real fight isn’t just about history but about which lens the Court decides to use.
The more I read constitutional opinions the more I believe that legal analysis is oftentimes arbitrary in its execution. It seems like the Justices can twist their logic in any manner to extract their goals out of an issue. One of my favorite thinkers, Thomas Sowell, talked about this phenomenon in intellectual circles, where facts and logic give way to "peer consensus." I feel that one day Dobbs too will be overruled in a similar manner and cement the court as a political weapon of convoluted reasoning.
Here’s another way to look at it: what looks like “twisting” may also be the Court working through deep disagreements about first principles: what counts as liberty, what role history should play, how much power judges should have versus legislatures. That’s why two smart justices can read the same Constitution and come out worlds apart.
Maybe the real test isn’t whether the reasoning is perfectly “neutral” but whether the Court is being honest about the values driving it. Would that change how you see cases like Dobbs?
It's interesting to see how justices can interpret the same Constitution in such radically different ways - some of them viewing it as frozen in 1868 while others view it as a living document. So, does relying on a document written by a limited group, in this case majority white men, risk excluding todays broader understanding of rights?
That’s one of the big debates in constitutional law (between originalists and living constitutionalists). The Court often ends up in the middle, using historical grounding but also recognizing evolving concepts of liberty and equality, like in Brown or Obergefell. So, it’s less about one approach being right or wrong and more about how each handles the risk of either freezing progress or untethering the law from its democratic roots.