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On Writing About Dobbs

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Josh points out that there hasn’t been much writing about Dobbs, and wonders why that is.  I thought I would offer some thoughts on that.

In my view, the main reason not to write about Dobbs is that the legal issues are overdetermined—and therefore not very interesting.  Everyone knows the basic choices and their consequences.  Every lawyer under the age of 75 has known them since law school.  It’s not clear that there’s anything new to say.

Josh does raise something new in his posts, namely an implied threat of sorts. If the Court doesn’t deliver, his correspondents suggest, they might end their long relationship with originalism and start dating other legal theories.  Like Stephen, I’m not totally sure what to make of the threat.  It may partly reflect the assumption explained in Josh’s post that some Justices may be influenced by public opinion.  If the Justices are swayed by public opinion, the thinking may run, we need to make really clear in a public forum (especially in case any law clerks, or even Justices, might be reading) how one crowd will react if they vote different ways.

A lot of commentary about pending cases has that kind of flavor, of course.  If the Justices want to feel welcome at [our law school]/[the Federalist Society] ever again—pick whichever is applicable—they had better rule this way or that.  But beyond that kind of possible goal, at least, it’s not obvious to me that there is much new to say.



Source: https://reason.com/volokh/2021/11/15/on-writing-about-dobbs/


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