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In their most recent Slate column, legal analysts Dahlia Lithwick and Mark Joseph Stern celebrate a ruling by the Pennsylvania Supreme Court that explicitly rebukes the Dobbs decision. They point out that the PA ruling is also a broader indictment of the “originalism” philosophy, which by definition perpetuates historical injustices. The whole column is worth a read, but here’s an excerpt:

The Supreme Court’s eradication of the constitutional right to abortion in 2022’s Dobbs v. Jackson Women’s Health Organization had an immediate and devastating impact on gender equality in the United States. With a single ruling, five justices wiped out millions of women’s access to basic health care and handed control over their medical decisions to politicians and judges. It wasn’t just the court’s judgment, though, that relegated women to a lesser place in the constitutional order; it was also the court’s reasoning, which used the centuries-long oppression of women to justify an ongoing oppression of women by way of a deprivation of their rights. Justice Samuel Alito’s majority opinion rested largely on the views of dead white men who condoned the rape, beating, and murder of women to maintain female subjugation in every realm of life. And he dismissed his ruling’s ruinous impact on gender equality in a single conclusory paragraph asserting that abortion restrictions could not possibly discriminate against women…

The Pennsylvania Supreme Court’s decision thus spurned Dobbs in two ways. First, the majority held that laws regulating a woman’s body do discriminate on the basis of sex, a truth that has been widely understood by legal scholars for decades. And second, the majority explained that rooting women’s rights in the past is, itself, a form of sex discrimination, perpetuating misogynistic beliefs about gender inequality by judicial decree. As it was leaked and then published with almost no corrections to its myriad errors, Dobbs set off a firestorm of real-time criticism within the public, the legal academy, and the media, and that criticism is now finally returning to the courts—in the form of decisions that both defy and rebuke Dobbs’ chauvinistic logic.

Lithwick and Stern note that state supreme courts are more important than ever now that conservative activist Leonard Leo’s capture of the SCOTUS is complete. They also suggest that lower court pushback against the “originalist” framework might resonate outside the legal system as judges “are discovering and explaining to laymen the inherent injustice of so-called originalist outcomes as delineating the bounds of equality and dignity for all.” Their conclusion:

The lesson to be gleaned from the Pennsylvania Supreme Court’s rejection of both Dobbs’ cramped methodology and tragic result is not merely that state constitutions will be more essential than ever to protect against the misogynistic and revanchist efforts to restore women to subordinate and indeed powerless vessels. That we already knew. The lesson is also that the conservative project of gluing a misshapen cutout of the past onto a blank canvas of the present is itself an exercise in perpetuating inequality. This is as it was expressly designed to be. So long as judges are capable of independent thought, they will continue to call BS on the very notion that Dobbs-style originalism holds any real utility in ordering a complex, pluralistic, multiracial modern society. If constitutional values like equality are to endure, they will do so in spite of a structurally oppressive history, and not because of it.

I’m not a lawyer, but from the first time I heard of it decades ago, “originalism” seemed less a credible legal theory and more a self-serving conservative scam to me. Fallout from the Dobbs decision seems to be raising public awareness of SCOTUS corruption to that institution’s detriment. If it calls attention the FedSoc Six’s cockamamie theory of the case too, so much the better.

Open thread.

PA Calls BS on Dobbs DecisionPost + Comments (159)