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James Staab – Justice Kagan is wrong: Conservative Supreme Court ‘originalism’ killed Roe v. Wade

13 Tuesday Jun 2023

Posted by Michael Bersin in Uncategorized

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abortion, Dobbs Decision, Dobbs vs. Jackson Women's Health Organization, James Staab, Originalism, Roe v Wade, U.S. Supreme Court

Also published in the Kansas City Star.

Justice Kagan is wrong: Conservative Supreme Court ‘originalism’ killed Roe v. Wade

James Staab

During her 2010 confirmation hearings, Supreme Court Justice Elena Kagan declared, “We are all originalists.” As much as I admire Justice Kagan, her statement is highly misleading and harmful to debates over constitutional interpretation.

Defenders of the concept of originalism claim that the provisions of the Constitution must be interpreted based upon their original meaning. While originalism is a minority perspective in the U.S., it now has a stronghold on the Supreme Court. Four of the current members of Chief Justice John Roberts’ court — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — describe themselves as originalists. Justice Samuel Alito, the author of last year’s Dobbs v. Jackson Women’s Health Organization decision, which overturned 1973’s Roe v. Wade, calls himself a “practical originalist.”

The reason I believe Kagan’s observation is harmful is because it gives legitimacy to originalism, which started out as a reactionary movement against Chief Justice Earl Warren’s court and represents a radical departure from the common law tradition in the United States.

Originalism did not exist until the 1970s — although I argue in a recent book that Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was the court’s first full-throated originalist. Robert Bork, now regarded as the godfather of originalism, was the first to advocate that constitutional interpretation must be based on the framers’ intent. Although originalists have shifted their focus to original meaning — the idea that constitutional provisions must be based on what the society that adopted them understood them to mean, not the subjective intentions of the framers — their backward interpretative approach has garnered considerable support in the legal community and on the Supreme Court itself.

Kagan’s statement is also misleading because the Supreme Court has always relied on other sources of law than text and history. In Fletcher v. Peck, an 1810 contracts clause case, Chief Justice John Marshall rested the court’s decision on both textualist and natural law grounds. His colleague, Justice William Johnson, did not believe the text supported the court’s decision, so he simply based his decision on natural law.

In a 1920 case, Justice Oliver Wendell Holmes described the Constitution as an organism that must be interpreted “in the light of our whole experience and not merely in that of what was said a hundred years ago.” He also wrote in the decision: “When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”

Then there’s the question of why we would want to go back in time to interpret the Constitution. Its framers did not require, nor intend, future generations to be governed by their own specific intentions or societal norms. Their use of broad language was both necessary and purposeful. “It is a constitution we are expounding,” Chief Justice Marshall wrote in 1819, one that “is intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

The dissenting justices in Dobbs, one of whom was Kagan, attempted to defend a woman’s right to obtain an abortion by noting that women were not treated as equals in 1868, when the 14th Amendment was adopted. Historically, there are other significant decisions that would have come out differently if the Supreme Court limited itself to an originalist approach: 1954’s Brown v. Board of Education striking down segregation in public schools, 1967’s Loving v. Virginia prohibiting bans on interracial marriages, and 2015’s Obergefell v. Hodges overturning bans on gay marriage.

It is also important to remember that originalism started out as a reactionary movement to counter the rulings of the Warren Court. In the early 1980s, Bork and Antonin Scalia were the faculty sponsors for the Federalist Society chapters at their respective law schools. What began as a small group of disaffected law students has turned out to be one of the most powerful legal organizations in the world. During the Trump administration, the Federalist Society served as a pipeline for federal court judgeships, and its behind-the-scenes network of attorneys has moved the Supreme Court’s jurisprudence substantially to the right in the areas of voting rights, gun rights, corporate speech, freedom of religion, church and state, administrative law and abortion.

After Bork’s death, then-Justice Scalia credited his good friend with being “the intellectual point-man for the movement to curb the pretensions of the Warren Court and return the meaning of the Constitution to what it said.” Justice Clarence Thomas, whom Scalia referred to as “a blood-thirsty originalist,” described his relationship with his senior colleague as “a band of brothers.” “Whether we win or lose,” Thomas remarked in a 2016 address honoring his late friend, “we are in this battle together.” Dobbs, the decision that overturned Roe v. Wade and deprived women of a fundamental right they’d had since 1973, is the culmination of the originalist project.

Unfortunately, it will not be the last consequential decision.

With permission of the author.

Dr. James Staab, Professor, American Politics and Law, received his B.A. from Roanoke College, his J.D. from the University of Richmond and his Ph. D. from the University of Virginia.

He has taught at the University of Central Missouri since August 1998. His primary area of specialization is public law, broadly defined, including American constitutional law, civil rights and liberties, judicial politics, criminal procedure, comparative constitutional law and jurisprudence.

He has authored or co-authored articles or book chapters on various Supreme Court justices, including Levi Woodbury, Benjamin Cardozo and Antonin Scalia. In 2006, he published a book on Justice Scalia titled The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (Lanham, MD: Rowman & Littlefield), which resulted in a visit to campus by Justice Scalia. In 2022, he published Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas (Lawrence, KS: University Press of Kansas), which represents a challenge to originalism as a theory of constitutional interpretation.

Dr. Staab received the Governor’s Award for Excellence in Education in 2012 and the Byler Award, UCM’s most distinguished faculty award, in 2014.

On the ballot: generations

06 Sunday Nov 2022

Posted by Michael Bersin in Uncategorized

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abortion, election, Kansas City, missouri, protest, Roe v Wade, signs

May 8, 2022 – abortion rights rally in Kansas City:

“He who hath not a uterus should shut the fucketh up”

Doing nothing now condemns women’s rights to privacy, bodily autonomy, and health care agency for the next fifty years.

Vote accordingly.

On the ballot: if they don’t get burned

06 Sunday Nov 2022

Posted by Michael Bersin in Uncategorized

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abortion, election, Kansas City, missouri, protest, Roe v Wade

May 8, 2022 – abortion rights rally in Kansas City:

“Never underestimate the power of a girl with a book”

The witch burners controlled everything.

Vote accordingly.

On the ballot: basic human rights

06 Sunday Nov 2022

Posted by Michael Bersin in Uncategorized

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abortion, election, Kansas City, missouri, protest, Roe v Wade, sign

May 8, 2022 – abortion rights rally in Kansas City:

“Keep your laws off my pussy/Keep your claws off my basic human rights”

Vote accordingly.

On the ballot: an act and its consequence

06 Sunday Nov 2022

Posted by Michael Bersin in Uncategorized

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abortion, Amy Coney Barrett, Brett Kavanaugh, election, Kansas City, missouri, Neil Gorsuch, protest, Roe v Wade, sign, Stare Decisis don't mean shit anymore, U.S. Supreme Court

May 4, 2022:

What to Know About the Leaked Supreme Court Abortion Draft Opinion, and What’s Next
[….]
Roughly half of the states will ban abortion almost immediately, and half the states will continue to allow abortion. But it’s important to understand that the long-term agenda of abortion opponents doesn’t end with overturning Roe. What they want is a nationwide ban on abortion. So if you’re in a state like New York or California, where you believe you will have access to abortion even if Roe is overturned, that is true in the short term. But the plan from abortion opponents is to continue to push for a nationwide ban, so that could change.
[….]

May 8, 2022 – abortion rights rally in Kansas City:

“They fucking lied…”

“…and I’m fucking pissed”

A half century of women’s right to privacy, bodily autonomy, and health care agency are gone.

Vote accordingly.

Schmitt the Birther

05 Saturday Nov 2022

Posted by penroseonpolitics in US Senate

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Tags

2022 Missouri Senate Race, Abortion ban, abortion restrictions, anti-choice laws, Eric Schmitt, Missouri Attorney General, Missouri Political Cartoons, reproductive freedom, reproductive rights, Republican War on Women, Roe v Wade, Roe Your Vote, women's reproductive health

On the ballot: already there

05 Saturday Nov 2022

Posted by Michael Bersin in Uncategorized

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Tags

abortion, election, Kansas City, missouri, protest, Roe v Wade, sign

July 9, 2022 – in Mill Creek Park in Kansas City:

“If I wanted politics in my pussy I would have fucked a senator”

Change it.

Vote accordingly.

On the ballot: bodily autonomy

05 Saturday Nov 2022

Posted by Michael Bersin in Uncategorized

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Tags

abortion, election, Kansas City, missouri, Roe v Wade, sign

July 9, 2022 – in Mill Creek Park in Kansas City:

“My uterus, my choice”

It’s been taken away from your mothers, sisters, and daughters. Get it back.

Vote accordingly.

On the ballot: Qui tacet consentire videtur, ubi loqui debuit ac potuit

04 Friday Nov 2022

Posted by Michael Bersin in Uncategorized

≈ 1 Comment

Tags

abortion, election, missouri, protest, Roe v Wade, sign

Your silence gives consent.

July 2, 2022 – on bodily autonomy, women’s health care, and abortion in Warrensburg, Missouri:

“You will never have the comfort of our silence”

A promise.

Vote accordingly.

On the ballot: The truth…and a promise

04 Friday Nov 2022

Posted by Michael Bersin in Uncategorized

≈ 1 Comment

Tags

abortion, election, missouri, protest, Roe v Wade, Warrensburg

July 2, 2022 – in Warrensburg, Missouri:

“It won’t end here”

It was never just about banning abortion. It’s about power and control.

Vote accordingly.

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