Josh Blackman cites a conservative 3L as suggesting that if the Dobbs chance does not prevail roe deer, he or she may have to give up originality. I’ve heard feelings like these before and I have to say they baffle me. Why would anyone be shocked by Dobbs to conclude, “man, I’d better change what I think the Constitution says about recess appointments and the comparison clause”? What kind of views do you have on the Constitution if you go looking for new ones based on what some politician-approved bureaucrats in dressing gowns say?
Reaffirming roe deer it would be an extraordinary black spot for the conservative legal movement, which for decades had wanted it overturned. Ditto for the GOP administrations that campaigned for court appointments and asked pro-life to vote. But I don’t understand how it could be a black mark for originality, if only because a theory is more than the group of people who practice it: there is a big difference between originalism and “Originalism Inc.”
People can call themselves “originalists” and still be wrong about the original constitution, just as they can call themselves “historians” and still be wrong about history. The theory isn’t there to give us an easy twelve-step method of churning out the right answers. is there for explain what makes those answers the right ones. If you think originality requires overturning roe deer, and if it turns out that the court’s self-styled originalists still won’t, why conclude that originality is lousy, and not that the judges you are angry with are original lousy ones?
For comparison: if roe deer survives, it would be despite a Catholic majority of 6-3 in court. It would make sense for a Catholic to choose a new religion, just because of what some of the six Catholic judges do in Dobbs? It would seem really strange to me; so would be the collection of new opinions on the content of the law.