The Conservative Legal Movement at the Edge of Schism
James Wilson Institute Founder Hadley Arkes writes for Public Discourse about the future of the pro-life movement after Dobbs v. Jackson Women’s Health Organization.
Abortion
The Consummate Statecraft of Samuel Alito
I have to confess that when the news broke last night and I read that careful, exhaustive, impressive opinion from Justice Alito, my eye moved to those key points for which I was looking, and there I fell into a mild despair. For the Justice preserved, as one of the defining strands of his opinion, …
What the Hearings Missed
In the aftermath of Judge Jackson’s nomination to the Supreme Court, Hadley Arkes analyzes the Senate hearings. Despite some well-timed questions, Republicans ultimately missed their chance to put Judge Jackson on the record defending the right to kill unwanted children even after birth.
Once More Unto the Breach: Arkes v. Whelan on the Overruling of Roe
In a response to Ed Whelan’s critique of “On Overturning Roe,” Prof. Arkes insists that the moral argument against Roe is the only logical one for judges who believe in the deep wrong of abortion. The pro-life cause rests on objective moral truths, not on value judgments, and as a result does not require judges (as Whelan claims) “to read their own moral convictions into the Constitution.”
Podcast at First Things: Hadley Arkes and R. R. Reno discuss “On Overruling Roe”
Prof. Arkes discusses “On Overruling Roe” with First Things editor R.R. Reno.
Breaking the Sotomayor Mold
Kody Cooper argues that a new Supreme Court justice in the style of Sotomayor would fail to pass the “test of truth” when it comes to abortion, religious liberty, and takings. If the Senate Judiciary Committee cares about truth, it should therefore disavow the Sotomayor mold.
Justice Byron White and Abortion
Responding to Richard Doerflinger’s critique of “Waiting for Dobbs,” Prof. Arkes asserts that conservative justices could successfully outlaw most abortions by returning to Justice White’s standard: only abort to save the mother’s life. At the same time, however, White did the pro-life cause a lasting disservice by focusing not on the rights of unborn babies but on the abuse of “raw judicial power.”
Waiting for Dobbs
Hadley Arkes recalls that day, back in 1986, when Justice Byron White, one of the original dissenters in Roe v. Wade, startled Justice John Paul Stevens by suggesting that he too could accept Roe and a “right to abortion” in some form. Stevens seemed genuinely baffled. What White was offering was an understanding that would keep Roe v. Wade as a shell, while the substance was removed. Professor Arkes tries to reconstruct that argument here as an anticipation of what might happen if the Supreme Court seeks to take “the low door under the whole” in the Dobbs case—sustaining the law in Mississippi while affecting not to overrule Roe v. Wade.
‘Dobbs’ and the Conservative Legal Movement
If ‘Dobbs’ is decided following the ‘neutral principles’ of constitutional interpretation, it would not mean the end of abortion, according to Gerald Bradley, or even the beginning of the end of it. ‘Dobbs’ would instead be the start of a whole new phase of the political struggle over abortion. Yet the Constitution requires more.
Podcast: Profs. David Forte and Adam White on Fetal Heartbeat Bills
Profs. David Forte and Adam White analyze Fetal Heartbeat Bills, their history, and their efficacy.
