Rethinking the Liberal Giant Who Doomed Roe

Yet it was Ely who argued, in a 1973 essay that Alito would later cite in Dobbs, that Roe was not constitutional law at all and gave almost no sense of an obligation to try to be. While the first citation in Dobbs is to Roe itself, the second is to Ely. By the third paragraph of the opinion, Alito is relying almost entirely on Ely s contentions. Of the five factors the Dobbs court deploys in favor of overruling Roe before even getting to its arguments based on originalism at least four, and in particular the first two, rest primarily on Ely. Any assessment of Dobbs, and the increasingly conservative tilt of the court more generally, must therefore reckon with the legacy of Ely s critique of Roe, and the opportunities for American constitutionalism it helped foreclose.

Ely attained his stature largely because many understood his magnum opus, Democracy and Distrust, as solving a central problem in constitutional law in the late 1970s and early 80s: how to protect minority rights without engaging in judicial overreach. Democracy and Distrust is usually cited for its discussion of how judicial minimalism the idea that judges should only interpret the law, while legislatures should make it might be made compatible with the Constitution s use of broad, sometimes imprecise language to protect rights. The book is part of a canon of legal theory that prides itself on being content-neutral.

Less often discussed is an awkward fact: Democracy and Distrust assumes that Roe is the paradigmatic example of a case worth overturning. The essay Alito cites, Ely s 1973 The Wages of Crying Wolf, laid the foundations for his later book. And though Ely s theory is taught independently from his criticism of Roe, the two cannot be disentangled. To Ely, Roe served as a red line, marking what did and did not count as legitimate constitutional law. This opened the door to subsequent criticism of Roe. A now-famous passage in Dobbs quotes a series of liberal law professors criticizing Roesome have noted,, when Dobbs overturned Roe, institutional liberal responses were at first surprisingly muted; many arguments in defense of Roe depended on respect for precedent more than substantive reasoning. Ely s continuing influence is at least part of the answer as to why.

via www.msn.com