Critical moment for Roe and the legitimacy of the Supreme Court

A ruling in the case debated Wednesday, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, regarding a Mississippi law that proh...


A ruling in the case debated Wednesday, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, regarding a Mississippi law that prohibits most abortions after 15 weeks of pregnancy, is not expected until the end of June.

Professor Fallon said it was difficult to think of a proper comparison with a decision overturning Roe.

“I’m not sure there is a good historical analogy with Dobbs and the concerns about the legitimacy of the Supreme Court he inspired,” Prof. Fallon said. “But if there is, it should involve an issue that was both politically and morally divisive and involved very high stakes.”

A possible comparison, he said, would be to Dred Scott vs. Sandford, presenting the question of whether Congress had the power, under the Constitution, to prohibit slavery in the Territories. The underlying dispute in this case ultimately led to civil war.

Professor Murray said that neither the famous Dred Scott decision, with a majority opinion written by Chief Justice Roger B. Taney, nor the decisions canceling President Franklin D. Roosevelt’s New Deal agendas were entirely appropriate. .

“This moment feels really different to me than Taney’s court, really different from the New Deal court, really different from Warren and Brown’s court,” she said. “At those times, I felt like the tribunal was acting for itself and not in the service of some other project in which it was just a ship or a pawn.”

Professor Garnett said the court should act for itself in the Mississippi case – setting aside Roe.

“When the tribunal squarely respects the Constitution and stays in its role, despite the possibility of negative publicity, as it did in Brown v. Board of Education, its legitimacy is enhanced,” she said. “A negative reaction does not mean that the court did something illegitimate. It can mean the opposite.

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Newsrust - US Top News: Critical moment for Roe and the legitimacy of the Supreme Court
Critical moment for Roe and the legitimacy of the Supreme Court
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