Opinion by Caitlin B. Tully, Slate, 6/25/23
A year after Dobbs v. Jackson Women’s Health, the Supreme Court decision that overturned Roe v. Wade, most commentary has painted it as the product of conservative excess. As the dissent and others have noted, the court’s reliance on originalism is arbitrary. The decision takes no notice of how abortion rights affect women’s liberties and equality. The breakdown of church-state separation that the decision represents is staggering, as is its undoing of any plausible division between politics and law. And Justice Alito’s use of history, which leads him to rely on pre-Enlightenment accounts of women’s worth, is blinkered at best.
Reading Dobbs in this way is appealing because it identifies a clear intellectual target and points to a straightforward political strategy, pitting liberal constitutionalism against conservative constitutionalism. But this simple interpretation misses the heart of the matter: The primary intellectual source of Alito’s opinion is not originalism but the legal scholar John Hart Ely, a self-professed liberal who taught at Yale, Stanford, and Miami, and who was one of the most cited constitutional law professors of the 20th century. Unlike Alito, Ely self-identified as neither a hardcore textualist nor an originalist. Upon his death, a glittering roster of mostly liberal legal elites—his colleagues—eulogized him as one of the rare figures who had transformed their legal imagination.
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 Roe; these quotations are in some respects selective or misleading, but they are not merely window dressing. As some 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.
One might, of course, ask why we should take legal reasoning—let alone its intellectual roots—seriously at all right now, given that the court appears to be comfortable reaching whatever conclusion it wants whenever it wants. But this court is not interested in the outcomes of single cases alone. The conservative majority has greater ambitions: to impose its conception of the Constitution as the only legitimate framework within which to interpret the law. This matters even if one thinks litigation at the Supreme Court is, for the foreseeable future, a lost cause. Constitutional arguments matter not just inside but also outside courts. As the general rise of conservative constitutional ideology has demonstrated, they also matter in the long run as well as the short term. Aiming beyond even the vast powers of his immediate jurisdiction, Alito wants Americans who have different views than his own to think that they have no hope of marshaling the Constitution to their cause. And at this moment, little liberal constitutional theory stands in his way.
None of this was preordained. Roe is frequently discussed in light of the culture wars of the 1980s and ’90s. With these debates in recent memory, it is easy to cast Roe itself as controversial from the start: a flawed case with a troubled legacy. But this mistakes political agitation for unreliable legal footing. At the time it came out, Roe was understood by many—including the predominantly conservative Burger court, which decided Roe 7–2—as a predictable extension of legitimate and deep-rooted visions of constitutional law. For almost a decade after, Roe appeared to be on a trajectory similar to that of Brown v. Board. The decision was debated, but also soundly defended by eminent legal scholars. It seemed on track to become part of the corpus of constitutional thought: a case that lawyers had to reason within, not merely one tolerated as precedent. By the 1990s, however, it had become a sign of intellectual seriousness inside liberal legal circles to say that Roe was a bad case. Ruth Bader Ginsburg famously criticized the reasoning in Roe in a lecture she gave shortly before her own nomination to the court.
The question, in other words—and this is not just for those concerned with abortion rights, but for anyone concerned with both the court’s sudden swerve toward overturning precedent and the future of constitutional law in general—is not, as Alito and many others have tried to make it out to be, how anyone could miss what a terrible case Roe is. Rather, it is how and why so many legal scholars have taken Ely’s arguments so seriously for so long.
Ely raised a litany of objections to Roe. But fundamentally his argument boiled down to three claims, each of which would, in time, find its way into Dobbs. These formulations, which he first articulated in his 1973 essay and subsequently developed in his 1980 book, may seem abstract, even esoteric—the sort of argument that cannot be parsed without elite legal education. But they are, in fact, relatively straightforward.
First, and most famously, Ely argued that Roe was “substantive due process.” To Ely, this meant that, by definition, Roe’s right to abortion was fictitious—there was no grounding for it in the Constitution.
Ely’s critique relied on the idea that when courts use the 14th Amendment’s due process clause to enforce certain constitutional rights, they are confusing substantive and procedural rights. Substantive rights are conventionally understood as the rights one has in civil, political, and private life—rights to or against things—while procedural rights are about what one is entitled to during legal proceedings. The First and Second amendments are usually understood as substantive rights, for example, while the right to a jury trial is procedural. Roe, like several other cases, relies in part on the “liberty” protected by the due process clause—a procedural clause—while abortion rights, like many rights found in the Bill of Rights, are usually understood as substantive rights. As a result, Roe’s reasoning has often been labeled as substantive due process: It combines both substantive and procedural clauses of the Constitution. In itself, this is hardly a fatal critique: Legal scholars are not in the habit of criticizing the right to travel across state lines, which relies on a similar construction. Ely, however, argued that substantive due process was a tell, that courts are substituting their own values for rights. In other words, courts are inventing rights wholesale and, as a result, usurping the role of the legislature.
Second, Ely objected to the fact that in Roe, the Burger court drew together several provisions of the Constitution. Strikingly, his logic elided the fact that this was not unusual at the time, nor have other decisions that relied on the same doctrinal approach been singled out like Roe. Because the Bill of Rights is understood to have applied only against the federal government when it was drafted, any case protecting rights based on the first nine amendments must invoke the 14th Amendment if these rights are to apply against state legislatures (a process known as incorporation). For this reason, courts routinely combine the 14th Amendment’s due process clause and substantive rights based on single provisions in the Bill of Rights (for instance: gun rights or speech rights). Ely did not actively contest such cases, while, in sharp contrast, he objected vociferously to the use of the 14th Amendment in Roe.
What made Roe different was its reliance on Griswold v. Connecticut, which had famously found a right to privacy, which included the right not to become pregnant, among the First, Third, Fourth, and Fifth Amendments, as well as being further supported by the Ninth. Specifically, Griswold protected the availability of birth control to married couples, which was extended to unmarried couples a few years later, in Eisenstadt v. Baird. While Roe did not perform an extensive textual analysis of these provisions, by drawing directly on Griswold and other decisions with similar reasoning for its ruling, it effectively relied on this “inter-provision” reasoning by reference. This reasoning dovetailed with Roe’s use of the 14th Amendment—what Ely criticized as substantive due process—because Roe applied to the states, not the federal government. (It was state laws regulating abortion that were at issue.)
In other words, while Ely tolerated rights based on single provisions of the Bill of Rights in combination with the 14th Amendment, he disavowed Roe’s reliance on multiple provisions as creating fictitious fundamental rights. Alito’s reasoning in Dobbs follows suit: He concedes the possibility of a “privacy” right but countenances it only so long as it is attached to either the First or Fourth Amendment. He states, as though in shock, that Roe found abortion rights “to spring from no fewer than five different constitutional provisions.” One might take the fact that Roe relied on multiple constitutional provisions as proof of its overdetermination. But instead, Alito and Ely hold out the presence of inter-provision interpretation as evidence of intellectual weakness.
Third, Ely’s dismissal of Roe depends on his contention that abortion rights are not “political process” rights. Having made the idea that substantive due process was illegitimate a linchpin of his work, Ely argued that the only way to “save” cases that could be designated as such—including a swath of Warren court jurisprudence he was attached to—was to reinterpret them as about political process instead. In what would become his signal contribution to legal theory, Ely argued that courts could articulate these unnamed fundamental process rights so long as they aided minorities that—and here he borrowed from a 1938 opinion by Justice Stone—could be termed “discrete and insular.” With this distinction, Ely was able to recategorize as legitimate a host of civil rights cases that might otherwise be termed “substantive due process”: They fell within his newly constructed “safe harbor.”
Yet this safe harbor did not extend to women. In Ely’s view, because women have the right to vote, because they are numerically not a minority, and because, unlike in cases of segregation, men and women cohabitate, women did not fall within his rubric of people whose political power is compromised. Dobbs takes a leaf from Ely’s book in this respect: Alito uses women’s right to vote as evidence that the absence of abortion rights would place no unjustifiable burden on women as a political class. Ely avoided the question of gender relations, including their economic and power dynamics. He could thus deny that abortion access could be salient to the political process for women. At the same time, his logic affirmed political rights for fetuses, which he argued were discrete and insular minorities. Ely’s analysis therefore pointed in the direction of granting fetuses political personhood, as Dobbs would later gesture toward as well.
Why did Ely seem so intent on negating the right to abortion? Ely claimed that his work was dictated by the demands of legal theory. In fact, he contended, his willingness to criticize Roe was actually evidence of his intellectual integrity, not cause for question. He regularly stated that, in theory at least, he supported abortion rights, if legislatures wanted to provide them. Yet, clearly, he was also motivated by ambition: In the legal academy of the 1970s, to argue against the grain on what seemed, at least for the time, a settled issue allowed him to position himself as willing to face hard truths for the sake of legal rigor. The moral complexity of abortion and the relative marginality of women in the legal academy helped to ensure that he risked little reputational damage in doing so. While many of his colleagues thought he was wrong on the law, they debated him in the spirit of amicable collegiality.
None of this, however, explains how Ely’s ideas came to determine the scope of constitutional law. Ely’s—and Alito’s—views were hardly destined for dominance. By 1973, when Roe was decided, courts had spent the previous 30-plus years articulating constructions of the Constitution that demanded more robust individual rights. These ranged from new criminal procedure requirements and the suspension of the death penalty to First Amendment, equal protection, contraceptive, and voting rights. Notably, this also included the articulation of a constitutional right to privacy. This sea change is often attributed to the Warren court’s tenure, which began in 1953 and ended in 1969. But it had deeper roots: Among other things, the early 20th century legal giants Oliver Wendell Holmes, Louis Brandeis, and Hugo Black all argued repeatedly that robust individual rights held against state as well as federal power are integral to both the structure and continued existence of constitutional law.
This expansion of rights prompted criticisms—parts of which Ely later marshaled in his arguments against Roe. Some of these criticisms were in good faith; others, less so. What united those that rose to prominence—something a young Ely no doubt observed—was how they anchored their authority in the aspiration to neutrality. In 1954, in Brown v. Board, the court had invalidated legislation in order to demand that states desegregate. While supportive of Brown, the legal scholar Alexander Bickel warned—via what he famously termed “the countermajoritarian difficulty”—that courts should be especially careful when invalidating legislation, lest legislatures flout their rulings and show courts to be powerless. Because we take legislation as representative of the will of the majority, courts are required to show legislation a degree of deference. They must justify themselves when they invalidate law in the name of constitutional rights. Ely would later claim that he was solving the countermajoritarian difficulty in Democracy and Distrust, by providing a nonpolitical way to decide which rights deserved “fundamental” protections sufficient to override legislation in this way.
The leading constitutional law professor Herbert Wechsler, meanwhile, insisted that Brown—and thus court-ordered desegregation—was illegitimate because it violated the First Amendment’s free-association clause. What courts needed to do instead, Wechsler famously claimed, was to deploy “neutral principles” of interpretation. Ely’s “political process rights” would similarly be informed by the search for “content-neutral” legal reasoning.
Yet by the early 1970s, criticism of the new jurisprudence had failed to gain serious traction—not only with respect to racial equality, but also when it came to privacy rights. Leading up to Roe, the famous textualist Justice Hugo Black critiqued the justification for privacy rights used in Griswold. Lodging 1 of 2 dissents in that case, Black essentially argued that, because the word privacy is not in the Constitution, judges could not infer its existence as a right. But Black died in 1971, and his dissent in Griswold remained marginal. It did not stand in the way of the court’s decision two years later in Roe. (In any case, it’s worth noting that Black’s underlying logic in his Griswold dissent is not in line with Dobbs. Black was a textualist but also a fierce advocate of individual rights. And though conservatives today frequently try to claim him as their own, Black dissented in Griswold at least in part to avoid resurrecting “ordered liberty,” the doctrinal test that the Dobbs court relies on.) Wechsler’s “neutrality critique” of desegregation, in the meantime, had been put to rest by Charles Black’s 1971 foreword about Brown in the Harvard Law Review, which pointed out that legal fiction—that separate could ever mean “equal”—could not trump legal reality.
In the end, it was none other than Robert Bork, the conservative legal scholar who would go on to be rejected, famously, as a candidate for the Supreme Court, who laid the groundwork for Ely’s early writing on Roe. Bork had also taken note of Wechsler’s work: His 1971 article “Neutral Principles and Some First Amendment Problems,” written in a fit of animus against what he saw as the excesses of sexual liberation, repurposed Black’s textualism and rehabilitated Wechsler’s neutrality. Fatefully, he used both as a weapon against privacy and substantive due process instead of desegregation.
Bork condemned Griswold—Roe’s precursor—as the height of judicial overreach, crafting two important arguments that Ely would later reproduce. First, Bork argued that if one allows for Griswold, one has to allow for Lochner v. New York, the universally maligned 1905 case that struck down maximum-hours protections for low-wage bakers. Lochner was a substantive due process case. It was based on what the court called “the right to contract,” and the Lochner court contended that this right existed in the 14th Amendment. Because neither the words “right to contract” nor “privacy” are in the Constitution, and because Griswold was superficially similar to Lochner, inasmuch as both relied on the 14th Amendment, Bork argued that Lochner was analogous to Griswold. Both, he argued, simply invented rights.
Second, Bork drove a wedge between “substantive due process” and “equal protection” cases. A significant number of the new cases, including many that functionally furthered desegregation, had been decided on bases other than the equal protection clause alone. Several used inter-provision reasoning similar to that in Griswold—for instance, by combining the due process and equal protection clauses. Still others understood the scope of the equal protection clause and the First Amendment to include voting rights and privacy rights, respectively. Bork denigrated virtually all of these cases as substantive due process. Meanwhile, he conceded that formal desegregation based on the equal protection clause—Brown, in effect, if not its reasoning—was legitimate. In doing so, he offered liberals a concession they had already won. Prefiguring both Ely and Alito, Bork used substantive due process as a label for doctrine that required both inter-provision interpretation and the 14th Amendment (what Griswold and most privacy cases draw on). Bork thus managed to conflate complexity (more steps) with weakness (“not constitutional law”). Not coincidentally, the argument managed to draw a dividing line between race and gender, and sidelined class too.
Bork’s formulations would prove invaluable to Ely, a 35-year-old Yale Law School professor and Bork’s junior colleague: more likely than not, they are what allowed him to draft his essay “The Wages of Crying Wolf” almost immediately after Roe came out. Swapping Roe for Griswold, Ely relied on the linkages Bork drew between Lochner, substantive due process, and privacy for the core of his criticism. Further, Ely’s idea of political process rights—though still in its infancy in this essay—mirrored the structure of Bork’s equal protection exception. This allowed Ely to argue he wasn’t against newly recognized rights; he was simply rigorously testing their basis.
Ely’s essay was more eye-catching than Bork’s, partly because his liberal bona fides (which he made it a point to announce) made it counterintuitive. Coming at a time when criticism of Roe hardly seemed likely to make any direct impact, “The Wages of Crying Wolf” owed much of its salience to its author’s willingness to buck liberal celebrations of Roe.
The legal reasoning in the essay, however, is cavalier, and its style is distinctive. Ely’s opening gambit asserts that, rather than law, Roe creates “values—or whatever.” Ely expressly and repeatedly analogizes sodomy (which remained illegal) to abortion. A key passage compares prohibitions against both sodomy and abortion as “cramp[ing] the life style” of the “homosexual” and the “mother” alike. On what would become his signature contribution to the field of legal theory—the revival of Stone’s concept of the “discrete and insular minority”—he writes: “I’m not sure I’d know a discrete and insular minority if I saw one, but confronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.” In such passages, it is hard to tell what Ely takes less seriously—the people affected by the laws he is discussing (in this case, women) or the demands of legal analysis. His cadence might best be described as that of a law professor attempting to imitate J.D. Salinger. Substituting condescension for argument, Ely’s essay reads like a stunt, not a serious undertaking.
This stylistic approach garnered Ely attention, even fans. But serious logical flaws hobbled the essay’s appeal. From the outset, Ely’s equation of Roe and Lochner was far less stable than he made it appear. Because Roe relied on Griswold’s inter-provision interpretation, and Lochner was based only on the 14th Amendment, Roe was not clearly analogous to Lochner. The problems with the analogy were evident from the lengths Ely went to to elide them. Soon after his essay was published, Ely began to use Lochnerize (to impose made-up substantive due process law) as a verb. Just as Bork had done with Griswold, Ely’s attempt to equate Roe with Lochner was an effort to make Roe unacceptable by association. As a rhetorical gesture, this worked: We use Lochnerize today to refer to making up things in the law.
Regarding the legal matter, Ely was far less successful—at first. His peers pointed out problems with Ely’s arguments for the remainder of the decade. First, it was possible to persuasively defend Roe’s logic, as Laurence Tribe did in the Harvard Law Review foreword in 1973. Second, as Stanford Law professor Thomas Grey noted a few years later, the distinction between “substance” and “process” that critics of substantive due process depend on breaks down on close inspection. Finally, as Grey also pointed out, it’s not even clear that the reason Lochner was a bad case was because it was substantive due process. Lochner’s misuse of the word liberty, in other words, is more like Citizens United’s contortions around the term person than it is like Roe. Throughout the 1970s, these and other weaknesses meant Ely’s essay was mostly refuted or ignored. (In recent years, scholars including Reva Siegel, Pamela Karlan, and Samuel Moyn have called renewed attention to flaws in Ely’s thinking.)
Had Ely not reformulated his essay more than half a decade later, it might have ended there. In 1980, however, Ely tempered his language and refined his argument. Democracy and Distrust is dedicated to the much-lauded liberal Chief Justice Earl Warren. No longer framed as a critique of Roe, Ely presented his arguments as the solution to Bickel’s countermajoritarian difficulty, the problem of how judges should decide cases that pit the constitutional rights of individuals against presumptively majoritarian legislation. Further, Ely argued that he had squared the circle between textualists’ desire for clear constitutional rights (largely a conservative demand) and the way that broad, textually enshrined constitutional provisions, such as the Ninth Amendment, supported (mostly liberal) demands for interpretation. Still leveraging his liberal credentials to frame his legal analysis, this time Ely positioned himself not as an entertainingly provocative young scholar but as the reasonable defender of progressive rights, reliable precisely because he put principle over party. In part because it was framed as such, Ely’s work became a liberal lodestar. Not coincidentally, the way in which the legal academy interpreted Roe shifted as well.
The important thing to realize about Roe is that, as a legal matter, none of the problems frequently posited—its moral difficulties, countermajoritarianism, the contention that it is like Lochner—are impossible to solve. Even the oft-cited difficulties around the viability test—the dividing line between a woman’s right and a state’s interest that marks when prohibiting abortion becomes constitutional—usually boil down to a repackaged argument that privacy rights don’t exist. Such complaints suggest that Roe doesn’t have a constitutional theory. But Roe did have a positive theory. It built on Griswold and a host of other cases. In doing so, Roe protected the indivisible connection between privacy and women’s liberty. Further, most of these decisions were engaged in a similar endeavor: explicating how rights relate to one another, and why the structure of constitutional law requires some unenumerated rights in order to function. Roe’s underlying commitment to inter-provision interpretation, moreover, protected and built on a framework that justified more than just reproductive rights. It also undergirded cases with far-reaching redistributive implications, in particular those in which the court invalidated state laws for effectively discriminating on the basis of wealth.
By the 1980s, however, the Reagan Justice Department was ascendant, and the intellectual tide was turning against such interpretations. In the face of political headwinds, Ely offered liberals an argument with which they could theoretically safeguard at least part of the case law they were attached to—primarily racial equal protection rights and some election law—without being accused of being “unreasonable” or “activist.” Essentially, his bargain was this: Keep a limited set of precedents in a safe harbor called “discrete and insular political process rights,” but, by dispensing with Roe, give up the fundamental logic that had actually animated many of those rights in the first instance. Because Ely offered a general framework for constitutional law—one that appeared to “save” cases liberals were attached to while also “demonstrating” that he took seriously the concerns of conservative legal theorists—his work became an essential part of the architecture of liberal constitutional thought.
Why didn’t more legal scholars insist on revealing these problems with Ely, or on advancing the interpretive possibilities Roe presented? Prefiguring challenges we face today, center-to-left legal opinion fragmented. Leading lights of the critical legal studies movement, like Duncan Kennedy, doubled down on the point critics of Roe were making. Starting from what “conservative critics of the Warren Court have taught us,” Kennedy “rejected the attempt to distinguish” Lochner and Roe. In doing so, Kennedy played into the hands of conservatives.
Many feminist legal scholars defended Roe, but others argued that women’s rights were better bolstered through logic that excluded it. Some, like Catharine MacKinnon, viewed privacy as neo-coverture: a patriarchal space that only reinstated gender inequality. Others thought equal protection doctrine seemed the more pragmatic (if limited) route to gains in women’s rights. Still others hoped that equal protection litigation could deliver bold and lasting change.
Mainstream liberals, meanwhile, were by and large happy to let abortion rights become a “women’s question” rather than a central issue in constitutional interpretation. In a Harvard lecture in 1980, for example, the liberal lion and 2nd Circuit Judge James Skelly Wright defended both racial equality and economic rights under what he called a “creative implementation of the equal protection clause.” Yet while Wright respected “core privacy rights” as precedent, he advised against pursuing any grounds other than equal protection for constitutional rights going forward. To do otherwise, he said, recalling Ely almost verbatim, would risk “judges imposing their own views on the citizenry on the pretext of enforcing the Bill of Rights or the Fourteenth Amendment.”
By the mid-1980s, adopting the language of “neutrality” had come to mean abandoning Roe. The ascendancy of Ely’s argument reached its dénouement in the early 1990s. Even Ruth Bader Ginsburg, who by no means wished for Roe to be overturned, found the opinion too broad, and criticized the fact that it was based on privacy rather than on equal protection grounds. During her nomination to the court, Ginsburg’s friends had to call to the White House to explain that she was most certainly not an opponent of the decision. In the eyes of supporters of women’s equality and abortion rights, her nomination signaled progress. But it also masked how thin—even self-defeating—the fundamental logic of liberal jurisprudence had become. At the same time as she was confirmed to the court, Ginsburg’s adherence to the idea that Roe was a bad case was also arguably a prerequisite of being taken seriously inside the academy—certainly in the legal academy in which Ginsburg had been educated.
The problem with relying on equal protection, as Ginsburg proposed, is that at the time Roe was decided, doing so would have undercut the case. Despite subsequent advances in equal protection doctrine, the protection it afforded women remains far less than that available as a “fundamental” right—the right to privacy. Meanwhile, relying on equal protection, or hoping for the eventual promotion of women’s equal protection rights’ to “fundamental” status via the passage of the Equal Rights Amendment or an equivalent doctrinal change, undercut liberals’ ability to defend Roe. It would require political conditions decades in the future to make Dobbs possible. But by this point, the interpretive die had already been cast. Although the 1992 decision Planned Parenthood v. Casey offered a measured reaffirmation of Roe, its logic was primarily anchored in Roe’s status as precedent. Not even Casey’s restatement of Roe could undo the harm Ely had done to its legitimacy.
Citing the moral complexity of abortion rights, some would rather avoid the matter—never mind that someone else will interpret the law instead. Many others have called for a political—not interpretive—response to the end of Roe, since they see constitutional interpretation as the same thing as federal courts, and those, for obvious reasons, as a dead end. Such an approach focuses on state law, Congress, and executive action. To some extent, this has borne fruit. Without a response rooted in constitutional interpretation, however, Alito’s opinion, and others like it, will ultimately reign supreme. The past year has shown how new restrictions on abortion severely affect the lives of countless Americans; but beyond this, Dobbs also has implications for a much broader swath of law.
If there is a future for constitutional law that exists outside what this court has constructed, it cannot exist in half measures. The constitutional proceduralism of the 1980s has left liberals and progressives with little constitutional capacity to defend Americans’ rights. It has also meant that, as Democrats head into the 2024 election season, they have not agreed on a constitutional—rather than moral—argument for why abortion and related rights are more than merely majoritarian preferences. Liberals will need to build a coherent set of constitutional arguments with which to combat the jurisprudence set forth by this court. Doing so, however, will require them to break with the paradigm that Ely created.
Following Ely, through a combination of political expediency, professional opportunity, and personal prejudice, the legal academy abandoned Roe. If liberals want to build a constitutional politics that gets around Dobbs, and indeed, one capable of saving existing constitutional rights, they will have to abandon Ely instead.