Denouncing Dobbs and Opposing Judicial Review

Abstract

Is there a consistent basis on which an opponent of strong judicial review can criticize the Supreme Court decision (so far just leaked) in Dobbs v. Jackson Women's Health? This paper argues that there is. Criticizing strong judicial review doesn't mean rejecting the category of unconstitutionality. Now that the Supreme Court is proving itself an unreliable guardian of certain rights, the category of unconstitutionality has to become a topic for ordinary politics. And people--officials and citizens-- have to be willing to act on their own determinations of constitutionality and unconstitutionality without waiting for the guidance of a court.

Keywords: Abortion, constitution, disobedience, Dworkin, neutral principles, politics, rights, strong judicial review, Supreme Court, unconstitutionality