New Textualism in Constitutional Interpretation

Dobbs v. Jackson (2022) and Its Creation of a New Rule of Law

Abstract

On June 24, 2022, the U.S. Supreme Court decided Dobbs v. Jackson (2022). Dobbs overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), precedents legalizing the constitutional right to an abortion. Its overturning of these precedents marks a seismic shift in the U.S. Supreme Court’s abortion jurisprudence from a pro-precedent stare decisis doctrine to a precedent-skeptical new textualist doctrine. By undercutting the stare decisis principle that past abortion cases had used to fulfill the rule-of-law criteria of legal rule stability, predictable rule application, and neutral and objective adjudication, Dobbs subverts precedent notions of the rule of law but does not dismantle the principle. Instead, it creates a new rule of law that meets its constitutive criteria by de-emphasizing stare decisis and placing greater emphasis on historical stability, adherence to the constitutional text, and consideration of the context surrounding constitutional drafting. Dobbs underscores that a new rule of law seeks to turn back in time by achieving the rule of law’s constitutive criteria in a manner that revises the past. It premises future abortion jurisprudence on a 248-year-old text written at a time when the law failed to recognize the rights of all people. In doing so, Dobbs puts the rights of women and marginalized communities at stake, illuminating the need for lawyers, judges, and advocates to uphold a rule of law that looks to the present and lives up to the ideals of equality and justice for all.