Several of the Supreme Court’s recent opinions have brought originalism under fire, but none more so than Dobbs v. Jackson Women’s Health Organization. Many now criticize the originalist framework as providing a cramped view of civil rights for groups that were marginalized at the Founding. Given the conclusion that “we’re all originalists now,” the dominance of originalism would thus seem to be cause for deep concern. But is originalism really to blame? Dobbs has been criticized by many originalists themselves, who decry the decision as rooted in non-originalist reasoning. So the question remains: is Dobbs v. Jackson Women’s Health Organization really originalist? Or is there something else underlying the conservative majority’s decision? This paper argues that Dobbs is not grounded in originalism, but rather in tradition-based substantive due process.

Continue reading Red Herring History: An Analysis of Why Dobbs is Not Originalism