Judicial Jujitsu in the New Originalism

Abstract

The Supreme Court’s adoption of the “history and tradition” test has prompted a substantial body of critique. Most of that critique has focused on problems connected with historical analysis, but additional aspects of the test’s application warrant scrutiny. This essay focuses on one of those: how the Supreme Court redefined what counts as evidence of a right in Dobbs v. Jackson Women’s Health Organization. The Court applied the same test in Dobbs that it had in New York State Rifle and Pistol Ass’n v. Bruen in an opposite manner to reach the opposite result. In Bruen, the Court found rights in the absence of state regulation, while in Dobbs, the Court refused to find rights without evidence of positive limitations on state regulation. This sleight-of-hand application was just one of several at the Court’s disposal. By identifying the ways the doctrine can be manipulated, this essay seeks to reveal opportunities to resist efforts to roll back additional rights