The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
abstract. In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—history that ties Dobbs’s history-and-tradition method to the defense of segregation.
Dobbs interpreted the Constitution’s liberty guarantee by counting state laws criminalizing abortion at the time of the Fourteenth Amendment’s ratification. In so doing, Dobbs was employing modes of reasoning that were popularized by those who opposed Brown. They defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868—the majority of which were states of the former Confederacy that were resisting Reconstruction. Brown repudiated this backward-facing method of interpreting the Amendment and called upon the nation to change its practices to conform to its constitutional ideals. In so doing, Brown recognized that application of the Constitution’s guarantees evolves in history—the approach in the Court’s substantive due process cases that Dobbs repudiated when it counted states that criminalized abortion in 1868 to justify reversing Roe.
This Essay traces the rise and spread of an interpretive method—counting state laws in 1868—that finds the Constitution’s meaning fixed in the deep past, tied to the expectations, intentions, and practices of the Constitution’s ratifiers. It shows how this method—and forms of originalism and traditionalism that limit the Fourteenth Amendment’s meaning to its ratifiers’ expectations, intentions, and practices—arose in opposition to methods of interpreting the Amendment that recognize that application of its guarantees evolves in history. These debates spread from conflict over segregation to substantive due process cases including Roe, Bowers, Casey, Glucksberg, Lawrence, and Obergefell, and they continue today, often as arguments about the “levels of generality” at which judges should interpret the Constitution’s requirements. In tracing the argument that state laws in 1868 are proxies for the expectations and intent of the Fourteenth Amendment’s ratifiers, this Essay shows how early forms of originalism and Dobbs’s history-and-tradition method emerged out of resistance to Brown and backlash to decisions of the Warren and Burger Courts. This history connects interpretive debates of the 1950s, the 1980s, and the 1990s to controversies about interpretive method that arise in the present day—as Americans argue about Dobbs’s legitimacy and ask how, if at all, Dobbs should guide federal and state courts in interpreting liberty and equality guarantees.
Examining interpretive methods in the political conflicts in which they grew helps us think critically about the justifications Dobbs offered for its method of interpreting the Fourteenth Amendment. Dobbs argued that its use of state-counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee provided an impersonal standard that prevented interpreters from reasoning from their values and so protected democracy in the states. The history this Essay examines refutes each of these claims, demonstrating how Dobbs’s method conceals dynamic forms of interpretation and enforces disempowering forms of democracy.
Counting states that segregated education (or banned abortion) in 1868 was not a neutral measure of the Constitution’s meaning, but instead perpetuated political inequalities of the past into the future. The democracy Dobbs supported was a thin majoritarianism, democracy without rights to protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi illustrate how the liberty and democracy Dobbs protects entrench political inequalities of 1868. Examining justifications for interpretive methods in political context makes vivid how in debates over abortion and gay rights, as in the debate over segregation, a backward-looking standard that appeared to fix the Constitution’s meaning in the past in fact vindicated the interpreters’ values and functioned as a veiled form of conservative living constitutionalism.
This Essay refutes the claim that Dobbs is like Brown on terms that contribute to contemporary debates in constitutional law and theory. Critically examining claims on the constitutional memory of Brown is a practice of fidelity to Brown as we commemorate its seventieth anniversary.
In Dobbs v. Jackson Women’s Health Organization,1 the Supreme Court plays memory games,2 employing stories about the past to legitimate its decision overturning a half-century of women’s rights. To justify reversing Roe v. Wade,3 Dobbs declared Roe, like “[t]he infamous decision in Plessy v. Ferguson,” “‘egregiously wrong’ on the day it was decided,”4 and argued that Roe lacked grounding in the nation’s history and traditions of banning abortion.5 The Roberts Court was asserting that in overturning Roe, it was acting as the Warren Court had in overturning Plessy—that Dobbs was like Brown v. Board of Education.6 Justice Alito evoked this comparison multiple times,7 suggesting that his opinion in Dobbs liberated the nation from pernicious judicial lawmaking and restored democratic values that had been abrogated by activist judges in the past.8
Constitutional memory has a politics.9 Dobbs determined that the liberty Roe protected was not part of the nation’s history and traditions by counting the number of states that criminalized abortion at the time of the Fourteenth Amendment’s ratification.10 In so doing, as this Essay shows, Dobbs employed a method of interpreting the Fourteenth Amendment that Plessy’s defenders had used when they counted states that segregated education at the time of the Amendment’s ratification,11 and that was carried into abortion jurisprudence by Justice Rehnquist in his Roe dissent—a dissent authored just over a year after his confirmation, where debate focused on Rehnquist’s support for Plessy while clerking for Justice Robert Jackson during the arguments in Brown.12
Excavating this history serves several critical ends. First, it demonstrates the workings of constitutional memory. Imagine if the Dobbs Court had said: We reject the modes of determining history and tradition employed in prior substantive due process cases and find our authority to reverse Roe in the method of interpreting the Fourteenth Amendment that segregationists employed to defend Plessy in the Southern Manifesto.13 That too would state Dobbs’s relation to Brown, but for most Americans it would discredit the Court’s decision, rather than imbue it with authority.14 This counterfactual demonstrates how the exercise of public power can be legitimated by appeals to the past—through historical claims that are true or false, or selective, as many of Dobbs’s claims about the past are.15 A first aim of the history this Essay recovers is to counter Dobbs’s legitimating constitutional memory claim by demonstrating the many ways Dobbs resembles Plessy, not Brown.16
As importantly, recovering this history connects debate over the Court’s recent decisions with some of the great constitutional controversies of the last three-quarters of a century. Americans have repeatedly struggled over the question whether application of the Constitution’s guarantees should conform to particular expectations and practices in the deep past or evolve in intergenerational debate. It is striking and perhaps even grotesque that Dobbs counted the same number of states banning abortion in 1868 as the Southern Manifesto counted states segregating schools in 1868.17 However important it is to revisit this history—both to correct errors in Dobbs’s count18 and to examine the Court’s constitutionally significant omissions19—it is just as important to ask why the Court interpreted the Fourteenth Amendment by counting state practice in 1868, and to examine the reasons the Court gave for turning to history as it did.
Counting states can serve different ends. It can support or restrict the evolving application of constitutional guarantees and it can expand the authority of the national government or the states. In Dobbs, the Court counted states banning abortion in 1868 to limit the Fourteenth Amendment’s meaning to the expectations and practices of lawmakers in the mid-nineteenth century, and to return power to local majorities in the states. Dobbs appeals to different structural values than the practices of state-counting that the Court has employed to justify expanding federal constitutional rights20—for example, in decisions that incorporate federal rights against the states21 or appeal to evolving contemporary understandings as a reason to build out the scope of federal rights.22 These practices of state-counting seek to identify an emerging consensus that can support the exercise of federal power.23 In Dobbs, by contrast, counting state practice at the time of the Fourteenth Amendment’s ratification serves to restrict the application of the Fourteenth Amendment’s guarantees to the particular expectations, intentions, and actions of legislators who ratified it and thus to insulate a wide range of practices from federal constitutional review.
In determining the Fourteenth Amendment’s meaning through its ratifiers’ practices and expectations, Dobbs employed a method used by Plessy’s defenders in arguments that Brown refused to accept.24 The Warren Court rejected claims that the Fourteenth Amendment’s meaning resided in these expectations, intentions, and practices, and in methods of interpretation that would entrench the South’s prior practice against constitutional challenge.25 It understood that a nation lives through its commitments and values as well as its practices and would not allow past practice alone to define what America’s Constitution means.
Brown reasoned that equal protection prohibited racial segregation, because separating children “solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”26 Instead of limiting the Constitution’s meaning to the particular expectations, intentions, and practices of its ratifiers, the Warren Court interpreted the Fourteenth Amendment’s guarantees at a higher level of generality, taking into account the experience and perspectives of subsequent generations. Instead of deferring to local majorities in ways that would perpetuate the Constitution’s democratic deficits, the Warren Court interpreted the Fourteenth Amendment to protect the equal participation of those originally locked out of the political process.27 Brown is renowned because it demonstrated how fidelity to the rule of law can be transformative. For generations Brown has exemplified the living Constitution.28 In the wake of Brown, it was widely understood that the Equal Protection Clause should be interpreted at this higher level of generality, as forward-looking, not backward-looking, and not appropriately interpreted by appeals to history and tradition.29
This debate over interpretation in Brown—whether to limit the meaning of the equal protection guarantee to the particular expectations, understandings, and practices of its ratifiers or to read the guarantee as applying to practices that might not have been contemplated by its ratifiers—sheds light on the conflicts now engulfing substantive due process law. Justice Rehnquist counted state practice in 1868 to interpret the liberty guarantee in his Roe dissent, the Reagan Administration employed the method in a brief calling for Roe’s overruling, and a majority of the Supreme Court employed the method to define protections for intimate and family relations in Bowers v. Hardwick,30 prompting conflict that led the Court to reverse the decision.31 Not only Roe, but Planned Parenthood v. Casey,32 Lawrence v. Texas,33and Obergefell v. Hodges34 emerged from a debate over whether courts applying the Constitution’s liberty guarantee should look for guidance to the nation’s traditions understood at a high level of generality—or fixed by practice at the time of the Fourteenth Amendment’s ratification.35 In Casey, Lawrence, and Obergefell, the majority refused to tie the Constitution to particulars of past practice and appealed to equality in defending an evolving application of the Constitution’s liberty guarantees.36
For decades the Court interpreted the Fourteenth Amendment’s liberty guarantee as the Court in Brown had: transformatively, reasoning about the nation’s traditions at a high level of generality to vindicate understandings of liberty and equality that those who ratified the Fourteenth Amendment did not all share. Justice Kennedy reasoned in the spirit of Brown as he explained in Obergefell:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.37
It was not until after Justice Kennedy’s retirement that a Supreme Court constituted to reverse Roe and Casey38 attacked prior cases for reasoning about liberty “at a high level of generality”39 and employed state-counting in 1868 to justify overturning the abortion right—while claiming the Court was acting on the model of the Warren Court in Brown. Examining the history of Brown that Dobbs omitted shows that the Dobbs Court was not acting on the model of the Warren Court in Brown; it was employing a method rooted in the defense of segregation.
Just as importantly, the history this Essay examines helps us think critically about the justifications Dobbs offered for the method it employed to determine the nation’s traditions of liberty. Dobbs defended its use of state-counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee as providing a disinterested standard that would prevent interpreters from reasoning from their values and so protect democracy in the states.40 The history this Essay examines refutes each of these claims. Counting states that segregated education in 1868 was not a neutral measure of the Constitution’s meaning; it perpetuated political inequalities of the past into the future.41 The democracy it supported was a thin majoritarianism—democracy without rights that protected the participation of those historically excluded from the democratic process.42 In other words, it is an account of democracy more like the account defended in Plessy than in Carolene Products Footnote Four43 or in Brown itself—decisions that help legitimate majoritarianism by protecting the infrastructure of democratic participation.44
In tracing the argument that state laws in 1868 are proxies for the understandings of the Fourteenth Amendment’s ratifiers, this Essay uncovers debates of the past that show how originalism and Dobbs’s history-and-tradition method grew out of resistance to Brown and backlash to decisions of the Warren and Burger Courts. Locating debates over interpretive method in the political conflicts in which they arose enables us to evaluate justifications for these methods—to assess whether the methods deliver the goods they promise. Examined in this context, it is easier to see how Dobbs’s turn to history is not disinterested, but instead interested, and serves to veil rather than to constrain the interpreter’s values. Examining interpretive methods and their justifications in the political contexts in which they grew demonstrates how Dobbs’s method conceals dynamic forms of interpretation and enforces disempowering forms of democracy. The Essay’s history should illustrate this even for readers who are not prepared to recognize the debate over segregation as a source of Dobb’s method.
In other words, this Essay refutes the claim that Dobbs is like Brown on terms that contribute to contemporary debates in constitutional law and theory. In refuting the claim that Dobbs is like Brown, the Essay examines the growth of prominent forms of originalism and traditionalism and evaluates their justifications. It asks whether judges applying constitutional standards tied to particular expectations and practices in the deep past are more constrained than judges who do not, the question at issue in judicial debates over “levels of generality”;45 and it considers conditions in which enforcement of fundamental rights can threaten—or promote—democracy.46 Understanding how Americans have disputed these questions over the last three-quarters of a century is critically important for the practice of law—as Americans debate Dobbs’s legitimacy and debate how, if at all, Dobbs should guide federal and state courts in interpreting liberty and equality guarantees.
The Essay unfolds in three parts. Part I of this Essay shows that in Dobbs the Court appealed to Brown as authority for overturning Roe while it justified reversing Roe through modes of interpretation that the Southern Manifesto employed to advocate resistance to Brown.47 It will then show how, once it was no longer acceptable to defend segregation, conservatives redirected these forms of argument to defend other contested practices, including laws banning abortion and sodomy.48 This history shows how over time claims on original intention were abstracted away from the open defense of segregation and redirected toward defending traditional ways of life in a wider range of contexts.
The Essay next examines the justifications Dobbs offered for its state-counting method—that counting states banning abortion in 1868 would constrain judges from reasoning from their values and thus protect democracy. Part II interrogates the claim that examining the practices of those who ratified the Fourteenth Amendment offers an objective and impersonal proxy for its meaning, first showing how the method advanced interpreters’ values in the debate over segregation and then demonstrating this in a several-decade debate between Justice Kennedy and Justice Scalia over substantive due process law. Examining justifications for interpretive methods in political context makes vivid how in debates over abortion and gay rights, as in the debate over segregation, a backward-looking standard that appears to fix the Constitution’s meaning in the past in fact vindicates the interpreters’ values and functions as a veiled form of conservative living constitutionalism.
Part III shows how examining the history of Dobbs’s method and its justifications changes the questions we ask of Dobbs’s claim that overturning Roe promotes democracy.49 Dobbs reasons about constitutional rights as an illegitimate intrusion on democratic self-government—as Plessy did—rather than a necessary precondition of democratic self-government—as Brown did. Dobbs defines the Constitution’s liberty guarantee through lawmaking in 1868 from which women and minorities were excluded, and the democratic processes it sanctions perpetuate these same political inequalities, as this Essay demonstrates through an account of race and gender conflicts over the abortion bans Dobbs authorized in Mississippi. In Mississippi politics we can see how the liberty and democracy Dobbs protects entrench the political inequalities of 1868.
In Dobbs, the Court prominently and repeatedly cited Brown as authority for overruling past precedent, particularly decisions that were “egregiously wrong on the day they were handed down.”50 In overturning Roe, the Roberts Court claimed it was acting as the Warren Court had in overturning Plessy—that Dobbs was like Brown. Chief Justice Roberts drew upon this analogy to organize his entire year-end report on the federal judiciary, which emphasized the Court’s security needs by recounting threats faced by judges enforcing Brown.51 If his point were only to remind the public that the Justices need and merit protection, Roberts might have recalled the years of violent threats against Roe’s author, Justice Blackmun, who had a shot fired through the window of his home following an intimidation campaign by violent antiabortion groups.52 But Roberts was not simply discussing the Justices’ security needs. By identifying the Court that decided Dobbs with courts enforcing Brown, Roberts sought to rehabilitate the authority of the Court that reversed Roe and to discredit citizens protesting its decision.53
In much the same way, Dobbs’s claims on Brown seek to enhance the authority of the Court that reversed Roe and to discredit its critics. The power of these constitutional memory claims depends on selectivity. Their capacity to legitimate the Court’s decision in Dobbs diminishes if we consider aspects of Dobbs’s relation to Brown that the Court does not recount. We begin that process as we recognize that Dobbs justifies overruling Roe through methods of interpreting the Fourteenth Amendment that defenders of segregation employed to attack Brown.
Roe reasoned about the Fourteenth Amendment’s liberty guarantee as a commitment whose meaning can be derived from the nation’s history and traditions as those traditions evolve in history.54 To justify overruling Roe, the Court introduced a method of determining history and tradition in the substantive due process line of cases that it had not used in decades, a method that defined tradition in terms of particular practices in the deep past. The Court counted state practice at the time of the Fourteenth Amendment’s ratification—arrayed in an appendix for emphasis55—and declared that America was a nation with a tradition of banning abortion. Dobbs claimed: “By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.”56 (The count is incorrect.57) The Court also claimed that “[t]his overwhelming consensus endured until the day Roe was decided. At that time, by the Roe Court’s own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother.”58
Counting states according to laws enacted in 1868 seems on the face of it to tie constitutional meaning to impersonal criteria. But employing this method of identifying the nation’s traditions entrenches values. The standard defines the Constitution’s meaning as static and fixed in the deep past—and through laws enacted when women and people of color were excluded from voting and legislating. In short, it was not the Court’s turn to history and tradition, but rather how the Court ascertained the nation’s history and traditions that supplied justification for reversing the abortion right and threatened the line of due process decisions from Griswold v. Connecticut59to Obergefell.60
And it is this very feature of the Court’s reasoning in Dobbs that can be traced to constitutional conflicts over segregation. Prominent lawyers and public officials arguing in courts and in politics at the time of Brown—including the Southern Congressional delegation—counted state laws segregating education at the time of the Fourteenth Amendment’s ratification to demonstrate that segregation was immune from constitutional oversight.61 In this history, we see the elements of method and justification that Dobbs shares with early originalism. Interrogating Dobbs’s claims about Brown returns us to a time when claims on original understanding were simply one mode of constitutional argument among many and shows how, through conflict, those defending segregation came to embrace claims on original understanding as superior authority that could be used to attack the Court’s own decisions.
We can see in these arguments an early expression of what would come to be orthodox tenets of originalism—that original understanding has greater authority than doctrine, and that it can be ascertained by means that are objective, impersonal, and free of an interpreter’s value judgments.62 Yet this very same history illustrates how claims about the trumping authority of original understanding, and state-counting in 1868 as a proxy for the original understanding, were motivated reasoning. Segregation’s defenders understood that it would preserve the existing racial order—and weaken the Fourteenth Amendment’s limits on state action—if they defined those limits through the practices of states the Amendment was designed to constrain, many of which ratified the Amendment as a condition for readmission after secession.63 After examining the history that undermines the Court’s claim that Dobbs is like Brown, we are in a different position to understand Dobbs’s relationship to originalism, and how the very elements of Dobbs’s method that tie the decision to originalism—interpreting the Fourteenth Amendment by counting states that banned abortion in 1868—express rather than constrain the interpreters’ values.
Segregation’s constitutionality under the Equal Protection Clause was long justified under Plessy as a matter of stare decisis, custom, and the prerogative of sovereign states. The decision of the three-judge panel upholding South Carolina’s prerogative to segregate its schools in the 1951 case of Briggs v. Elliott64 emphasized that “there is no denial of the equal protection of the laws in segregating children in the schools for purposes of education, if the children of the different races are given equal facilities and opportunities. The leading case on the subject in the Supreme Court is Plessy v. Ferguson . . . .”65 Notwithstanding the evidence of segregation’s harm to children introduced by NAACP lawyers Thurgood Marshall, Robert Carter, and Spottswood Robinson,66 the federal court refused to hold that segregation was itself a violation of equal protection:
[W]hile the federal government protects the fundamental rights of the individual, it leaves to the several states the solution of local problems. In a country with a great expanse of territory with peoples of widely differing customs and ideas, local self-government in local matters is essential to the peace and happiness of the people . . . .67
A form of state-counting played a role in this judgment, but it was not focused on 1868. Judge John Parker’s opinion argued:
[W]hen seventeen states and the Congress of the United States have for more than three-quarters of a century required segregation of the races in the public schools, and when this has received the approval of the leading appellate courts of the country including the unanimous approval of the Supreme Court of the United States at a time when that court included Chief Justice Taft and Justices Stone, Holmes and Brandeis, it is a late day to say that such segregation is violative of fundamental constitutional rights.68
Custom, legislation, and the Court’s own decisions established the Constitution’s reach. Parker invoked Lochner v. New York69 to counsel judges against reaching into politics to decide matters properly left to legislative decision, warning that “[t]he members of the judiciary have no more right to read their ideas of sociology into the Constitution than their ideas of economics.”70
But as Plessy’s authority weakened and the Court considered developing new equal protection doctrine, defenders of segregation added to their arguments from stare decisis an appeal to the Fourteenth Amendment’s original understanding that might strengthen Plessy’s authority. Arguments about state practice in 1868 entered the debate over segregation in this context, as evidence about the understandings and expectations of the Amendment’s ratifiers.
John W. Davis, the renowned Supreme Court litigator who represented South Carolina in the Supreme Court in the cases consolidated into Brown, focused his arguments on the Amendment’s original understanding.71 To prove that segregation was consistent with the Amendment’s original understanding, Davis urged the Court to focus on evidence from the time of its ratification. At argument in Briggs,72 Davis waved away a suggestion from Justice Burton that “the Constitution is a living document”73 and a question from Justice Frankfurter about whether the meaning of equal might be “fluid.”74 Davis countered the Justices’ suggestion that the requirements of equal protection might change by insisting instead that the language of the Constitution should be read as fixed by the understandings of those who ratified it.75 He found evidence of the ratifiers’ understandings in the decision of the Congress that proposed the Fourteenth Amendment to maintain segregated schools in the District of Columbia.76 He also found it in a tally of states: “Of those thirty ratifying states, 23 either then had, or immediately installed, separate schools for white and coloured children.”77 The implication was that one could ascertain how those who ratified the amendment expected it would apply by counting states that preserved or added laws requiring racially segregated schools in 1868. Whereas Judge Parker had tallied states with a longstanding practice of segregating education at the time of his decision, presenting the count as a proxy for custom,78 Davis urged the Supreme Court to count states that segregated education at the time of the Fourteenth Amendment’s ratification, presenting the count as a proxy for the Amendment’s original expected application.
South Carolina’s brief highlighted state practice during Reconstruction.79 It included an appendix collecting all state provisions mandating school segregation existing at the time the Amendment was ratified or enacted shortly thereafter,80 and emphasized the importance of respecting “[l]ocal self-government in local affairs” in a federated system.81
In response to these arguments, a divided Supreme Court requested reargument in Brown, now focusing on the question of the Fourteenth Amendment’s original understanding—at least its original expected application. The Court sought evidence whether “the Congress which submitted and the state legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?”82 South Carolina responded by highlighting states that enacted laws segregating schools at the same time that they ratified the Amendment, proffering these state counts as evidence of the ratifiers’ expectations of the Amendment’s application.83 The state’s brief on reargument included further discussion of state practice at the time of ratification, including state-count evidence in various subcategories.84 During Brown’s reargument, other states put forth similar state-counting arguments. These included Virginia,85 Delaware,86 and Kansas.87
It is remarkable how directly the Brown opinion—written in ordinary language for the public and in terms designed to avoid arousing the South88—rejected claims on original understanding that segregation’s defenders had advanced. In Brown, the Supreme Court characterized the evidence on the adoption history of the Fourteenth Amendment as “inconclusive.”89 Going farther, Brown rejected the argument that the Court should base its decision on expectations and intentions at the time of the Fourteenth Amendment’s ratification: “In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted,”90 the Court famously reasoned. This was the Court’s response to arguments from original understanding. The Court never otherwise addressed the South’s state-counting arguments or other evidence of the ratifying states’ understandings and expectations.
And precisely as the Court itself rejected the South’s claims that understandings at the time of the Fourteenth Amendment’s ratification should decide segregation’s constitutionality, Southerners turned their appeal to original understanding into a rallying cry of resistance, imbuing claims on original understanding with vivid racial import. The “Southern Manifesto,” a statement of 19 Senators and 77 Representatives condemning the Court’s decision in Brown, argued that Brown was contrary to the intentions of the Fourteenth Amendment’s framers.91 Counting states that imposed school segregation in 1868 featured prominently in their argument. A historian of the Manifesto has shown that its reasoning, “like most segregationist thought, followed John W. Davis’s oral arguments in Briggs v. Elliott (1952) . . . . Russell’s and Thurmond’s initial drafts, as well as all of the subsequent recommendations of the southern senators, had drawn upon Davis’s reasoning.”92 The Manifesto famously declared:
The original Constitution does not mention education. Neither does the 14th amendment or any other amendment. The debates preceding the submission of this 14th amendment clearly show that there was no intent that it should affect the systems of education maintained by the States.
The very Congress which proposed the Amendment subsequently provided for segregated schools in the District of Columbia.
When the amendment was adopted in 1868, there were 37 States of the Union. Every one of the 26 states that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same law-making body which considered the 14th amendment.93
The Manifesto shaped the language of massive resistance.94 In its wake, appeals to original “intent” and framers’ “intent” circulated widely in politics, legitimating opposition to Brown by, as historians have observed,95 seeming to shift the argument away from race to focus on the Court’s constitutional authority to intervene in segregation.96 Precisely as the Warren Court rejected original understanding as the ground on which to interpret equal protection,97 critics of the Warren Court’s desegregation decisions embraced original intent as a rallying cry of resistance.
Claims on original understanding as one of many ways to interpret the Constitution have existed for centuries.98 But claims that original understanding is the only proper way to interpret the Constitution, and constitutes a ground for attacking the Court’s decisions, took shape in the decades after Brown.99 As the Court began to interpret equal protection in ways it had not before, defenders of segregation increasingly came to defend segregation through claims on original intention—intention now serving as a shorthand for an expanded understanding of the authority of original understanding that had power to trump the Court’s decisions—especially, the new body of equal protection doctrine that was emerging in Brown’s wake.
These are the missing pieces of Dobbs’s relationship to Brown. The Southern Manifesto relied upon state-counting in 1868 to prove the Fourteenth Amendment’s original “intent.” That argument (indeed, that precise tabulation) resurfaced in an almost uncanny way in Dobbs, in which the Court observed “that by 1868 the vast majority of States criminalized abortion at all stages of pregnancy,” emphasizing that “26 out of 37 States prohibited abortion before quickening.”100
Understanding why and how advocates turned to these claims about original understanding to prevent and then to attack the development of equal protection law suggests how state-counting in 1868 could be employed to oppose the development of substantive due process law. A mode of argument that ties the meaning of principles expressed in the Constitution’s text to the expectations of lawmakers who ratified the Amendment is likely to restrict the meaning of those principles, by rooting them in assumptions about status and custom prevailing in the nineteenth century. This prospect was not abstract; it was richly demonstrated in the fight over segregation. The Southern Manifesto showed that claims on original intent, backed by counts of state practice in 1868, were a powerful ground on which to refute a dynamic interpretation of the Constitution’s text. In the wake of this fight, the claim on intent was implicitly racialized, and associated with defense of traditional ways of life.101
As the Court began to extend substantive due process law to protect intimate and family decisions, state-counting in 1868 entered the debate over abortion and gay rights.
There is one prominent moment when counting states at the time of the Fourteenth Amendment’s ratification jumped the tracks from an argument about equal protection in Brown to an argument about the meaning of the due process liberty guarantee, and it is Justice Rehnquist’s dissent in Roe. As the campaign against Brown declined in legitimacy, Rehnquist drew on arguments that the South had used to oppose Brown and turned them against Roe. Counting state practice at the time of the Fourteenth Amendment’s ratification figured prominently.
His dissent in Roe began by comparing Roe to Lochner,102 suggesting the Court’s decision impermissibly intruded on politics. He then objected that the decision’s reasoning “partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment,” and employed state-counting to connect a claim about original intent to majoritarianism and tradition.103 “The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortion for at least a century is a strong indication it seems to me” that the abortion right was not in American traditions.104 “By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.”105 “While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.”106
There is good reason to think that in counting state practice in 1868 to argue that Roe was contrary to American traditions and to “the intent of the drafters of the Fourteenth Amendment,” Justice Rehnquist was drawing on modes of argument learned in the debate over segregation in Brown.107 Consider the evidence. Only the year before the publication of his Roe dissent, Rehnquist’s confirmation vote was engulfed in conflict when news surfaced of a memo he wrote as a clerk to Justice Jackson during the 1952 Term arguing that segregation was constitutional and that Plessy “was right and should be reaffirmed.”108 His memo defending Plessy, titled “A Random Thought on the Segregation Cases,” did not employ state-counting but did focus on John W. Davis’s and Thurgood Marshall’s oral argument in Briggs.109 The memo defended Plessy as the court in Briggs had: suggesting that a decision striking down segregation would be illegitimate like Lochner.110 This memo provides compelling evidence suggesting that the forms of argument that Rehnquist employed in his Roe dissent—state-counting in 1868, appeals to original intent, and comparisons to Lochner to discredit judicial review—were forms of argument learned from those defending segregation.
The memo was introduced in Justice Rehnquist’s confirmation hearings just before the vote in December of 1971, accompanied by the testimony of more than ten witnesses to his efforts to challenge the credentials of minority voters in 1960, 1962, and 1964; the public’s vehement reaction persuaded Rehnquist he needed to disassociate himself from the memo’s defense of Plessy (and its comparison of Brown to Lochner) to assure his confirmation to the Court.111 Rehnquist’s confirmation crisis helped make clear that it was no longer acceptable for persons seeking federal office to openly criticize Brown or defend Plessy.112 Rehnquist secured confirmation by claiming he wrote the memo to satisfy Justice Jackson’s interest in seeing its argument and by, for the first time, affirming his fealty to Brown.113 Prominent historians have concluded that the memo expressed Rehnquist’s own views,114 and that this and other confirmation conflicts over conservative nominees’ ties to segregation helped “canonize” the Brown decision by leading conservatives as well as liberals to assert that the case was rightly decided. This convergence of views from left and right appeared to lift judgments about the Brown decision above politics.
Within the year, Justice Rehnquist authored a dissent that seemed to redirect original intent arguments—counts of state practice in 1868, unfettered majoritarianism, states’ rights, and the defense of tradition—as well as his objection that judicial intervention in Brown, like Lochner, was an illegitimate interference with democracy, from the attack on Brown to an attack on Roe. This familiar repertoire of arguments performed similar work in a new setting, providing a language to express values in apparently objective and impersonal form—and in an idiom that had powerful associations with opposition to Brown.
These claims on original understanding took root in the antiabortion movement in the 1980s as it abandoned its quest to reverse Roe by constitutional amendment and focused its hopes for reversing Roe on the courts. In the 1980s the Reagan Administration came to power in a new coalition that sought to realign Southerners, conservative Catholics, and other longtime members of the Democrats’ base by publicly and prominently extending original intent arguments to attack the Court’s decisions on abortion and other culture war topics, including bussing and affirmative action.115 The attack on Roe played a central part in the Reagan Administration’s originalism.116 Members of the pro-life movement did not naturally embrace originalism but slowly learned to speak the language as members of this disparate New Right coalition.117
On the Constitution’s bicentennial, Attorney General Edwin Meese III provoked a famous debate with Justice Brennan by arguing that a “jurisprudence of original intention” spoke to a range of constitutional controversies about rights and structure, claiming that original intention was ideologically neutral,118 yet associated with conservative outcomes in all of them.119Following key points of Justice Rehnquist’s dissent in Roe,120 Meese identified Griswold and Roe as contrary to a jurisprudence of original intention and associated the decisions with Lochner, arguing that the substantive due process cases usurped states’ democratic prerogatives, much as defenders of segregation once associated Brown with Lochner and argued that interpretation of the Fourteenth Amendment as prohibiting segregation was an illegitimate intrusion on the sovereign prerogatives of states.121 The Justice Department’s publications emphasized the virtues of originalism in comparison to theories supporting evolving application of constitutional guarantees exemplified by Griswold and Roe.122 When the Reagan Administration called for Roe’s overturning in 1985, Attorney General Meese invoked “a [j]urisprudence of [o]riginal [i]ntention” as grounds for attacking Roe and Griswold.123 The Administration’s brief calling for Roe’s reversal concluded in an appeal to the framers’ intention and state-counting.124 Thereafter Professor James S. Witherspoon published Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment,125 with numerous counts of state law keyed to 1868, which Dobbs would cite in support of its claims.126
In 1986, the Supreme Court in fact counted state laws at the time of the Fourteenth Amendment’s ratification to impose limits on substantive due process law in the Court’s now repudiated decision in Bowers,127 which employed state-counting in 1868 to show that protections for same-sex sex were outside the nation’s history and traditions.128 The decision helped justify the Court’s refusal to protect gay rights for nearly two decades, until its reversal in Lawrence.
The Supreme Court might well have continued to reason about substantive due process law in this backward-looking fashion had President Reagan succeeded in appointing Judge Bork, who had attacked Griswold in a 1971 article that came to be viewed as a foundation for originalism.129 But Bork’s hostility to substantive due process and a panoply of other rights aroused public opposition leading to the defeat of his nomination, and to Anthony Kennedy securing the appointment instead.130
Throughout his time on the Court, Justice Kennedy again and again opposed Justice Scalia’s efforts to impose a standard looking to the practices or expectations of the Constitution’s ratifiers to restrict the development of substantive due process law. Instead, Kennedy embraced a dynamic understanding that approached tradition in substantive due process cases as what Justice Harlan famously called “a living thing.”131 It was only after President Donald J. Trump’s appointments reshaped the Court that a new majority revived a standard of counting state law in 1868 to identify the nation’s history and traditions—and then employed this method to reverse Roe.
II. originalist and history-and-tradition methods: how assertedly objective claims on the past can conceal and express an interpreter’s values
Without ever acknowledging that it was changing the law, Dobbs broke with the dynamic understanding of history and tradition that guided the Court in Griswold, Roe, Casey, Lawrence, and Obergefell,132 and instead identified protected liberties through an understanding of history and tradition focused on practices at the time of the Fourteenth Amendment’s ratification. As we have seen, it was by counting states that banned abortion in 1868 that the Dobbs Court justified reversing Roe as outside the nation’s history and traditions.133 Part I has shown that the method of interpreting the Fourteenth Amendment Dobbs employed to reverse Roe was prominently employed to defend segregation. This Part examines the justifications Dobbs offered for replacing a substantive due process standard that viewed the nation’s history and traditions as evolving with a standard that viewed the nation’s history and traditions as fixed by particular understandings and practices in the past—justifications to which judges and lawyers have appealed in Dobbs and other cases.134
In justifying an interpretive method focused on the expectations and practices of 1868, Dobbs drew on Justice Scalia’s justifications for originalism. In Originalism: The Lesser Evil, Scalia warned that “the main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law,” and claimed that “[o]riginalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”135
Dobbs appeals to this familiar justification for originalism as it justifies its own method, which so prominently relies on state-counting in 1868 to identify liberties protected under the Fourteenth Amendment. The Dobbs majority claimed that in interpreting the Fourteenth Amendment’s liberty guarantee, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.”136 Warning against allowing “the liberty protected by the Due Process Clause [to] be subtly transformed into the policy preferences of the Members of this Court,”137 the Dobbs Court claimed that tying law to the past would prevent judges from injecting their “policy preferences” into the interpretation of the Constitution’s liberty guarantee. “[W]hen the Court has ignored the ‘[a]ppropriate limits’ imposed by ‘respect for the teachings of history,’ it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner . . . .”138 Just as defenders of segregation invoked Lochner to warn the Brown Court against interfering with the legislative prerogatives of the states,139 so too did Dobbs appeal to Lochner, warning that substantive due process “has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.”140
In short, the Dobbs Court claimed that its method tying the Constitution’s meaning to a count of state laws at the time of the Fourteenth Amendment’s ratification was critical to prevent judges from introducing their values in the Constitution’s interpretation and encroaching on states’ freedom of self-government. Fidelity to original understanding would constrain the Justices from acting on their values, and thus protect democracy in the states. Dobbs did not acknowledge what even Justice Scalia conceded in Originalism: The Lesser Evil: that the turn to history will not prevent a judge from “projecting upon the age of 1789 current, modern values”141—though the appeal to history can and often does conceal it.
This Part probes the Court’s claim that use of history constrains expression of the Justices’ values. (Part III will then examine the Court’s claim that its use of history protects democracy in the states.) First, drawing on the equal protection conflict over Brown, Section II.A shows how the decision to employ an apparently objective and impersonal standard that counts state practice in 1868 can conceal, rather than constrain, expression of an interpreter’s values. Section II.B examines this same question in cases interpreting the Constitution’s liberty guarantee. In particular, it examines the decades-long debate between Justice Kennedy and Justice Scalia over dynamic and backwards-looking substantive due process standards in the years preceding Dobbs. This debate reveals how Dobbs’s choice of method is no less dynamic, living, and value-based than the case law it attacks.
A. The Right’s Living Constitution: How the Appeal to Ratifiers’ Practices, Expectations, and Intentions Can Express the Interpreter’s Values
As we have seen, Dobbs justified its approach to history and traditions as fixed in the distant past on the grounds that “limits imposed by respect for the teachings of history” would prevent interpreters from reasoning from their values.142 This claim—a common justification for originalist methods143—is undermined by the genealogy of state-counting in 1868 that we have just examined. Arguments over segregation show how the method Dobbs embraced—counting state practice at the time of the Fourteenth Amendment’s ratification as a proxy for its ratifiers’ expectations or intentions—provided a framework in which interpreters could express their values in seemingly impersonal form.
Defenders of segregation chose a particular way to analyze the reach of the Equal Protection Clause. The standard they advocated amplified the original Constitution’s democratic deficits by tying the meaning of the Equal Protection Clause to the decisions of legislators who excluded minorities (and women) as unfit to participate in the legislative process.144 The standard tethered the Reconstruction Amendments to customs of the Confederacy: it treated the lawmaking of states segregating education in 1868—most of which were Confederate states then-resisting emancipating their slaves, the precise conduct the Amendments sought to constrain—as evidence of the Fourteenth Amendment’s original understanding.145 (In Brown, the litigants challenging segregation attacked standards tied to customary practice that entrenched racial inequality.146) The standard entrenched the status-based assumptions of the past by arguing that the ratifiers’ practices, expectations, or intentions limited the meaning of the great principles enunciated in the Fourteenth Amendment’s text and prevented courts from interpreting the Equal Protection guarantee in light of changing circumstances and the public’s evolving understanding of its commitments. In short, the standard by which segregation’s defenders chose to interpret the Equal Protection Clause was neither neutral nor impersonal. In the debate over segregation, counting state laws in 1868 as a proxy for original intent was a standard that expressed the interpreters’ values in (thinly) veiled form.
Yet over time, critics of the Warren Court would come to argue that claims on original understanding were authoritative precisely because they were impersonal. As it became increasingly unacceptable to defend segregation in the era of Brown, those seeking to preserve traditional ways of life shifted away from the defense of segregation itself to focus on “original intent” as the root of the Constitution’s meaning and authority, and employed “original intent” as a shorthand for attacking the decisions of the Warren Court.147 By the 1970s Justice Rehnquist and Robert H. Bork showed how original intent—with or without state-counting—could be deployed to attack new targets; they each appealed to the Constitution’s ratification in condemning Roe and Griswold.148 In the 1980s, the Meese Justice Department invoked a “jurisprudence of original intention” to discredit Roe and other decisions of the Warren and Burger Courts extending rights to members of historically excluded groups149—even though the Department had no method or historical evidence to support these claims.150 The Meese Justice Department did not directly attack Brown; instead it spoke through indirection, arguing, for the first time, that a “neutral,” “colorblind” Brown was consistent with original intention, while continuing to honor, associate with, and assist Brown’s critics.151 Across these cases, the Reagan Administration and its allies disparaged evolving applications of the Constitution’s guarantees—the very approach Brown symbolized—and claimed that original intention was a neutral arbiter of the Constitution’s meaning.152 It was in this era that Justice Scalia argued that originalism (as an “ism”) was superior to an evolving understanding of the Constitution because “[o]riginalism . . . establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”153
These claims did not go unanswered. Critics replied that, rather than tethering the Constitution to seemingly impersonal historical standards, appeals to original intent expressed the interpreters’ values and amounted to a disguised practice of living constitutionalism. In 1985, Professor Laurence H. Tribe observed that the Meese Justice Department was invoking “original intent” to discredit decisions that opened public life to the equal participation of members of historically excluded groups, and suggested that the Administration was:
manipulating the appeal to original intent in order to give a gloss of respectability and a patina of neutrality to a particular social vision that is unconcerned with racial justice and the plight of the oppressed, that is quick to disapprove the tragic choice of women who find themselves unable to continue a pregnancy, and that yearns to prop up the waning authority of the state with the symbols of the church.154
To justify overruling Roe, the Dobbs Court employed a standard for determining history and tradition in substantive due process cases that the Supreme Court had not used in Roe, Casey, Lawrence, Obergefell—or even in Washington v. Glucksberg,155 the very decision Dobbs invoked to justify reversing Roe. Griswold, Roe, Casey, Lawrence, and Obergefell reasoned about traditions as living and evolving, as Justice Harlan famously reasoned in Poe v. Ullman156—not static or fixed by particular understandings and practices in the past. Glucksberg itself recognized Casey and the abortion right as within America’s history and traditions of liberty,157 though Dobbs never acknowledged this. To rewrite Glucksberg’s own account of the nation’s history and traditions of liberty, Dobbs employed a doctrinal framework for determining tradition that the Court had not used in any of these prior due process cases. Dobbs justified reversing Roe by deriving the nation’s history and traditions from a list of laws banning abortion in 1868, specifically arrayed in an appendix to the opinion.158
Dobbs was methodologically hybrid. Its source of authority was doctrinal (prior substantive due process decisions), yet the Court introduced into the case law a focus on lawmaking in 1868, infusing substantive due process doctrine with “originalish” concerns. Originalists complained.159 Many were not satisfied by Justice Alito’s suggestion that his version of substantive due process doctrine would deliver the very goods that originalists promised their method produced: an objective, impersonal account of the Constitution’s meaning that separated law from politics (as originalists claimed methods recognizing the Constitution’s evolving application could not).160
Considered in this context, it should be clear that the standard that Dobbs employed to guide application of the Constitution’s liberty guarantee was not impersonal or “neutral,” as Justice Kavanaugh repeatedly emphasized.161 Dobbs rejected understandings of living tradition that guided the Court’s decisions in Griswold, Roe, Casey, and Obergefell—and that the Senate invoked in rejecting Judge Bork’s nomination for the Supreme Court162—and employed a method of reasoning about the nation’s history and traditions that Bowers employed in holding that laws criminalizing same-sex sex are outside the Fourteenth Amendment’s reach. Dobbs’s choice of methods expressed the Justices’ values.163 In Dobbs, the Court was embracing understandings of the history-and-tradition method that Justice Scalia long espoused in dissent from substantive due process opinions that Justice Kennedy authored for the Court. Justice Kennedy joined the Court after Bowers, in the wake of Judge Bork’s defeat; for decades he and Justice Scalia debated how to apply the liberty guarantee; and during this time Kennedy repeatedly prevailed, writing opinions for the Court that rejected a backwards-facing standard in favor of a dynamic application of the Constitution’s liberty guarantee. Kennedy defended that dynamic standard until he retired and was replaced by a President who promised to reverse Roe through his appointments.164 The Court refashioned by President Trump chose a standard that equated the meaning of the Constitution’s liberty guarantee with laws enacted in 1868—a time when law so systematically enforced “gender-role divisions that the Supreme Court itself authorized states to bar women from voting and to deny women the right to practice law.”165
As we examine the long-running debate between Justice Kennedy and Justice Scalia about how to identify the history and traditions that should guide interpretation of the Constitution’s liberty guarantee, we can see the Justices discussing the values guiding their choice of method. Kennedy’s opinions consistently cojoined an emphasis on an evolving application of the liberty guarantee with attention to concerns about respecting equal citizenship. These two interconnected qualities of his opinions were so pronounced as to draw repeated comparisons to Brown.166 Scalia savagely attacked these decisions as politics and preference, not law.
We can see the debate between Justice Kennedy and Justice Scalia in 1992, in Planned Parenthood v. Casey,167 when a Court expected to reverse Roe instead decided to narrow and reaffirm the decision. Emphasizing Justice Harlan’s dynamic understanding of liberty in substantive due process cases since Griswold, Casey asserted that “[n]either the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.”168 Reasoning from this dynamic understanding of liberty, Casey repeatedly invoked concerns about sex equality in justifying its decision to reaffirm the abortion right.169 The joint opinion engaged in the radically gender-egalitarian act of identifying decisions about childbearing at the core of self-definition, of dignity, autonomy, and liberty: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”170 In so reasoning, the Court engaged in an act of transformative inclusion that said, women—even with respect to child bearing—are persons, too. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”171
Justice Scalia dissented, arguing that the Court should not interpret the “liberty” protected by the Due Process Clause to include practices which “the longstanding traditions of American society have permitted . . . to be legally proscribed.”172 In support of this tradition-preserving standard he appealed to a footnote in his opinion in Michael H. v. Gerald D.173 that he and Chief Justice Rehnquist, but not Justice Kennedy, joined, that discussed Bowers’s count of states in 1868174for the proposition that “in defining ‘liberty,’ we may not disregard a specific, ‘relevant tradition protecting, or denying protection to, the asserted right.’”175 Where the Court stood by its understanding of the nation’s history and traditions as evolving and growing in response to new understandings of women as equal citizens, Scalia suggested that interpreting the liberty guarantee to recognize change of this kind was mere politics, and argued that the Court should tie the meaning of the liberty guarantee to a more particularized understanding of tradition in the distant past.
Justice Scalia argued that his proposed standard was objective and impersonal. As he had in Originalism: The Lesser Evil, Scalia claimed that a standard that tied the meaning of the liberty guarantee to the particulars of past practice constrained his preferences, whereas disparagingly he asserted that “the Court does not wish to be fettered by any such limitations on its preferences.”176 But in asserting that the Court should restrict the meaning of constitutional guarantees to particular expectations and practices of the past, Scalia was choosing how to be bound. As Professors Laurence H. Tribe and Michael C. Dorf put it, “[t]he selection of a level of generality necessarily involves value choices.”177 In Casey, Scalia’s choice of standards helped vindicate his opposition to abortion. (Scalia was as hostile to the abortion right—he compared abortion to bigamy178—as the authors of the Southern Manifesto were hostile to Brown.) Scalia singled out for special contempt the passage of the joint opinion that protected a pregnant woman’s autonomy to decide her life’s course.179
These attacks provoked the Casey Court expressly to repudiate Justice Scalia’s efforts to tie the meaning of liberty to a particular and backwards-looking standard. Casey opposed the rights-restricting claim “that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.”180 In support of its dynamic approach, the Casey Court cited a string of cases, proudly leading with Loving v. Virginia181—an opinion in which the Warren Court struck down laws prohibiting racial intermarriage on both due process and equal protection grounds.182
This same debate between Justice Kennedy and Justice Scalia recurred in Lawrence. Kennedy justified the Court’s decision to overturn Bowers by showing the decision’s historical errors—and by asserting an evolving application of the Constitution’s liberty guarantees supported by authority in the years before and after Bowers.183 Scalia fiercely objected to the majority’s reasoning in a dissent that quoted Bowers counting state practice at the founding, in 1868, and in the present.184 Kennedy directly and resoundingly rejected Scalia’s efforts to restrict the meaning of the Constitution’s guarantees to the ratifiers’ particular expectations and practices—to the past described at the most specific level of generality.185 Kennedy’s opinion for the Court concluded:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.186
This same debate between Justice Kennedy and Justice Scalia recurred yet again in Obergefell. Here, too, Kennedy emphasized the importance of dynamic interpretation, reading the Constitution’s liberty guarantee as a responsibility delegated to future generations—not a commitment limited by the expectations and practices of its ratifiers—and cautioning, as the introduction of this Essay recounts, “The nature of injustice is that we may not always see it in our own times.”187 The Court acknowledged that Washington v. Glucksberg188 “called for a ‘careful description’ of fundamental rights” “defined in a most circumscribed manner, with central reference to specific historical practices.”189 But it ruled that while Glucksberg’s approach might suffice for the right to physician-assisted suicide there at issue, it was “inconsistent with the approach this Court has used in discussing other fundamental rights,” citing cases including Loving and emphasizing that “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”190 Kennedy’s appeal to Loving was a reminder of how a direction to follow history and tradition at the most specific level of generality could entrench inequality.
Where Justice Kennedy appealed to Loving, Justice Scalia’s dissent in Obergefell denounced the majority’s decision to protect same-sex marriage by appealing to the Fourteenth Amendment’s expected application, which he inferred from state laws enacted in 1868, much as the defenders of segregation had:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.191
Scalia inveighed against dynamic interpretation as usurping the people’s prerogatives of self-government: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”192
In sharp contrast to Justice Scalia, Justice Kennedy’s appeal to Loving highlights his view—recounted in the introduction to this Essay—that every generation is responsible for acting in fidelity to the Constitution’s guarantees.193 And as his appeal to Loving suggests, in Casey, Lawrence, and Obergefell, the Court was insistent on taking responsibility for decisions about how to apply the Constitution’s guarantees in cases where liberty and equality intersect.194 refused to define the Fourteenth Amendment’s guarantees by state-counting in 1868 or the ratifiers’ particular expectations and practices, just as the Warren Court had in Brown. The Court was seeking to disentrench the original Constitution’s democratic deficits, and not to exacerbate them. Repeatedly, Scalia attacked these decisions as politics, not law.
Justice Scalia’s appeal to the law-politics distinction was rooted in dispute over the history-and-tradition method at issue in the substantive due process cases. From the time he penned Originalism: The Lesser Evil, Scalia insisted that tying interpretation of the Constitution to historical facts “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”195 But facts, however ascertained, do not decide cases themselves; interpretation is required to identify which facts are relevant and why. Judicial discretion is just as plainly involved in selecting and applying the standards that Scalia favored, for example, characterizing traditions of liberty at “the most specific level at which a relevant tradition protecting . . . the asserted right can be identified.”196 In claiming that his historical method rendered judgment impersonal, Scalia was disowning interpretive agency and responsibility for judgments that initially, at least, he conceded would likely be shaped by the judges’ values.197 Scalia’s appeal to history concealed the values grounding his judgment. Again and again, he complained that the majority was reasoning from its values, talking “politics,” while he was talking law.198
Simply put, Justice Scalia’s argument that the Fourteenth Amendment’s meaning should be fixed in light of particular practices and expectations of its ratifiers concealed a method of interpretation that was no less dynamic than Justice Kennedy’s. As we have seen, in advancing these claims on constitutional memory, Scalia was choosing how to be bound, singling out and characterizing historical facts that, he asserted, decided the case before him—even as he creatively depicted himself as constrained.199
We can see how Justice Scalia’s claims on constitutional memory advance value-based judgments from a different vantage point, by focusing on his methodological inconsistencies. For example, Scalia famously talked about his commitment to following original public meaning, the ratifiers’ understanding of the text.200 Yet, in these cases we have just examined, Scalia did not focus on the meaning of the Constitution’s text, which might be understood at a relatively high level of generality201 and is underdeterminate, allowing for a range of possible applications. Instead, Scalia limited the meaning of the Amendment to its original expected application, which he inferred from the practices of Americans living one hundred and fifty years ago.202 At other points, Scalia would shift to arguments suggesting that interpretation of the Constitution had to respect tradition as a good in itself.203
Just as importantly, Justice Scalia’s opinions invoked tradition and original understandings only intermittently, in some cases but not in others. There was no transsubstantive principle determining when Scalia would turn “originalish” and attack the Court’s doctrine, asserting that the Court should interpret the Constitution’s text in accordance with practices or expectations of the distant past—and when he would simply engage in doctrinal debates. Whether we describe Scalia as inconsistent, as selective, or simply as an interpretive pluralist, he, too, was interpreting a living Constitution, whose outlines were visible in the value-driven way he applied his method. Consider United States v. Virginia, decided a few years after Casey, in which Scalia announced that his fidelity to following the Constitution’s meaning at the time of its ratification meant that the Fourteenth Amendment contained no equal protection scrutiny for cases involving sex discrimination.204 Yet at the time of Casey and Virginia, Scalia had already argued in a passionate concurring opinion devoid of originalist reasoning that the Equal Protection Clause protected white men from affirmative action,205 and would go on—without originalist justification—to treat corporations as persons deserving of speech protections from campaign finance restrictions.206 The selectivity of Scalia’s originalist methods expressed his values.207
Properly speaking then, the debate between Justice Kennedy and Justice Scalia was not a debate between a living and a “dead” Constitution, but instead between two expressions of the living Constitution, one open about its values and the other ventriloquizing them—refusing to own the Court’s own agency in interpreting the Constitution and its responsibility for doing so.208
This decades-long debate between Justice Kennedy and Justice Scalia clarifies how Dobbs justified Roe’s overruling. Dobbs counted state laws in 1868 to produce the constitutional memory of America as an abortion-banning nation. To produce this memory, the Court’s new conservative majority changed its method of ascertaining the nation’s history and traditions to align with Scalia’s dissent in Obergefell, and to embrace a practice of interpretation reaching back to Bowers, and before that, the objections of Southerners engaged in massive resistance against Brown—restricting the meanings of the Fourteenth Amendment’s great commitments to the expectations and practices of nineteenth-century Americans.
Of course, the conservative justices do not reason in this fashion in all cases; members of the Dobbs majority only interpret the Constitution in this backward-looking way when it expresses their values.209 Tying the Constitution’s meaning to laws enacted over a hundred and fifty years ago quite predictably elevates certain forms of argument and authority over others.210 (Conservative judges now deploying Dobbs in the federal courts show they understand its history-and-tradition method is an instrument for achieving conservative ends: “Level of generality is everything in constitutional law, which is why the Court requires “a ‘careful description’ of the asserted fundamental liberty interest.” So described, no such tradition exists.”211) Had the Court reasoned about our national traditions dynamically, at a higher level of generality—and consulted a more democratically inclusive array of authorities212—the Court would have produced a very different account of the nation’s history and traditions of liberty in questions of reproduction and intimate life; these alternate accounts could support protection for decisions about reproduction and intimate life under both the Thirteenth and Fourteenth Amendments.213
In sum, Dobbs was not simply pointing to objective facts that compel a constitutional outcome but instead was choosing to employ a method that advanced the majority’s values—reaffirming the prerogative of localities to revive old carceral traditions without federal constitutional interference.214 Counting states that banned abortion in 1868 was not a neutral or disinterested measure of the Constitution’s meaning; the method expressed the interpreters’ values as it perpetuated political inequalities of the past into the future. The democracy it supported was a thin majoritarianism, democracy without rights that would protect the participation of those historically excluded from the democratic process.
Dobbs justified imposing a backward-looking method of determining the nation’s history and traditions on the grounds that it would prevent judges from imposing their political preferences and thus protect the prerogative of states to govern themselves free of federal judicial interference.215 As Dobbs repeatedly argued, overruling Roe promoted democracy.216 This conception of democracy as unfettered majoritarianism and noninterference has roots in the fight over segregation217—and is not a conception of constitutional democracy to which those claiming equal protection in Brown appealed.
This Part begins by identifying differences in these two accounts of democracy—democracy as unfettered majoritarianism and democracy as equal participation—each of which circulates in our constitutional tradition. It shows how these competing accounts of democracy are at stake in Casey and Dobbs. And then it shows why the choice matters. In equating the Fourteenth Amendment’s meaning with the practices of legislators who viewed Black people and women of all races as properly excluded from the legislative process, Dobbs defines the liberty guaranteed by the Fourteenth Amendment in terms that perpetuate these very inequalities. Dobbs embraces unfettered majoritarianism as democracy and insists that the inequalities it produces have nothing to do with the Constitution. That follows only if one defines the Constitution in terms that sanction and naturalize these original exclusions—by adopting interpretive methods that entrench the original Constitution’s democratic deficits while ignoring continuing biases in the infrastructure of representation.
Examining race and gender conflicts in the enactment and enforcement of the abortion bans that Dobbs authorized in Mississippi, we can see how the liberty and democracy Dobbs protects entrench inequalities of 1868. As Dobbs understands it, brutal acts of state coercion have nothing to do with the freedom the Constitution guarantees.218
Is democracy simple majoritarianism? What if the majority is only a minority of the population that controls the apparatus of the state, and denies the majority of adults in the community an opportunity to participate? What if those in power entrench state authority—including its monopoly on violence—to dominate and subordinate the disfranchised, arrogating to itself control over property and speech? Equating democracy with simple majoritarianism is less appealing when a minority anoints itself as the majority under these background conditions. Certain background conditions of participation are necessary to legitimate majoritarianism as democracy. Debate about those precise conditions—and the institutions that should enforce them—vitalize constitutional democracies.219
Observe that the lifeworld just described bears certain resemblances to the Founding Era when only small minorities of adults could vote.220 While our constitutional tradition reasons about democracy as unfettered majoritarianism and as a practice requiring certain conditions of participation,221 the modern constitutional order emerged as Americans began to define those conditions of participation with attention to the democratic deficits of the conditions under which the Constitution’s provisions were ratified.222 Even as courts did so, the original exclusions produced biases in the infrastructure of representation. And these biases in structures of representation in turn shape the exercise of public power in ways that continue to make it harder for some to participate in collective decision-making than others.
And so as Carolene Products Footnote Four223and John Hart Ely taught the nation, constitutional review to secure the background conditions of participation may be necessary to insure that majoritarianism serves democracy.224 What of laws that deny free speech, authorize searches without a warrant, deny the right to vote, or segregate the institutions of public life? Is majoritarianism a legitimate expression of democratic will when conducted under these background conditions? We have answered these questions differently over time. Ely’s defense of the Warren Court’s decision in Brown as “representation-reinforcing”—as promoting rather than restricting democracy—demonstrated how judicial review protecting conditions of participation could strengthen and legitimate majoritarian decision-making.225 Yet because Ely continued to reason within (then-contested) gender conventions, he failed to grasp that gender hierarchy, no less than racial segregation, can obstruct the equal participation necessary to legitimate democracy—and that families, like education, are institutions critical to that participation.226
This understanding is at the root of the equality argument the Court recognized in Casey and disparaged in Dobbs. Casey refused to reverse Roe, focusing on how women relied on the right Roe protected—”[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”227 Where Casey focused on “the real-world social conditions in which women exercise abortion rights, the Dobbs Court dismissively waved away real-world concerns about depriving women of constitutional rights as ‘speculat[ive]’ and deemed questions concerning the ‘empirical . . . effect of the abortion right on society and in particular on the lives of women’ something that the ‘Court has neither the authority nor the expertise to adjudicate.’”228
Where Casey, like Brown, vindicated democracy as equal participation, Dobbs repudiated equality grounds for the abortion right229 and embraced democracy on the model of Plessy, democracy as noninterference.230 The Court claimed that it was promoting democracy by abrogating constitutional protections for women’s decisions about bearing children; but the Court showed no interest in women’s capacity to vindicate these interests in the democratic process—in Mississippi, which enacted the ban at issue in the case, or elsewhere.
Dobbs’s silence is telling. Dobbs’s choice of exclusionary criteria to define the liberty the Constitution protects and its indifference to bias in the infrastructure of representation suggest the Supreme Court’s talk of democracy is a mere excuse to enable legislators to ban abortion.231
After trial on the abortion ban at issue in Dobbs, Judge Carlton Reeves warned about the consequences of removing constitutional guardrails from the exercise of political power in Mississippi. Without certain guardrails, democratic self-government would reproduce inequalities of political power that date to the Founding. Judge Reeves pointed out that Mississippi’s “leaders are proud to challenge Roe but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room: our alarming infant and maternal mortality rates,”232 and he traced these policy choices to the longstanding disempowerment of women and minorities in the state:
[L]egislation like H.B. 1510 is closer to the old Mississippi—the Mississippi bent on controlling women and minorities. The Mississippi that, just a few decades ago, barred women from serving on juries “so they may continue their service as mothers, wives, and homemakers.” The Mississippi that, in Fannie Lou Hamer’s reporting, sterilized six out of ten black women in Sunflower County at the local hospital—against their will. And the Mississippi that, in the early 1980s, was the last State to ratify the 19th Amendment—the authority guaranteeing women the right to vote.233
This history still shapes the political process in Mississippi. In 2023, the Mississippi state legislature was composed of 14.4% women, ranked with Tennessee as the second lowest percentage in the nation.234 And Mississippi’s reputation for obstructing the participation of minorities in the legislative process remains strong. The state has some of the strictest voting laws in the nation,235 including a lifetime felony disenfranchisement provision with roots in the era of Plessy and Jim Crow,236 when its framers openly explained their aim “to exclude the Negro.”237 (The Supreme Court declined to hear a challenge to that Mississippi law a year after deciding Dobbs, at the same time as the Court was declaring that affirmative action in education was no longer needed.238) Under the state’s restrictions on the franchise, today, sixteen percent of Black voting-age Mississippians find themselves permanently barred from voting.239
This “history and tradition” still shapes life in Mississippi, including the conflict over abortion. The conflict over legislating abortion access in Mississippi is gendered240 and intensely raced. When the state enacted a fifteen-week ban in the hopes of encouraging the Court to overrule Roe,241 both women legislators and Black legislators (and especially, Black women legislators) opposed it. Black Mississippi legislators voted against the fifteen-week ban at issue in Dobbs but were systematically outvoted by white legislators. In both the state House and state Senate, Black elected officials comprised the overwhelming majority of the resistance to H.B. 1510’s passage: of twenty-two speeches against it, twenty came from Black legislators.242By extension, white elected officials constituted the entirety of the bill’s defense: no legislator of color spoke in favor of the bill during the entirety of its consideration in the state legislature.243 But for the votes of a few white Democrats, the passage of H.B. 1510 would have been race-categorical: not a single Black legislator voted for the bill in its final passage in the state Senate244 or state House.245 Indeed, in total, only four of one hundred twenty-two white legislators voted against H.B. 1510. Only three Black representatives (of fifty-one) ever voted for the bill during any part of the process,246 and all three declined to vote for the bill in its final House session.247
In other words, there is in fact substantial opposition to banning abortion in Mississippi, aligned on the axes of race and gender, but women and minorities have been unable to shape the law. One poll in Dobbs’s wake reported that Mississippians disagreed with the Supreme Court’s decision to overturn Roe (51% oppose and 42% support)—that tally masked striking gender differences in response. Men supported the decision by 48% to 44% (+4), while Mississippi women objected to overturning Roe by 56% to 37% (-19).248
Despite the public’s response to Dobbs, the legislature allowed the state’s more draconian trigger ban249 to supplant the fifteen-week ban the Supreme Court upheld in that case. Living under this near-absolute ban in the year since Dobbs, a remarkable forty-five percent of likely voters in Mississippi’s Republican primary now support repealing the trigger ban.250
There’s a democracy problem here—and it goes beyond the inability of historically underrepresented groups to shape lawmaking in the state legislature. It appears that leadership of the Mississippi legislature is aware of emergent majority support for abortion access and determined to prevent its expression: in considering whether to reinstate the state’s initiative process, state legislators expressly prohibited questions about abortion in the proposed initiative.251 (In Dobbs’s wake, other states have sought to deny majorities supporting abortion access an opportunity to prevail in referenda, by less forthright means.252) The condition the legislature sought to impose on the referendum process shows that legislators seek to enforce the state bans despite voter opposition to them. This is not the understanding of democracy the Court invoked when it promised that overruling Roe would return the abortion question “to the people.”253
The legislature’s resistance to making the law democratically responsive cannot be explained as the simple expression of moral or religious views about abortion. As we will see, the legislature’s response reflects gender and racial disparities among legislators debating abortion and, relatedly among Mississippians seeking abortion. This becomes evident as one considers the choices about abortion and safety-net policies the legislature has made in Dobbs’s wake.
Though Black people constitute less than thirty-eight percent of the state’s population,254 Black women accounted for over seventy-seven percent of its abortion patients in 2020.255 As Professor Khiara M. Bridges has observed, Black women’s disproportionate reliance on abortion care is “a direct result of black people’s higher rates of unintended pregnancy”—a response to the conditions of poverty in which they are more likely to live, conditions characterized by less healthcare, effective contraception or resources for raising children, and greater exposure to sexual violence, reproductive coercion, and intimate partner violence.256
These background conditions—which the Mississippi legislature helped create—are the conditions in which women—and their families—make decisions about abortion. Citizens debating abortion emphasized this in the heat of the abortion debate in the Mississippi legislature and elsewhere.257 In debating the fifteen-week ban at issue in Dobbs, backers bragged the bill would make Mississippi, which has the highest infant mortality rate in the nation,258 “the safest place in the country for unborn babies,”259 even as the state’s current governor then leading its senate, blocked—as “not germane”—amendments that would have provided healthcare and childcare benefits for women subject to the ban who decide to continue a pregnancy.260 One of the amendments would have provided women who continued a pregnancy under the ban health insurance while raising the child—“the same coverage offered to Mississippi State Legislators.”261
Even after Dobbs triggered the state’s ban, the Mississippi legislature still refused to provide support to those whose choices it sought to control. It was evident that enforcing the ban in a state with Mississippi’s high maternal mortality rate and weak safety net262 would threaten the health and lives of both white and especially Black women.263 Yet the Mississippi legislature, along with many other abortion-banning states, continued to refuse to expand Medicaid, even as “[e]xpanding Medicaid would uncork a spigot of about $1.35 billion a year in federal funds to hospitals and health care providers, . . . [a]nd . . . guarantee medical coverage to some 100,000 uninsured adults”—and even as the decision forced hospitals to close in Dobbs’s wake.264 It took continuing political pressure in the year after Dobbs for the Mississippi legislature to extend postpartum coverage from two to twelve months for those enrolled in Medicaid.265
This course of legislative decision-making in Mississippi makes plain the thin sense in which the Supreme Court’s decision to reverse Roe promotes democracy. The Court’s decision to abrogate the abortion right has allowed those with power to exercise it against those without the capacity to vindicate their interests in the legislative process.
In the year since Dobbs, the Mississippi legislature has implemented what amounts to a total ban on abortion, even as bills “to strengthen the social safety net, fund child care for low-income parents and increase access to resources like contraceptives have all died before lawmakers had a chance to vote on them.”266 (“The states that have rushed to criminalize abortion in the wake of Dobbs are the states least likely to have pursued any of these other means of protecting potential life.”267) Mississippi legislators instead are “looking to crisis pregnancy centers as the primary support system for women facing an unplanned pregnancy.”268 The Mississippi legislature makes these choices knowing that “Mississippi ranks worst or near-worst in infant and maternal mortality, poverty, hunger, access to health care and child care.”269 It is willing to use the criminal law to coerce birth, but systematically resists providing resources to support its citizens’ health and life.
This combination of choices cannot be explained as the simple outworking of moral or religious belief about protecting life. Instead, inequality begets more inequality: the disempowerment of Black people and women shapes the law which, in turn, entrenches their continuing disempowerment.
Stories about abortion policy offer a window into the democratic process, illustrating how the infrastructure of representation perpetuates the nation’s history and traditions of inequality. Generations after enfranchisement, groups that were deemed unfit to vote on the Fourteenth Amendment’s ratification are still struggling to make their voices heard in the political process. This is as true after Dobbs as it was before Roe.
In the wake of Dobbs, lawmakers in Mississippi held a hearing to consider policies the state might adopt in response to its abysmal health rankings. Black women walked out and held a press conference entitled “We Are the Data” to draw attention to the fact that “Black women and babies experience a disproportionate share of the state’s highest-in-the-nation rates of stillbirth, low birth weight, and infant mortality”270—and to “complain about a lack of Black women on the Senate committee—only one of the nine members—and among [the legislative hearing’s] presenters.”271 “What we’re asking for here is just a right to life,” one of their organizers emphasized.272
The scene echoed another over a half-century earlier. In 1969, the New York legislature held hearings on reforming its abortion law in which the experts called to testify included fourteen men and one nun, prompting women to walk out and hold the first abortion speak-out in a church in Greenwich Village.273 They emphasized the myriad harms that abortion bans inflicted on women, but especially on poor women and women of color.274 These speak-outs not only shaped the movement’s organizing but its arguments in court where women turned as they struggled to make themselves heard in a constitutional order in which they had long been marginalized.275
Claimants in the modern substantive due process cases “turned to the courts in part because they faced forms of subordination and stigma that silenced them and impeded their democratic participation . . . . [They faced] the kind of deliberative blockages at issue in equal protection cases like Brown—cases understood to be paradigmatic exercises of judicial review within the Carolene Products framework.”276
The Supreme Court in Roe and then in Casey responded, in the spirit of Brown, to the ways that inequalities impeded women’s participation.277 But Dobbs responded in the spirit of Plessy. Before overturning the abortion right, Justice Alito reached out in dicta to assert that the Court was powerless to consider women’s equality—taunting, before he rejected a half-century of abortion-rights precedent, that the question of whether state coercion of pregnancy presented questions of equal protection was “squarely foreclosed by [the Court’s] precedents.”278
Nor did Dobbs view women’s reliance on the abortion right in making decisions about their bodies and lives as implicating a liberty of constitutional consequence. Dobbs disparaged women’s dignitary, health, emotional, economic, and social interests in a right to control decisions about childbearing—that federal courts had protected for a half-century—as “novel and intangible,” taunting that federal courts were institutions better suited to protect “concrete reliance interests . . . in ‘cases involving property and contract rights.”‘279
In unleashing abortion bans on women and authorizing coercion deemed unconstitutional for a half-century, Dobbs declared that questions concerning the “empirical . . . effect of the abortion right on society and in particular on the lives of women” were something that the “Court has neither the authority nor the expertise to adjudicate.”280 One can hear echoes of segregation’s defenders dismissing Black Americans’ claims for equality as mere “sociology,”281 not law.
The voice of Plessy speaks through Dobbs when the Court declares that the Constitution is indifferent and impotent to intervene.282 It is blasphemous that Dobbs claimed the authority of Brown to enforce the Constitution as Plessy’s defenders did. We test our Constitution’s character, on this first anniversary of Dobbs and seventieth anniversary of Brown, in calling for Dobbs to meet Plessy’s fate.
Nicholas deB. Katzenbach Professor of Law, Yale University. For comments on the draft, I thank Khiara Bridges, Nancy Cott, Cary Franklin, Justin Driver, Owen Fiss, Sherif Girgis, David Golove, Duncan Hosie, Vicki Jackson, Douglas NeJaime, Serena Mayeri, Melissa Murray, Robert Post, Noah Rosenblum, Kate Shaw, Aaron Tang, Jennifer Tucker, and participants in the N.Y.U. Law School Legal History Colloquium and Yale Law School Faculty Workshop. For extraordinary research assistance, I thank Remington Hill, Donovan Bendana, Gregory Briker, Emma LeBlanc, Inbar Pe’er, and Ben Roebuck. For the creation and incisive editing of this Collection, I thank the editors of the Yale Law Journal, especially Alex Johnson.
On Brown’s seventieth anniversary, I dedicate this Essay to Judge Spottswood Robinson, III, for whom I was privileged to clerk. The Judge believed fidelity to the rule of law is transformative and demonstrated it in his work in Briggs v. Elliot, 98 F. Supp. 529 (E.D.S.C. 1951), and the cases consolidated in Brown, and on the bench, where he drew on these understandings in decisions that built modern sex discrimination law, including Barnes v. Costle, 561 F.983 (D.C. Cir. 1977), the first case recognizing that sexual harassment is discrimination on the basis of sex under the 1964 Civil Rights Act, and Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C. Cir. 1981), the first case recognizing a disparate impact claim of pregnancy discrimination under that statute, anticipating the frontiers of equality law today. This Essay shares with the rising generation of law students understandings of law I learned through the Judge’s stories of the civil rights movement.