I would say that the judicial overreach and historical revisionism of Roe is a sign of bad jurisprudence. As John Finnis and others have shown in some detail, Roe's portrait of the historical status of abortion in American law and English common law was deeply flawed. Given that historical considerations become central when attempting to draw implicit and uncertain rights from the Constitution, this is a devastating error (which yes, evinces bias).GE Morton wrote: ↑June 25th, 2022, 8:50 pmNeither Roe nor Dobbs is "good jurisprudence."Leontiskos wrote: ↑June 25th, 2022, 10:45 am The Court is not a legislative body, and that is why it should not be packed, why appointments should not be seen in an overtly political light, etc. Roe was an example of terrible jurisprudence, and legal scholars from every corner of the political spectrum know it. Not even progressives have been willing to defend Roe qua internal reasoning, only qua stare decisis. If Roe was the decision of a lower court it would have no influence, for its internal reasoning is deeply and uncontroversially flawed. Whether or not one is pro-life or pro-choice, Dobbs must be seen as good jurisprudence once the proper role of the Court as an interpretive body is understood.
But hasn't the general literature also moved away from personhood, it being an unfruitful rabbit hole for both sides? And isn't it true that when the Constitution is unclear and the case is "inherently difficult," courts really should avoid legislating issues from the bench? If we presuppose some form of originalism then objectively speaking there is more historical evidence that the Constitution protects the unborn's right to life than the woman's right to an abortion, in which case it is remarkable that the Court managed to find a right to abortion. That is, if the Court felt that they had to choose a side then on originalism the uncontroversial winner would be the unborn. The only way around this fact would be to enunciate a clear and robust alternative to originalism.GE Morton wrote: ↑June 25th, 2022, 8:50 pmThe dissenters in Roe, and the majority in Dobbs, on the other hand, prefer to ignore the entire issue of personhood. Their basic position is that when the Constitution is not clear on some point, then the question must be left to the States to answer, not the federal courts.
I ought to re-read Roe, but it really does seem that Blackmun's preconceived bias carried the day once he showed that the strongest possible textual objections to his position did not exist. For example, to consider whether the Constitution clearly affirms the unborn as persons, find that it doesn't, and then fall back into the position you initially assumed was correct is a form the fallacy in which one falsely claims that a disjunction is exhaustive. "I think women have a right to abort, but if the Constitution firmly counts the unborn as persons then they do not have such a right. The Constitution does no such thing; therefore they do have the right." Contrariwise, the unbiased approach would take a nuanced look at the historical standing of the unborn and the historical approach to abortion while considering a much larger number of disjuncts. Blackmun addressed a few possible, strong objections, after which he resorted to reasoning that, in your words, could only be tied to the Constitution in ways that were "spurious and fatuous."