With the anniversary of the Dobbs Supreme Court decision comes reflection from both sides of the aisle. The decision by the Court to democratize abortion politics has faced a flurry of assaults from the Left, and the justices who ruled in the Dobbs majority have faced unrelenting attacks on a number of fronts. Politico has joined the fray, conjuring up an entirely new label to hurl at the conservative justices.
In a magazine essay published over the weekend, Robert Tsai and Mary Ziegler have decided that SCOTUS’s recognition that the Constitution does not say whatever they want it to say is indicative of something particularly bad. These justices belong to a category that the writers call “movement judges,” a group of people they distinguish from normal or partisan judges for conspiratorial reasons. As they put it:
A movement judge is less likely to defer to experts than a technocratic one and more likely to think of issues in terms of values. A preservationist tries to work with existing precedent as much as possible and cares about how the institution is perceived. By contrast, a movement judge is focused on what a mobilized subset of people want and is willing to overturn precedent to get there.
Nowhere in the piece do these professors actually address the constitutional questions of Roe v. Wade. Nor do they stop to consider just how radical the Roe decision actually was in terms of legal precedent.
Rather than take seriously the legal arguments put forth by the originalist judges, they laugh off originalism as nothing more than a construct of conservative law professors that “might pass for a legitimate judicial approach rather than just window dressing for conservative outcomes.”
If you thought all law professors would take theories of the law seriously, you’d be mistaken.