Dobbs v. Brown

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court had the country’s undivided attention. In Brown, the Court took the opportunity to write a short, readable opinion (just 13 pages in the U.S. Reports) that explained its reasoning in a manner any literate American could understand. The Brown opinion can be summed up in a short 24-word quote: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. By contrast, Dobbs is a mess. The slip opinion in Dobbs clocks in at an unimaginable 213 pages and has 5 separate opinions, a majority, a dissent, 3 concurrences, and 3 appendices. Its appendices are three times as long as the entire Brown opinion. Nor does the case do a great job of explaining in plain terms the disagreement between the majority, Justice Roberts’s concurrence, and the dissent. It certainly does not fail due to brevity. It fails because the central argument of the role of originalism in constitutional analysis is buried amongst pages and pages of argument about the history of the reconstruction amendments, abortion, and the nature of precedent and stare decisis. Dobbs is a massive, missed opportunity for the Court and the country.