Dobbs is Different: Evaluating the Dobbs Decision's Lack of Strategy Compared to Landmark Sexual Privacy Cases
Evidence shows that the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was controversial and contributed to the Court’s weakening legitimacy in the eyes of the American public. To better understand how Dobbs was truly different from other sexual privacy cases, we can look at how other landmark sexual privacy cases were decided, primarily the context of the decisions but also the decision itself. To evaluate decisions in a more organized manner, scholars of Court decision-making often turn to “models” that propose general suggestions on what the Court’s justices are primarily considering as they make their decision. I posit that the narrow and integrative strategic models, as advanced by Epstein and Knight, are a satisfactory way of explaining the landmark sexual privacy cases before Dobbs, namely Roe v. Wade (1973), Bowers v. Hardwick (1986), and Lawrence v. Texas (2003). After a thorough examination of the literature and outline of the strategic models, I will evaluate each case to identify how the decision was made strategically. I will then examine the context of the Dobbs decision and text of the majority opinion to highlight how in contrast to prior cases, Dobbs cannot be explained by the strategic models. Specifically, I will show that the Dobbs decision showed little to no consideration of the other branches of government, the Court’s legitimacy in the eyes of the public, and for the majority public opinion on abortion. This is a significant finding because it illustrates how the prevailing methods of analyzing and understanding the Court’s decisions might be inadequate for the current Court, since the models suggest the context of the Dobbs decision would lead to a decision contrary to the one the Court made.
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