Masking Radicalism With Restraint: The Rhetorical Redefinition of Conservative Jurisprudence in Dobbs v. Jackson Women’s Health Organization

Abstract

Originalists urge courts to exercise judicial restraint over activism when deciding cases. Despite judicial restraint’s association with conservative philosophy, the Supreme Court majority rejected long-established precedent in the Dobbs decision, overturning Roe v. Wade. In this essay, I argue that the Court rationalized its rejection of stare decisis using a rhetoric of originalist mythic rationalization, a technique allowing conservative justices to redefine the law by rationalizing their radical action as judicial modesty.