As always, you can find the Dobbs v. Jackson decision here.

Earlier this week I was listening to Dahlia Lithwick’s Amicus podcast, and her guest was Ben Johnson, who has written about the Judiciary Act of 1925 and its corrosive effect on the integrity of the Court as a legitimate, authoritative judicial body.

I was only half-listening, but I thought I heard Johnson say that the 1925 act determined that the Supreme Court had no obligation to examine whether specific facts in a given case are true in order to rule on the case. I need to listen more closely to identify the segment of the podcast to make sure I heard that correctly (my attempt to use a transcription program so I could pick it out of the text failed miserably, so I’m back to paying attention with my ears, which isn’t my strong suit), but I have read a little more about the Judiciary Act, including Johnson’s Columbia Law Review essay entitled “The Origins of Supreme Court Question Selection.”*

It may be even worse than I thought. Not only is SCOTUS not obligated to ensure that the information that supports the claims in the case is true—the Court is not obligated to ensure that the claims in the case are true. This is in addition to Johnson’s main point—that ruling on a question prompted by the case rather than on the case, and a question the Court can determine for itself, renders the Court a legislative body rather than a judicial one.

So my concerns about the history and tradition of the claims within the case in which the Court is fixated on the history and tradition of the law might be entirely irrelevant to the Court, which is troubling. And that this is standard accepted practice should (and I really hate using that word) bother everybody inside and outside the legal profession.

The dissenters have accused the majority of cherry-picking bits of history and tradition, here on page 17:

“The majority wishes people to think there are but two alternatives: (1) accept the original applications of the Fourteenth Amendment and no others, or (2) surrender to judges’ ‘own ardent views,’ ungrounded in law, about the ‘liberty that Americans should enjoy.’ Ante, at 14. At least, that idea is what the majority sometimes tries to convey. At other times, the majority (or, rather, most of it) tries to assure the public that it has no designs on rights (for example, to contraception) that arose only in the back half of the 20th century—in other words, that it is happy to pick and choose, in accord with individual preferences. See ante, at 32, 66, 71–72; ante, at 10 (Kavanaugh, J., concurring); but see ante, at 3 (Thomas, J., concurring).

But cherry-picking seems to be standard operating procedure for the Court since at least 1925, and maybe since 1891. If that’s the case, then it seems the dissent is cherry-picking what kinds of cherry-picking are problematic within a system predicated on cherry-picking.

It’s all very confusing.

Here’s another article that discusses the Judiciary Act of 1925 by Jonathan Sternberg.

*I know how to have a good time on a Saturday.