As always, you can find the Dobbs v. Jackson decision here.
Paragraph 4 of 5
Sentence 3 of 7
There are two claims in this sentence:
“Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side.”
The claims:
- “Casey described itself as calling both sides of the national controversy to resolve their debate.”
- “[I]n doing so, Casey necessarily declared a winning side.”
The first claim is phrased strangely. I can wrestle meaning out of the phrase “described itself as calling both sides [. . .] to resolve their debate,” but there has to be a way to express that idea more directly, or at least with a citation for the reference.
Here’s Casey beginning on page 866, in one of the passages the Dobbs authors might be thinking of:
“In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.
“That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
This claim is true (awkward phrasing aside), and the second claim’s phrasing is even more awkward:
- “[I]n doing so, Casey necessarily declared a winning side.”
To what is “in doing so” referring? The phrase “Casey described itself?” That’s the only reasonable connection to the previous clause in this sentence. I’ll assume for the sake of trying to make sense of this jumble that they mean that deciding on this issue “declared a winning side.” Sure. That’s kind of what decisions do. But deciding the case legally and resolving the debate culturally are two different things. I’m going to keep this claim undetermined for now, since it’s pretty weird.
So that leaves one true claim:
- “Casey described itself as calling both sides of the national controversy to resolve their debate.”
and one undetermined claim:
- “[I]n doing so, Casey necessarily declared a winning side.”
