Forget Alito. It was John Hart Ely’s work that really underpins Dobbs.
Dobbsthe possibility of a “privacy” right but countenances it only so long as it is attached to either the First or Fourth Amendment. He states, as though in shock, thatfound abortion rights “to spring from no fewer than five different constitutional provisions.” One might take the fact thatrelied on multiple constitutional provisions as proof of its overdetermination. But instead, Alito and Ely hold out the presence of inter-provision interpretation as evidence of intellectual weakness.
This expansion of rights prompted criticisms—parts of which Ely later marshaled in his arguments against. Some of these criticisms were in good faith; others, less so. What united those that rose to prominence—something a young Ely no doubt observed—was how they anchored their authority in the aspiration to neutrality. In 1954, in, the court had invalidated legislation in order to demand that states desegregate.
Yet by the early 1970s, criticism of the new jurisprudence had failed to gain serious traction—not only with respect to racial equality, but also when it came to privacy rights. Leading up to, the famous textualist Justice Hugo Black critiqued the justification for privacy rights used in. Lodging 1 of 2 dissents in that case, Black essentially argued that, because the word “privacy” is not in the Constitution, judges could not infer its existence as a right.
. Wechsler’s “neutrality critique” of desegregation, in the meantime, had been put to rest by Charles Black’s 1971 foreword aboutin the Harvard Law Review, which pointed out that legal fiction—that “separate” could ever mean “equal”—could not trump legal reality. In the end, it was none other than Robert Bork, the conservative legal scholar who would go on to be rejected, famously, as a candidate for the Supreme Court, who laid the groundwork for Ely’s early writing on“Neutral Principles and Some First Amendment Problems,” written in a fit of animus against what he saw as the excesses of sexual liberation, repurposed Black’s textualism and rehabilitated Wechsler’s neutrality.
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