The Puzzle of Roe v. Wade (Mary Zeigler, June 14, 2024, Yale University Press)

This interest in Roe is even more puzzling given the scholarly criticism the decision has received. Almost from the start, commentators across the ideological spectrum have questioned the opinion’s reasoning, which did not draw on constitutional text, history, or other conventional sources of interpretation. Ruth Bader Ginsburg, who would become the Supreme Court’s most vocal defender of abortion rights, often argued that Roe went too far too fast and undermined the prochoice movement’s earlier progress. Feminists like Catharine MacKinnon described it as paternalistic and unconvincing. Originalists, starting with Robert Bork, have found it little short of horrifying. It is surprising that we care so much about a decision that is criticized by so many.

The interest is a function of the fact that it was an exercise in power politics, not jurisprudence.