Conservative jurisprudence has been casting about for over 40 years, trying to find an anchoring ground or even a stable definition of “originalism.” But with the advent of Justice Brett Kavanaugh to the Supreme Court and the decision in Dobbs v. Jackson Women’s Health Organization (2022), overruling Roe v. Wade (1973), the tagline for conservative jurisprudence might now be, “Conservative Jurisprudence: Seeking Justice by Changing the Subject.” And the mission statement: “We carefully, and steadily, steer around those questions of moral substance that stand at the heart of our gravest cases.”
In the Dobbs case, Kavanaugh took his bearings by noting that the country was deeply divided on this contentious matter. One notable sign, he said, was that “many pro-life advocates forcefully argue that a fetus is a human life”—”forcefully argue,” as though there is no long-settled, empirical truth on this matter, found in all of the textbooks of embryology, as though there never could be a truth of the matter. In other words, in this mode of conservative jurisprudence, the judges must affect not to know the plainest objective truth that bears on the practical judgment here.

