By: John V. Orth* and Paul T. Babie**
Published: December 28, 2022
Abstract
This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, what happens next cannot be predicted at the outset. This ongoing quest, though, comes with a cost: certainty. Adding to a story might be a good literary device to keep a listener or reader interested, but it is of little use in a system that at least pays lip service to stare decisis and the rule of law.
*William Rand Kenan Jr. Professor of Law Emeritus, UNC School of Law, The University of North Carolina at Chapel Hill.
**Bonython Chair in Law and Professor of Law, Adelaide Law School, The University of Adelaide.
Suggested Citation: John V. Orth & Paul T. Babie, Not Child’s Play: A Constitutional Game of Pass the Story in Dobbs, Shurtleff, and Kennedy, 127 Penn St. L. Rev. Penn Statim 50 (2022).