Abstract

The Roberts Court is giving the nation a bad case of constitutional whiplash. Law that was once thought etched in stone is being erased and replaced, with gleeful regularity. Movement conservatives are cheering the rollback of race and gender precedents. Movement liberals are shuddering at every toppled landmark. Meanwhile, lay Americans are starting to wonder when they ceded control over the fabric of their social lives to an elite legal apparatus that cannot be trusted to steer in a straight line. This Article considers whether the Court’s destabilization of the nation’s individual rights architecture might prompt a redistribution of democratic power from the top of the political pyramid to the bottom. It opens by deconstructing the erosion of stare decisis norms in the Roberts Court and documenting the resulting precarity of race, gender, and religious dignity claims under the new “commoveo decisis” regime. From there, it takes a holistic view of democracy and suggests the social meaning of individual dignity does not belong to an apex Court dealing in “lawtalk,” but to ordinary Americans engaged in “everyday talk.” It demonstrates how lawtalk shuts down deliberative democracy by tracing the decline of everyday abortion talk in the decades following Roe, and its immediate revival in the wake of Dobbs. This torrent of intimate, nonlinear conversation and the early success of abortion rights initiatives at local ballot boxes, illustrate how chaos at the Court might wind up devolving democratic power back to ordinary Americans who are surprisingly good at deliberating across difference. 

ISSN

2693-1206

Disciplines

Law

Download

Included in

Law Commons

Share

COinS