Susan Tanner (University of Louisville – Louis D. Brandeis School of Law) has posted The Rhetoric of Neutrality and the Reality of Disparity: Unmasking Judicial Opinions in the Wake of Dobbs, forthcoming in the Harvard Law & Policy Review, Volume 20, Issue 1, on SSRN. Here is the abstract:
This Article examines how the Supreme Court’s rhetoric in Dobbs v. Jackson Women’s Health Organization masks profound disparate impacts through ostensibly neutral legal reasoning. Through analysis of the enthymemes—arguments with unstated premises—in Dobbs, I demonstrate how the Court’s opinion naturalizes controversial value judgments while presenting them as objective legal principles. The Article identifies four key enthymematic structures: the historical rights enthymeme, the categorical choice enthymeme, the stare decisis enthymeme, and the public controversy enthymeme. These rhetorical devices allow the Court to present the elimination of abortion rights as the natural outcome of neutral legal analysis rather than a significant shift in constitutional interpretation. I argue that this masked reasoning has particularly severe consequences for women from marginalized communities. The Article proposes strategies for rhetorical resistance, including exposing unstated premises, centering affected communities in legal discourse, and developing alternative narratives that highlight abortion’s intersection with economic and racial justice.
Recommended.
Lawrence Solum