The subjective originalism of SCOTUS's conservative majority

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The subjective originalism of SCOTUS’s conservative majority
The reasoning cited by Justices Alito and Kavanaugh in Dobbs didn't work with birthright citizenship

By David Coale
Published July 6, 2026 9:00AM (EDT)


(Salon) In 2022, the Supreme Court‘s conservative majority held in Dobbs v. Jackson Women’s Health Organization that the meaning of the 14th Amendment is framed by the law in 1868, when the amendment was ratified.

But on June 30, in Trump v. Barbara — the ruling that narrowly affirmed birthright citizenship — two conservative justices took notably different views about the 14th Amendment and its relationship to other laws of the time. Those contrasts show the subjectivity that surrounds the allegedly objective concept of “originalism” in constitutional interpretation.

In Dobbs, Justice Samuel Alito’s majority opinion asked whether the right to abortion is “deeply rooted in this Nation’s history and tradition” and is “implicit in the concept of ordered liberty.” He answered that question by studying state abortion statutes as of 1868, noting that “by the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy.”

....(snip)....

Both Dobbs and Barbara involve the same amendment, ratified by the same actors. But in Barbara, Kavanaugh was willing to consider evidence about modern air travel when interpreting that amendment. In Dobbs, he was not willing to consider modern knowledge about women’s health. ..................(more)

https://www.salon.com/2026/07/06/the-subjective-originalism-of-scotuss-conservative-majority/