Relitigating Dobbs in a Conservative Court: The Potential Road from Justice Thomas and Natural Law

By James C. Ashley

James C. Ashley is a summa cum laude graduate of Albany Law School, class of 2023. He graduated with a bachelor’s degree in Spanish Linguistics from SUNY Albany, also summa cum laude.

At Albany Law School, James was an Executive Editor for Notes and Comments on the Albany Law Review, a Sponsler Fellow in Civil Procedure, and a Teaching Assistant in Lawyering. He was the winner of the 2022 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. James interned with the New York State Division of Human Rights, as well as with Cahill Gordon & Reindel LLP, where he will begin his career after the bar exam.

As early as 1991, reporters predicted that if selected for the Supreme Court, a Justice Clarence Thomas would one day vote to overturn Roe v. Wade.

At his confirmation hearing, he was questioned about his prior embrace of the doctrine of natural law—the belief in the existence of a higher law that can be discovered by human reason—to draw out his views on abortion. Thirty years later, the Supreme Court held, in Dobbs v. Jackson Women’s Health Organization, that the Federal Constitution does not provide protection for a woman’s right to have an abortion, with Justice Thomas voting to overturn Roe as predicted. He concurred separately, but with no explicit references to the natural law doctrine.

This paper examines Justice Thomas’s opinions on abortion for either implicit or explicit references to natural law. Then, it weighs the feasibility of several novel arguments that could be used to relitigate Dobbs before a conservative Court.

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To read the paper, open HERE.

Legal Interpretivism and Dworkin’s Distinction

Appropriating Natural Law Theory and Legal Positivism

By Christopher A. Saco
Chris Saco, a December 2014 graduate of Albany Law School, did his undergraduate work at the College of the Holy Cross. He obtained his bachelor’s degree in 2012 as a double major in economics and philosophy. Additionally, Chris’ capstone paper in phenomenology dealt with the intricate complexities of epistemology and moral agency.
It was his interest in morality that led Chris to attend Albany Law. He was accepted into the accelerated program and earned his J.D. in 2 ½ years. While in law school, Chris pioneered the new academic consortium and studied Invention, Innovation, and Entrepreneurship at Rensselaer Polytechnic Institute’s Lally School of Management and Technology.
Chris has taken and passed the New Jersey bar exam and is now a member of that state's bar.

There exist a variety of intersections between the law and philosophical discourse, and one of the most prominent junctures of these two fields occurs in the study of Judicial Process. Legal scholars and philosophers alike have arrived at different understandings of the judiciary’s indispensable role in establishing a principled society. Their knowledgeable decisions and publications frequently incorporated not only the black letter law, but also gave credence to humanity, morality, culture, and philosophy.

Undoubtedly, the law is a vital component within the institution of a functioning democracy, the chief reason being that an insufficiency of either democracy or law would lead to the inadequacy of the other. Furthermore, the history of civilization teaches us that a society with an established legal system often seeks to articulate the underlying reason for requiring these laws.

The question for legal philosophers such as Ronald Dworkin then becomes a matter of asking whether the reason for the law’s necessity is ingrained in morality or society. The principle focus of this paper will discuss how Dworkin integrates morality both into the choice of legal theory and into the legal argument itself.  In particular, this paper will explore Dworkin’s theory of Legal Interpretivism and how it appropriates the prior concepts of Natural Law Theory and Legal Positivism.
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To read the paper, open HERE.
(The power point presentation will be posted shortly.)