Mystical Authority, Law, and Justice in Dobbs: Tribe’s Critique Meets Derrida’s Philosophy
- Eric Anders
- Mar 13
- 26 min read
Updated: Mar 13
Introduction
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022)—which overturned Roe v. Wade and eliminated the federal constitutional right to abortion—has been widely excoriated by legal scholars for its reasoning and its implications. Among its most forceful critics is Laurence H. Tribe, who condemns Dobbs as a jurisprudential failure that unleashes “chaos and cruelty” by stripping away a half-century of reproductive rights and undermining the “equal citizenship” of women (Deconstructing Dobbs, The New York Review of Books).
Whether or not one sees the Supreme Court’s Dobbs decision as barely concealed theocracy, it fails to provide any coherent legal analysis of why the right to abortion is not protected by the Fourteenth Amendment. (emphasis mine)
In Deconstructing Dobbs, Tribe offers a scathing critique of the Supreme Court’s ruling, exposing its lack of coherent legal reasoning and its reliance on an impoverished historical narrative. He employs the term “deconstructing” in a more colloquial sense—dissecting the opinion’s logical failures, contradictions, and implications for substantive due process. However, I intend to take this critique further by engaging deconstruction in its rigorous Derridean sense, focusing on how the decision operates through what Derrida calls the “mystical foundation of authority.”
It was later republished in Deconstruction and the Possibility of Justice (1992), edited by Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson, which remains a key reference for Derrida’s legal thought.
Far from simply returning abortion law to the states, as Justice Alito and his conservative colleagues claim, Dobbs enshrines an ideological framework that barely conceals its theocratic underpinnings. The decision’s appeal to “deeply rooted” traditions functions not as a neutral legal criterion but as a self-authorizing gesture—an assertion of judicial will clothed in the illusion of historical inevitability. As Derrida teaches, law’s authority is always based on an ungrounded performative, a leap of faith that must obscure its own contingency. In Dobbs, this mystification serves a particularly reactionary purpose: it presents the denial of reproductive rights not as a deliberate choice by the Court’s conservative majority, but as an inescapable conclusion dictated by history itself.
Yet, as Tribe demonstrates, Dobbs is not just bad law—it is embarrassingly bad law. Its reliance on a narrow and selective reading of history ignores the very principles of constitutional interpretation that have underpinned other fundamental rights. Alito’s opinion, which reduces substantive due process to an arbitrary test of historical precedent, is not only a betrayal of judicial integrity but an affront to intellectual honesty. If, as Derrida suggests, justice is always to come, then Dobbs represents the opposite: an attempt to foreclose the future, to fix the meaning of rights in a past that never existed.
In what follows, I will show how Dobbs deploys the very mechanisms Derrida critiques—mystical authority, self-legitimizing performativity, and an erasure of its own violent foundations—to construct a decision that is, at its core, an act of ideological imposition. But beyond that, I will argue that, even on its own terms, Dobbs is an incoherent and shameful ruling, one that should leave Alito and his fellow justices with something far deeper than mere “embarrassment”: the burden of having twisted the law in service of a barely concealed theocratic agenda.
At the same time, the ruling can be analyzed through the lens of Jacques Derrida’s legal philosophy, particularly his essay Force of Law: The ‘Mystical Foundation of Authority’. Derrida’s insights into the nature of law, justice, and authority provide a deeper understanding of Dobbs beyond conventional legal critique. This essay will balance Tribe’s pointed analysis of the Dobbs majority opinion (and the leaked draft that preceded it) with a Derridean critique, examining how Dobbs relies on what Derrida would call a “mystical foundation” of legal authority rather than a coherent argument. It will explore how the decision invokes “law” (droit) while simultaneously undermining justice, how its reasoning is riddled with performative contradictions and traces of meaning (différance) that expose its incoherence, and how its selective historical narrative functions as an authoritarian gesture rather than a principled interpretation of constitutional rights.
Furthermore, this essay will analyze the mysticism and sexism embedded in Dobbs, illustrating how the ruling constructs a paternalistic legal framework that erases individual agency. Extending Tribe’s assessment of Dobbs as a legal failure, I will argue—through Derrida’s deconstructive lens—that the decision lacks intellectual rigor and would not withstand serious scholarly scrutiny. Finally, drawing on Derrida’s works The Other Heading, The Beast and the Sovereign, and Rogues, the discussion will demonstrate how Dobbs exemplifies exclusionary legal sovereignty and the internal contradictions of democracy itself. The analysis proceeds in structured sections, beginning with the mystique of Dobbs’ authority and concluding with its implications for law, democracy, and the future of constitutional interpretation.
The Mystical Foundation of Dobbs’ Legal Authority
One of Derrida’s central contentions in “Force of Law” is that legal authority rests on a certain mystique or force beyond rational justification – what he (quoting Montaigne) calls the “mystical foundation of [the law’s] authority” (Scanned using Book ScanCenter 7131). We obey laws, Montaigne observed, “not because they are just, but because they are laws,” and Derrida highlights this to distinguish law from justice (Scanned using Book ScanCenter 7131) (Scanned using Book ScanCenter 7131). In the case of Dobbs, the majority’s reasoning illustrates this mystical foundation all too well. As Tribe notes, Dobbs contains “no coherent legal analysis – or anything that deserves to be called ‘analysis’ at all” to justify why the Constitution suddenly does not protect a woman’s right to avoid forced pregnancy (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). Instead, Justice Samuel Alito’s opinion operates as a raw assertion of judicial power. The Court simply declares that Roe was “egregiously wrong” and that abortion rights are not “deeply rooted” in history, offering little beyond its own authority to make it so. Tribe bluntly summarizes the result: “Put simply, Dobbs is a fiat issued by five justices simply ‘because they could.’” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) In other words, the decision rests on the fact of the majority’s power rather than the persuasiveness of its logic. This exemplifies the mystical or brute foundation of legal authority: Dobbs must be obeyed because it is now the law, not because it demonstrated superior reasoning or justice.
Derrida’s notion of the “coup de force” in founding a law is useful here. He argues that every legal founding is an act of force that cannot be fully justified by prior law or reason (Scanned using Book ScanCenter 7131). The Dobbs ruling – especially as its leaked draft revealed its intentions – comes off as exactly such a coup de force. It overturned a half-century of jurisprudence and rights by the stroke of judicial pen, with an air of infallibility rather than persuasion. The majority opinion projects absolute authority, relying on a selective historical narrative as a cloak of legitimacy, but ultimately it boils down to the majority’s will. Tribe and others observed that nothing in constitutional text or structure compelled Dobbs’ result; only the changed composition of the Court and the ideological “proclivities of individuals” (as the dissent put it) can explain this abrupt reversal (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). In Derridean terms, the Court asserted a new foundation for constitutional law through interpretive violence – a decision justified by nothing outside itself. This “masked power” (Scanned using Book ScanCenter 7131) is precisely the mystical authority that Derrida warns undergirds the law. Whether one views Dobbs as “barely concealed theocracy” or not, it undeniably “fails to provide any clear secular support” for its sweeping change of law (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). The absence of a rational foundation leaves only mystique: Dobbs commands authority because the Court declares it so. Thus, the ruling’s legal force stems from the very phenomenon Derrida describes – the mystification of authority in the guise of law.
Law vs. Justice: Restoring Stability or Destabilizing Rights?
In “Force of Law,” Derrida draws a critical distinction between law (droit) and justice. Law, as a system of rules, is deconstructible and contingent, whereas justice is an infinite ethical aspiration that no legal system can fully embody (Scanned using Book ScanCenter 7131). Applying this lens to Dobbs reveals a stark contrast between the law it claims to uphold and the justice it withholds. The majority presents Dobbs as a restoration of legal correctness and stability – returning the abortion question to “the people’s elected representatives” and aligning constitutional interpretation with this nation’s historical traditions. In Alito’s view (echoed by many opponents of Roe), the prior regime was an unstable usurpation, and Dobbs simply brings the law back in line with its proper foundations. Superficially, this framing casts the decision as a triumph of law (in the narrow sense of adhering to text, history, and tradition). But the substance of Dobbs actively destabilizes established rights and undermines what many would call justice.
Laurence Tribe underscores how disingenuous the Court’s promise of “stability” is. Far from settling anything, Dobbs unleashed legal and social chaos: a “patchwork” of state bans, uncertain exceptions, interstate conflicts, surveillance of pregnant women, and even nightmarish scenarios like a 10-year-old rape victim forced to travel across state lines to escape “compelled motherhood” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). By upending Roe, the Court did not restore a neutral baseline; it created an earthquake in the lives of millions. In Derridean terms, Dobbs demonstrates how rigid adherence to law as such can produce profound injustice. The decision elevates an abstract principle (historical tradition as the measure of rights) over the lived reality of women’s liberty and equality. The majority’s droit – their legal rule – is that abortion rights don’t count unless historically recognized. The justice of the matter – the harm to women’s bodily autonomy and equal status – is dismissed as irrelevant to their judicial role. Derrida reminds us that “laws are not just as laws” (Scanned using Book ScanCenter 7131), and Dobbs exemplifies this: the fact that the ruling follows the form of law does not make its outcome just.
Indeed, Dobbs illustrates how law and justice can be at odds. The opinion insists it is leaving the issue to democratic processes, implying a kind of procedural justice or fairness. But Derrida, in works like Rogues, would point out the paradoxes at play. Democracy itself contains internal contradictions, especially when it comes to protecting minorities or fundamental rights. As Derrida observes, “democracy and sovereignty are at the same time, but also by turns, inseparable and in contradiction with one another” ( Jacques Derrida (Stanford Encyclopedia of Philosophy) ). The Dobbs Court invokes the sovereignty of “the people” (through their legislators) to decide abortion policy, yet in doing so it strips away a counter-majoritarian protection that safeguarded individual freedom. This reveals a democratic contradiction: the Court empowers state majorities to intrude on a personal liberty, thereby undermining the anti-majoritarian purpose of constitutional rights. Tribe highlights this tension, noting that our system entrusts policy to majorities “subject only to the antimajoritarian protection of beleaguered minorities and fundamental personal rights” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). Dobbs removed one of those fundamental rights, leaving a vulnerable minority (pregnant individuals seeking abortion) at the mercy of the majority’s will. The majority’s claim to be neutral umpires of the law thus rings hollow – they did not simply referee a return to democratic decision-making, they actively chose whose rights merit protection and whose do not. In effect, Dobbs presents itself as bolstering the rule of law and democratic choice, but it achieves this by destabilizing longstanding rights and denying justice to those who depended on them. The decision’s fidelity is to an idea of law (as historically fixed rules), not to justice in the lived, present sense. The resulting gap between law and justice in Dobbs is precisely the space where Derrida’s critique operates: it exposes how a supposed return to legal “order” masks a new disorder of injustice.
Performative Contradictions and Différance in Alito’s Reasoning
Justice Alito’s opinion in Dobbs purports to offer a straightforward historical analysis and a restrained judicial posture. Yet, a closer look – especially through the lens of Derrida’s concept of différance (the idea that meaning is always deferred and dependent on differences) – reveals performative contradictions at the heart of Alito’s reasoning. One performative contradiction lies in the opinion’s treatment of precedent and historical tradition. Alito insists that the right to abortion must be “deeply rooted in this Nation’s history and tradition” to merit constitutional protection. By defining the right at “the most specific level” (as a right to terminate pregnancy), he finds it absent in history and thus denies its legitimacy (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). However, this method is inconsistently applied and conceptually incoherent. As Tribe points out, the majority’s chosen test – drawn from Washington v. Glucksberg (1997) – had itself been largely abandoned by the Court in Lawrence v. Texas (2003), which recognized rights of adult intimacy that were not historically sanctioned (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). Alito’s opinion never grapples with this inconsistency; it simply performs fidelity to history in this case, while the Court happily disregards history in others. This selective invocation of tradition is a kind of différance: the meaning of “due process liberty” is deferred and altered depending on the case. The Dobbs majority claims to pin down the true historical meaning of liberty, yet the Court’s own precedents show that meaning sliding and changing over time. The result is an internal contradiction – Dobbs declares a firm rule even as the broader jurisprudence undermines that rule’s stability. It is as if the text of constitutional liberty carries a trace of its past and future interpretations that Alito’s opinion tries, and fails, to erase.
Another performative contradiction is the majority’s claim to judicial neutrality versus the overtly ideological nature of its reasoning. Alito asserts that the Court is not taking sides on whether abortion is good or bad, but merely saying the Constitution is neutral and leaves the issue to the people. In performance, however, the opinion’s rhetoric and structure betray a heavy bias. The leaked draft opinion, as Tribe observed, was “unsparing in its…savage attack” on Roe – even “making fun” of the Roe opinion’s reasoning (Laurence Tribe on Roe v. Wade ruling — Harvard Gazette). While the final opinion toned down some language, the substance remained an “iron fist” in a “velvet glove,” as Tribe memorably put it (Laurence Tribe on Roe v. Wade ruling — Harvard Gazette). The Court’s performative stance is that of a neutral arbiter correcting an egregious error, yet the very ferocity of its approach (e.g. comparing Roe to infamous decisions and dismissing it as “abuse of judicial authority”) is anything but neutral. Derrida’s idea of différance can be used to interpret this disjuncture: the majority’s text contains differences it does not acknowledge – between what it says it is doing and what it does. For example, Alito’s opinion assures that nothing in Dobbs should cast doubt on unrelated precedents like Griswold (contraception), Lawrence (intimate conduct), or Obergefell (same-sex marriage). Yet in the same breath, the reasoning undercuts the foundation of those rights (they too are unenumerated and not “deeply rooted” in 1868), and Justice Thomas’s concurrence openly invites revisiting them. The majority performs a contradiction: it seeks to quell the implication of its logic by fiat declaration. This “now you see it, now you don’t” treatment of precedent is a hallmark of différance – the meaning of Dobbs (does it threaten other rights or not?) is indeterminate, deferred to future cases, even as the text tries to pin it down.
Moreover, consider Alito’s argument about “ordered liberty” and the need for “utmost care” in expanding rights, to avoid the judiciary enshrining its own policy preferences (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). This expressed caution is deeply ironic, as Tribe notes: Alito gives “no reasons” why such caution warrants destroying an existing, long-standing right rather than merely declining to create a new one (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). The performative self-contradiction here is striking – an opinion that claims judicial modesty while executing one of the most aggressive judicial interventions in modern history. Derrida might call this a case of a text undermining itself: the iterability (repeatability) of legal reasoning means that arguments can always be turned back upon themselves. The cautionary principle invoked in Dobbs could just as well indict the Dobbs decision for recklessly jettisoning precedent. Alito’s writing cannot escape this dynamic; the more it insists on a singular, settled meaning (abortion rights are not protected), the more it highlights the differend – the unresolved difference – between past jurisprudence and the present. The cracks and aporias (gaps in logic) become evident to critical readers. Thus, using Derrida’s lens, we see Dobbs as a text at war with itself: it performs certain values (neutrality, historical fidelity, restraint) while contradicting them in action, its meaning continually deferred and fractured by what it omits and what it cannot convincingly reconcile.
Mysticism and Sexism in the Ruling’s Paternalistic Framework
Dobbs not only draws authority from mystique; it also resurrects old patriarchal norms under the guise of constitutional law. There is a strain of mysticism and sexism in the ruling’s reverence for “history and tradition” – a tradition that largely excluded women from legal and political power. The majority’s approach effectively constructs a paternalistic framework that diminishes individual agency, especially women’s agency. Alito’s opinion repeatedly valorizes the fact that abortion was criminalized in most states in the 19th century, implicitly treating those historical laws (enacted in an era when women had no voice in the legislature or courts) as a sound basis for modern constitutional interpretation. The decision pointedly ignores the perspective of those whose rights are at stake – indeed, in over two hundred pages between the majority and concurring opinions, the word “women” is astonishingly scarce. Instead, women are largely spoken of as abstract entities or implicitly as mothers and potential mothers. As Tribe observes, the thrust of Dobbs reduces a pregnant woman to “a vessel that governments are free to regulate as they see fit” once embryonic or fetal life is present (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). This vision is profoundly paternalistic: it treats the female body as subject to the state’s authority in the name of protecting “potential life,” without regard to the woman’s own will or wellbeing. In effect, the ruling empowers the state to make intimate decisions on a woman’s behalf, a hallmark of a patriarchal legal order.
The sexism inherent in Dobbs is perhaps most evident in the authorities and logic the majority embraces. In a chilling historical aside, the Court favorably cited Sir Matthew Hale – a 17th-century jurist notorious for declaring that a husband cannot be guilty of raping his wife and for sentencing women to death as “witches” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). That Dobbs, in the 21st century, leans on a man like Hale for wisdom on women’s reproductive rights speaks volumes. Tribe notes it is “unsurprising, but no less horrifying” that Alito did so without “evident embarrassment” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). The mystique of tradition in Dobbs thus doubles as a mystique of patriarchy: by sanctifying the past, the Court sanctified the sexist mores embedded in that past. Derrida’s discussion of legitimate fictions in the foundation of law is relevant here (Scanned using Book ScanCenter 7131). The majority constructs an almost mythic narrative that by removing Roe, they are simply restoring the true constitutional order (a sort of return to an original purity). This is a fiction that establishes the “truth” of their justice, to borrow Derrida’s terms (Scanned using Book ScanCenter 7131). It ignores that the “original” legal order was one that denied women equal personhood. By erasing that context, the majority shrouds its decision in a mystical aura of inevitability — as if the Constitution itself, anachronistically, always already excluded abortion rights because some men in 1868 banned abortion. This logic is not reasoned analysis; it is an invocation of ancestral authority, almost quasi-religious in tone (fitting with what Tribe calls the opinion’s “religiously imbued” agenda (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books)).
Furthermore, the ruling’s paternalism is evident in its treatment of women’s autonomy as legally immaterial. The majority discounted 50 years of lived experiences under Roe, including the idea that the ability to control one’s reproductive life is central to women’s freedom and equality. Instead, Dobbs insists that such considerations are for legislatures, not courts. This embodies what Derrida might call an exclusion of the other’s voice. In The Other Heading, Derrida wrote about the necessity of openness to the Other in forming any just identity (Reading Derrida’s ‘The Other Heading: Reflections on Today’s Europe’ – Philosophical Ostrogoth) (Reading Derrida’s ‘The Other Heading: Reflections on Today’s Europe’ – Philosophical Ostrogoth). The Dobbs Court, however, closed itself off to the voices of women as others who might contest the meaning of liberty. The legal identity it asserts for the nation is one filtered through paternalistic tradition, excluding the standpoint of those who bear the consequences. It is telling that all three justices in dissent (Breyer, Sotomayor, Kagan) repeatedly emphasized women’s perspective and equality, while the five-justice majority opinion barely acknowledged it. The mysticism of Dobbs is thus also a masculine mystique: an exercise of authority by (mostly) men, justified by male-centric history, imposing a duty traditionally placed on women (child-bearing) in the name of an abstract collective good. It resurrects what feminist scholars have long pointed out about anti-abortion laws – that they often reflect a desire to control women’s sexuality and role in society under a guise of chivalric protection of life. Derrida’s critique of phallogocentrism (male-centered reason) in law and language could certainly be extended here: Dobbs enshrines a phallocentric historical viewpoint as constitutional doctrine, effectively silencing the “others” (women) whom justice would demand be heard. In sum, Dobbs wraps a deeply patriarchal value system in the mystique of legal formalism. It constructs a world where the law stands as a stern father figure, overriding individual agency for the supposed good of order and tradition. This mystic-paternal authority is precisely what Tribe condemns as Dobbs’ assault on women’s equal citizenship, and what Derrida would recognize as the violent imposition of an old sovereign order under the banner of law.
A Decision Lacking Rigor: Deconstructing Dobbs as a Legal Failure
Tribe’s assessment of Dobbs is unsparing: he decries the majority opinion for lacking intellectual rigor and failing to meet even basic standards of legal reasoning. In his words, Dobbs’ reasoning is so poor that it is Alito’s opinion – not the much-maligned Roe – that truly “is not constitutional law and gives almost no sense of an obligation to try to be” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). This biting critique (ironically repurposing a famous scholarly attack on Roe) captures the essence of Dobbs as a legal failure. A deconstructive reading of the opinion, following Derrida, reinforces Tribe’s point: when subjected to careful scrutiny, Dobbs collapses under the weight of its own contradictions, omissions, and circular logic. It is a textbook case of a judicial decision that might satisfy a predetermined ideology but would not withstand the demands of rigorous academic or scholarly analysis.
Consider the opinion’s handling of constitutional text and history. Alito dismisses the Ninth Amendment – which instructs that unenumerated rights are still retained by the people – with a cursory aside that the right to abortion is not founded in the Ninth Amendment (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). Tribe rightly labels this a category error: nobody claimed abortion is in the Ninth Amendment; rather, the Ninth is a rule of construction that should caution against exactly the kind of narrow reading of liberty the Court engaged in (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). In an academic setting, such a straw man argument would be considered either disingenuous or ignorant. Likewise, the majority’s historical survey has been widely panned by historians for cherry-picking evidence (for instance, downplaying the relatively lenient treatment of abortion in the early American republic while elevating later 19th-century bans influenced by Victorian morality). The Court’s analysis of precedent is equally flimsy: it selectively elevates some cases (like Glucksberg’s test) while sidestepping others (Casey’s reaffirmation of Roe’s core, Lawrence’s rejection of historical morality as a guide to rights) that inconveniently undermine its thesis. Rather than wrestling with these counterpoints in a scholarly way, the Dobbs opinion simply asserts its conclusion with what Tribe calls “certitude and hubris” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). The justices in the majority appeared unconcerned with demonstrating a principled jurisprudence; “because we have the votes” became a substitute for reasoned justification (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). This is exactly the kind of unreasoned exercise of power that a deconstructive analysis lays bare.
Derrida’s approach to legal texts often involves revealing the aporias – the impasses and internal inconsistencies – that the text tries to paper over. In Dobbs, one finds aporias at every turn. For example, the opinion claims to respect stare decisis (precedent) and lists factors for overruling a case, yet its application of those factors is one-sided. It emphasizes that abortion rights were controversial (as if civil rights litigation is not usually controversial) and that Roe’s reasoning was flawed (while ignoring that Dobbs introduces even greater flaws). It gives virtually no weight to the massive societal reliance on Roe – something even the Court’s own precedents say is crucial in deciding whether to overturn a case. The result is a performative contradiction: Dobbs recites the standard test for overruling a precedent and then effectively ignores that test’s outcome (since an honest application, many argue, would not have overturned Roe). A law review or a sharp law school classroom discussion would quickly spot this inconsistency. In Tribe’s view, Dobbs reads more like a results-driven polemic than a judicial opinion wrestling with hard questions. He notes that the opinion “fails to provide any clear secular support” for its central claim that Roe was egregiously wrong (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). Stripped of moralistic or religious rhetoric, there is simply no there there — no constitutional provision that unequivocally demanded this outcome, no historical consensus (the country is starkly divided), and no principled theory of rights advanced. This aligns with Derrida’s insight that often what passes as legal reasoning is buttressed by non-legal, metaphysical assumptions (here, arguably, the primacy of embryonic life or a moral tradition) that the text itself doesn’t justify. The Dobbs opinion, when deconstructed, reveals itself as a house of cards: its key premises either rest on logical fallacies, or else they rely on unstated value judgments that are asserted as though they were neutral facts.
In an academic context, Dobbs likely would not survive peer review or even a competent moot court critique. Its use of sources is tendentious (selectively quoting common law authorities who opposed abortion while ignoring those who tolerated it), and its handling of counterarguments is mostly to dismiss or ignore them rather than refute them. Tribe’s harsh conclusion that Dobbs “is a fiat” rather than law (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) might sound polemical, but it is borne out by the text. Derrida might add that Dobbs exemplifies how legal writing can give the illusion of reasoning while actually being an exercise of power. The “mystical foundation” of its authority is laid bare when one strips away the ornament of verbose citations and historical anecdotes: what remains is the will of five justices. In a scholarly setting, the decision’s lack of analytical rigor would be exposed by probing questions — the very questions Dobbs studiously avoids, such as: Why isn’t bodily autonomy part of “liberty” in the 14th Amendment? What principled limit exists on the states’ power to force childbearing? How can we be sure other rights are safe if their rationale is indistinguishable from Roe’s? Instead of grappling with these, the opinion declares victory and moves on. In this way, Dobbs invites the Derridean deconstruction that shows it to be less a reasoned judgment than an authoritarian pronouncement dressed in legal garb. Both Tribe’s doctrinal critique and Derrida’s philosophical critique converge to the same point: Dobbs lacks the quality of reasoning and reflection that we expect from the rule of law, and in that sense, it fails as a piece of legal scholarship or jurisprudence.
Sovereignty, Democracy, and Exclusion: Dobbs in the Light of Rogues and Other Works
Beyond the immediate issues of abortion rights, Dobbs can be seen as a case study in the exercise of legal sovereignty and the paradoxes of democracy — themes Derrida explores in The Other Heading, The Beast and the Sovereign, and Rogues. The decision lays bare how a sovereign authority (here, the Supreme Court majority) can impose an exclusionary vision of the law, and how democratic rhetoric can be used to undermine democratic values. In Rogues, Derrida examines the tension between democracy’s promise of equality and the inevitability of exclusions and concentrations of power. He notes that even the most democratic nations carry the “possibility of suspension” of law, making them resemble “rogue state[s]” when power is exercised without consensus ( Jacques Derrida (Stanford Encyclopedia of Philosophy) ). In Dobbs, the suspension of a longstanding constitutional right by a narrow majority of justices has exactly this character. The ruling was issued by what Tribe calls a “ruling clique” of five justices “imposing its ideological commitments upon a vast majority” of the country that disagrees (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). This is, as Tribe flatly declares, “tyranny by the minority” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). Derrida’s insight that democracy can devour itself – that its own institutions can commit autoimmune acts against democratic principles – resonates here (The Democracy To Come: Notes on the Thought of Jacques Derrida). The Court used the language of returning power to the people, but the immediate effect was to remove a right that protected individuals from majority imposition. Many states moved to enforce bans that a majority of Americans do not support. Thus, in the name of “the people,” the Court enabled a scenario where millions of individuals (often in the minority in their state) lose freedom. The democratic ideal of protecting minorities was sacrificed, revealing an internal contradiction of democracy that Derrida highlights: the majority principle can clash with the principle of equal liberty.
Sovereignty is another key concept at play. In The Beast and the Sovereign, Derrida engages with the idea of the sovereign as one who stands above the law or decides the exception (drawing on Carl Schmitt’s famous definition). The Dobbs majority in a sense acted as sovereigns deciding an exception to the post-Roe legal order. For decades, women’s reproductive choice was a constitutionally protected liberty interest – a part of the legal structure. By a sovereign decision, the Court declared that this protection no longer exists, effectively placing pregnant women outside the shield of constitutional liberty in this regard. The decision was not prompted by any new law or democratic development; it was a top-down decree, illustrating how the sovereign power of the Court can operate like Derrida’s beast – unchecked by ordinary limits, answerable only to itself. Indeed, the majority showed a certain sovereign disdain for opposing viewpoints, much as a monarch might. Justice Alito’s opinion brushed aside the moral and practical complexities with an almost peremptory tone: these matters are for states, end of discussion. The Court’s authority here is self-justifying (recall Derrida’s point that sovereignty is asserted in an “original act of violence… maintained by force” (Derrida and Legal Philosophy - Notre Dame Philosophical Reviews) (Chapter 6 Justice and Mercy: Can They Be Reconciled from a ... - Brill)). The majority’s judicial sovereignty manifests in the fact that no external force can easily countermand them; short of constitutional amendment or a change in the Court’s own composition, their word is final. This dynamic vindicates Derrida’s caution that law is always subject to the sovereign exception — the point where power says “thus it shall be,” reasoning aside.
In The Other Heading, Derrida discusses how communities (like Europe) negotiate identity by setting a “heading” or direction, often excluding those who don’t fit the chosen narrative (Reading Derrida’s ‘The Other Heading: Reflections on Today’s Europe’ – Philosophical Ostrogoth) (Reading Derrida’s ‘The Other Heading: Reflections on Today’s Europe’ – Philosophical Ostrogoth). Dobbs can be seen as the Supreme Court reorienting the “heading” of American constitutional identity towards a more exclusionary path. The decision explicitly elevates one set of values (traditional, often religiously-inflected notions of life and order) over another (individual autonomy and gender equality), thereby excluding the latter from the nation’s constitutional identity. It’s a redefinition of “We the People” in a narrower way – effectively saying the Constitution belongs to the religious and traditionalist heritage, and those seeking a more progressive, inclusive interpretation are outsiders to that heritage. This is a form of exclusionary legal sovereignty: the Court majority asserts its authority to define fundamental values and in doing so, it marginalizes those Americans (a large portion, if not the majority) who embrace a more expansive view of liberty and privacy. The internal contradiction of American democracy here, as Derrida would note, is that a constitutional system dedicated to “Liberty… and Justice for all” can be commandeered by a faction to withdraw liberty from half the population (women) for the sake of a particular moral “order.” Democracy’s promise and peril are both on display: the judges were put in place through a democratic (if flawed) process, yet they acted in ways that undermine egalitarian democratic outcomes. Notably, as Tribe points out, three of the justices in the Dobbs majority were appointed by a president who lost the popular vote, and confirmed by senators representing a minority of the population (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). This highlights a structural quirk of American democracy that allowed an ideological minority to entrench power and then use ostensibly democratic rhetoric to curtail rights. Derrida’s Rogues discusses how even constitutional democracies can have elements of the “rogue” when they operate through such minority rule that thwarts the will or welfare of the majority (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) ( Jacques Derrida (Stanford Encyclopedia of Philosophy) ).
In summary, Dobbs stands as an embodiment of what Derrida identified as the paradox of sovereignty in a democracy: the sovereign power (here the Court) is supposed to serve the law and the people, yet it can set itself above both. The decision underscores how the American democratic system has self-contradictory features — championing freedom while enabling its denial, invoking “the people” while subverting popular and individual will. Through Tribe’s concrete critique and Derrida’s theoretical framework, Dobbs can be seen as a stark reminder that law is not inherently just, that democracy is not automatically self-correcting, and that rights can never be taken for granted. Instead, they are subject to the vagaries of power and interpretation – to the mystical foundations and sovereign exceptions that Derrida urges us to interrogate.
Conclusion
The collision of Laurence Tribe’s legal critique with Jacques Derrida’s deconstructive philosophy provides a multifaceted understanding of Dobbs v. Jackson Women’s Health Organization. Tribe’s analysis exposes Dobbs as a doctrinal travesty – an opinion driven by ideology and authority rather than sound legal reasoning – and Derrida’s insights deepen this critique by illuminating the structural and philosophical underpinnings of that failure. The Dobbs majority, in Derrida’s terms, exercised the force of law without the justice that gives law legitimacy. Its authority is “mystical” in that it rests ultimately on the will of those five justices, not on a compelling argument (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) (Scanned using Book ScanCenter 7131). What the Court portrayed as fidelity to law and tradition was, on deconstruction, an exertion of power that performs coherence but conceals contradictions and injustices. The decision posited a firm line between law and morality, yet blurred it through historical mythmaking; it claimed neutrality yet sprang from a specific moral vision. In applying Derrida’s distinction between law and justice, we saw that Dobbs achieves legal change at the expense of justice – offering the false stability of “settled” doctrine even as it destabilized half a century of rights and bodily autonomy. The opinion’s internal tensions – its performative contradictions and semantic sleights of hand – become clear when examined with the concept of différance, revealing a text that cannot fully account for its own meaning or implications.
Moreover, the Dobbs ruling resurrects a patriarchal legal order under cover of constitutional originalism, effectively erasing the agency of those most affected. In doing so, it confirms Tribe’s warning that the decision is a regression for equal citizenship and a vehicle for archaic, sexist norms (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books). Through Derrida’s lens, we understand this as part of the mystique of authority – the law invoking the past to legitimize power in the present, even if that past is fundamentally unjust. Finally, by integrating Derrida’s broader political insights, we recognize Dobbs as a case of “exclusionary sovereignty” in action, where a minoritarian Court imposes its will on the majority, exposing the frailties and paradoxes of our democracy (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) ( Jacques Derrida (Stanford Encyclopedia of Philosophy) ). The Supreme Court’s promise to leave the issue to “the people” rings ironic when those very people are now divided by state lines, stripped of a right they long exercised, and subject to the whims of local power.
In conclusion, balancing Tribe and Derrida allows us to see Dobbs in its full dimensions: as a legal decision that fails the tests of reasoning and justice. It is a reminder that what passes for legal argument can sometimes be “naked power dressed up in legal form” (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books), and that such power, when unchecked by a commitment to justice, can unravel rights in the name of law. A Derridean deconstruction of Dobbs supports Tribe’s verdict that the decision would flunk any good-faith scholarly examination. More importantly, it underscores the urgency of critically examining our legal foundations. If Dobbs relies on a mystical foundation of authority, as we have argued, then it falls to scholars, citizens, and future jurists to demystify that authority — to insist that law’s force be tied to reason and justice rather than tradition for its own sake. In exposing Dobbs’ mystifications and contradictions, Tribe and Derrida (each in their own way) call on us to remain vigilant: to recognize that the legitimacy of law is always a work in progress, dependent on our ceaseless pursuit of justice over mere authority.
Sources: Laurence H. Tribe’s critiques in The New York Review of Books and Harvard Gazette; Jacques Derrida’s “Force of Law: The Mystical Foundation of Authority,” The Other Heading, The Beast and the Sovereign, Rogues, and related commentary. (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) (Scanned using Book ScanCenter 7131) (Deconstructing Dobbs | Laurence H. Tribe | The New York Review of Books) ( Jacques Derrida (Stanford Encyclopedia of Philosophy) )
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