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“With Sorrow . . . We Dissent”: The Radical Affective Turn of the Dobbs v. Jackson Women’s Health Organization Dissent
Verghese, Namrata
Verghese, Namrata
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Abstract
This article offers a close reading of the Dobbs v. Jackson Women’s Health Organization dissent to illuminate its quietly radical nature. While the tradition of legal rhetoric is one of Cartesian dualism and disembodiment, the Dobbs dissenters deliberately turn to affect, employing rhetorical strategies that both embody the Justices, and produce embodied responses in the audience. This article attends to four of these rhetorical tools-namely, informal language, rhetorical questions, textured language, and naming identity as a factor in lawmaking-to suggest that, by breaking with the conventions that circumscribe legal language, the Justices gesture towards the exceptional nature of this case, and the fissure it produces in legal genealogies. This paper argues that the Justices’ turn to affect and embodiment ruptures legal convention because Dobbs itself ruptures legal convention-indeed, it ruptures legal legitimacy. It throws into disarray the disembodied grammar of the law. The form of the dissent is, traditionally, a roadmap for the future. But the Dobbs decision forecloses the possibility of a roadmap to the future-it plunges us, instead, into uncharted waters. The radical turn to affect in the Dobbs dissent is emblematic of this radical break in legal tradition. In that context, the dissent reads not as a roadmap for the future, but as an apology-perhaps even a eulogy.