In 1973, the U.S. Supreme Court heard arguments in the case Roe v Wade centered around the topic of abortion. Up to that point, some states allowed it, others prohibited it, and still others regulated it. The 7-2 decision in Roe was based on an implied right to privacy originating in the due process clause of the Fourteenth Amendment. The effect of that decision was that the law on abortion became uniform throughout the 50 states: permitted absolutely in the first trimester, regulated in the second, and prohibited in the third.
When Justice Lewis Powell retired from the court in 1987, President Reagan nominated Robert Bork to replace him. This was the first of the contentious Supreme Court nominations, so ferocious that it spawned a new verb, to bork (v. tr.), defined as
"To defame or vilify (a person) systematically, esp. in the mass media, usually to prevent his or her appointment to public office; to obstruct or thwart (a person) in this way."
The attacks on Bork were primarily based on his response to a question regarding Roe v Wade, specifically that he thought the Supreme Court should not have opined on the topic since it was clearly a matter of state jurisdiction (that is, the way it was prior to Roe). Bork's nomination hearings set the pattern for all subsequent Supreme Court nominations, the most recent being those for Brett Kavanaugh and Amy Coney Barrett.
Roe has generated intense controversy over the decades since 1973, virtually none of it related to the notion of "federal legislative authority".
Until now.
Comes now before the court Dobbs v. Jackson Women's Health Organization that addresses a law in Mississippi banning abortion after 15 weeks (that Roe presumably permits). JWHO sued because this was a contraction from the previous limit of 24 weeks. A firestorm has erupted over the leak of a draft decision in the case that, were it the majority decision, would overturn both Roe and Planned Parenthood v Casey and return the entire issue into the hands of state legislatures as it was prior to Roe.
Article I section 8 of the Constitution begins: "Congress shall have power to..." and goes on to list 17 areas of concern that Congress shall have power to legislate in. There is not a single one of those 17 that can be construed as providing federal jurisdiction over abortion or the states' methods of addressing that issue.
Bork was right, but Bork was an originalist. He also, unlike too many Americans, too many American judges, and too many American Congressmen, understood the Constitution.
For reasons that are not at all obvious, we apparently now have a Supreme Court that is as smart as Robert Bork.
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Bork was an originalist in the sense that he believed legislation should be read in the way intended by its framers/ratifiers when he found it convenient -- and he found it inconvenient to apply that to the US Constitution. He explicitly rejected the founders'/framers' "libertarian theory of jurisprudence," under which the government only had the powers enumerated to it in the Constitution. His opinion was that where the Constitution was silent, the legislature was free to do whatever it damn well pleased (all of this is explained in his book Slouching Toward Gomorrha).
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