Thursday, June 26, 2003

Scalila zings again

As the vast majority of you probably know, today the US Supreme Court overturned Texas' anti-sodomy law. You can go read the opinions and dissents here.

I just want to note one thing right now, and that's a zinger from Justice Scalia in his dissent. Here it is:
    I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it. ... Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it.
In other words, in the Casey decision (whose opinion was also penned by Kennedy, along with O'Connor and Souter), the Court decided that Roe v. Wade should be upheld, not because it was good constitutional law (it wasn't), but because the importance of precedence had to be upheld in spite of and in the face of widespread criticism. In this Texas case, though, the widespread criticism of the prior Court decision (Bowers v. Hardwick) was cited as reason to over turn the prior decision. So in Casey, opposition to the prior decision demanded sticking by the prior decision. But in this case, opposition to the prior decision demands rejecting the prior decision.


(Thanks to Ramesh Ponnuru's emailer for pointing this out.)

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