Bench Memos

Law & the Courts

This Week in Judicial Supremacist Arrogance (Continued): Planned Parenthood v. Casey

This Thursday marks the twenty-fifth anniversary of the worst Supreme Court decision of all time.   Planned Parenthood v. Casey is worse than Roe, which itself ranks among the worst decisions of all time.  Casey reaffirmed Roe’s creation of a right to abortion – a constitutional right of some human beings to kill other distinct, living human beings.  Roe was textually, historically, and morally indefensible. Casey is even worse, and what makes it worse was the Court’s full awareness of the wrongness of Roe in all these respects, the deliberate attempted entrenchment of Roe notwithstanding this awareness, and the base motivation for doing so. 

The justices in Casey knew Roe was indefensible.  They reaffirmed it anyway, not because a majority thought Roe was right – it is plain that they did not – but because a controlling bloc thought that public perceptions of the justices, and the justices’ own self-image required them to adhere to Roe “whether or not mistaken.”  The justices’ power depended (or so they seemed to feel) on sticking to errors on which the Court had staked its authority, so that all those “tested by following” would continue to trust the Court and accede to its proclamation of authority to “speak before all others” on constitutional questions. 

Casey is the supreme example of judicial supremacist arrogance.  The decision is wrong, legally.  (The reliance on stare decisis was an obviously contrived pretext.)  The decision was wrong, morally, upholding one of the worst ongoing moral atrocities in the history of humankind.  And the decision was wrong, knowingly, deliberately and intentionally.  It was done for the most craven and reprehensible of reasons: vanity, self-importance, and a desire to further personal power and image. 

There’s much more that could be said, but I said most of it fifteen years ago, in a tenth-anniversary article for the Notre Dame Law Review (linked above, in the first line of this post) and five years ago in two short essays for the web magazine The Public Discourse, on the occasion of the twentieth anniversary of Casey.  (See here and here.) 

June 29, 1992 is a day that shall live in constitutional infamy.       

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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