Bench Memos

“The Supreme Court’s Worst Constitutional Decision of All Time”

As my This Day entry for today discusses, twenty years ago today the Supreme Court, by a vote of 5-4, issued its horrendous decision in Planned Parenthood v. Casey. In his Public Discourse essay today (“Casey: Enduring, Entrenched, Intentionally Evil Egregious Error”), law professor Michael Stokes Paulsen explains why Casey is his selection as “the most reprehensible act of judicial betrayal of the Constitution, of judicial duty, and of judicial morality, in our nation’s history.” He also outlines the “moral imperative of principled resistance” to Casey.

On Paulsen’s criteria, I think that the Dred Scott decision has a fair claim to beat out Casey (or at least to tie it), but the fact that Casey persists makes it all the more important to relentlessly highlight its pervasive egregiousness.

Here’s an excerpt from Paulsen’s essay:

Casey, more than Roe—and much more like Dred Scott—was intentional, carefully considered (one is inclined to say premeditated), and made with full awareness of both its constitutional weakness and its deadly human costs. Reading the joint opinion in Casey, one cannot help but detect an acute consciousness of guilt on the part of at least several of the justices comprising the majority, each of whose votes was necessary to the result. The opinion is careful to note, repeatedly, and somewhat awkwardly, that not all in the majority were necessarily in agreement with Roe. Indeed, Justice O’Connor and Justice Kennedy both flipped from previously stated positions.

One cannot at all forgive the Casey Court, as one might the justices who rendered Roe, on the theory that they knew not what they were doing. The Court in Casey knew exactly what it was doing. It knew the jurisprudential stakes; it knew the moral arguments; it knew the reality of what abortion was and what abortion does. The justices did what they did with full knowledge of the consequences, with full awareness that the claimed right to abortion lacked any legitimate legal basis, and with full appreciation that the deaths of millions of unborn human children hung on their decision. For some of them, it is clear that their votes to reaffirm and extend Roe were also cast against their own moral consciences.

And they did it anyway. They did it for reasons of vanity, perception, power, and cowardice, cast as judicial duty. They did it because they thought more people, or more of the right people, would think better of them if they did what they thought wrong, rather than right.


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