Prepping for an episode of Uncommon Knowledge next week with Judge Bork (and I confess I won’t finish reading all the questions Corner readers have suggested until this evening), I’ve been poring over the Lawrence decision. The decision is worse, far worse, than I’d imagined: Muddled, pompous, and, in the end, an astonishingly brazen assertion that the majority simply knows better than the legislature of Texas. Truly, friends, you have to read this stuff to believe it. But it takes Scalia’s dissent to identify the particular outrage here: the shameless flip-flop on stare decisis.

In the 1992 case, Planned Parenthood v. Casey, Scalia notes, the majority made a big deal out of the doctrine of stare decisis, that is, of the need to ensure the basic stability of the law by deferring to precedent. We may not like Roe, the majority held in Casey, but overturn it? No way. A Supreme Court decision is a Supreme Court decision. But in Lawrence, the majority overturns the Bowers decision without compunction. “[T]imes can blind us to certain truths,” Justice Kennedy writes in the majority decision, “and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” In other words, the Court is determined to write into law the moral opinions of the liberal elite, and stare decisis be damned.

Justice Scalia: “[W]hen 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…is offered as a reason in favor of overruling it….To tell the truth, it does not surprise me, and it should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.”