Casey is not a sound exposition of the
Constitution, and its authority should be repudiated by all other actors
in our constitutional system The second in a two-part series on the
deadly significance of Planned Parenthood v. Casey
The Supreme Court has done a fair number of truly
awful things in its history, falsely blaming them on the Constitution:
creating a constitutional property right to slavery and extending it
into new territories (Dred Scott, 1857); gutting the Fourteenth
Amendment’s guarantee of equal protection of the laws by warmly
embracing state racial segregation (Plessy v. Ferguson, 1896); discrimination against women (Bradwell v. Illinois, 1873), and eugenic sterilization of the disabled (Buck v. Bell, 1927); declining to disturb a state-wide scheme to deprive blacks of the right to vote (Giles v. Harris, 1903); ratifying Franklin Roosevelt’s military internment of innocent Japanese-American civilians during World War II (Korematsu v. United States, 1944); ordering a religious college to cease teaching blacks and whites together (Berea College v. Kentucky, 1908); upholding the expulsion from school of children whose religious beliefs forbade them to salute the flag (Minersville School District v. Gobitis,
1940); and affirming the criminal conviction and incarceration of a
prominent former presidential candidate for making an anti-war speech (Debs v. United States, 1919), to name just a few of the most infamous.
But of all the atrocious things the Court has done in the name of the Constitution, none is worse than Planned Parenthood v. Casey, decided twenty years ago today. Casey is the worst Supreme Court constitutional decision of all time.
Yesterday, I discussed Casey’s
extraordinary significance—for abortion law specifically, for its view
of judicial power generally, for its embrace and practice of stare decisis as a tool of judicial power, and for its acceptance of substantive due process. Today, I discuss Casey’s sheer atrocity. For in every respect that Casey is significant, it is cruelly and horribly wrong.
What Makes a Supreme Constitutional Atrocity?
My criteria are simple and straightforward. A Supreme Court decision
interpreting the Constitution is atrocious to the extent it is both
legally wrong and produces great human harm; and it is worse
yet where intentionally wrong and knowingly harmful and where it tends
to generate or perpetuate further wrongs and harms.
A decision is legally wrong when it reaches a result not fairly
attributable to a rule of law supplied by the text, structure, and
history of the Constitution. And a wrong decision is harmful where it
produces evil, injurious consequences to innocent human beings—death,
oppression, enslavement, deprivation of fundamental human rights,
internment, incarceration, deprivation of liberty, misery,
discrimination, or indignity.
Both legal error and great harm must be present for a judicial decision to be truly atrocious. A right constitutional
decision—one faithful to the text, structure, and historical
understanding of the document—might sometimes yield harmful human
consequences if the Constitution itself permits such consequences and
the people’s democratic representatives enact bad (but not
unconstitutional) laws. The fault then lies with the Constitution, or
the representatives, or the people, not with the court rendering the
decision. Conversely, not all wrong judicial decisions inflict great
human harm; some are inconsequential, some have a short shelf life, and
some might even produce “good” results (aside from the problem of legal
error itself).
If a legally wrong decision is made willfully and intentionally, and
its harm is known, the decision is all the worse. As the saying goes,
even a dog knows the difference between being tripped over and being
kicked. Dred Scott, for example, displays a crafty, deliberate, manipulative, insidious intention to reach a predetermined result of entrenching and extending slavery and de-legitimizing antislavery politics. Dred Scott was
a premeditated deed of willful calculation, designed to achieve a clear
moral wrong, cloaked in the veneer of legal respectability. Roe v. Wade, in contrast, for all its legal idiocy, was more an act of supreme judicial incompetence by men who seem to have thought that what courts do
is make social policy, and who seem neither to have appreciated the
moral stakes of abortion nor to have understood what they actually held
with respect to it. They may even have believed their decision to be a
balanced compromise.
Finally, an egregious decision is even worse to the extent it tends
to perpetuate, entrench, or generate further legal wrongs. A horrid bump
in the constitutional road is still a horrid bump, but if it is easily
corrected, quickly overruled, or readily ignored, it might be confined
to that single case. A wrong that begets more wrongs, and that strives
to make itself invulnerable to correction, is all the worse.
The search is thus for error, egregious error, evil egregious error,
intentionally evil egregious error, and enduring, entrenched,
intentionally evil egregious error. And on these criteria, Casey is the Supreme Court’s worst constitutional decision of all time, beating out even Dred Scott and Roe v. Wade for that dishonor.
Casey’s Grave Legal and Moral Wrongness
The decision in Casey is as legally wrong as Roe, unless somehow repeating wrongs makes them rights. That was Casey’s insidious argument, of course—an illogical sophism and, as deployed by the Court, a dishonest one. That makes Casey even more wrong than Roe. Casey’s harmful and evil effects have, as noted yesterday, now outrun Roe
in raw years and raw numbers of human lives killed under its regime.
Unless one thinks the right to abortion on demand a good and wonderful
thing, the magnitude of human harm wreaked by Casey is greater than any other decision in history, Roe included: the legal warrant for a society’s deliberate killing of thirty million human lives. Casey stands
to last longer yet; its whole argument is for entrenchment of the right
to abortion—that a grave judicial wrong, once boldly ventured, should, by virtue of that fact, stand in perpetuity.
Casey’s Intentional Embrace of Presumed Error and Known Harm
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.
This makes Casey the most reprehensible act of judicial
betrayal of the Constitution, of judicial duty, and of judicial
morality, in our nation’s history. It is hard to escape the judgment
that, for a justice who believed that Roe was legally and morally wrong nonetheless deliberately to reaffirm it, on the pretense that stare decisis or protection of judicial power required it, is to act in deliberate, knowing complicity with evil.
Casey’s Perpetuation, Entrenchment, and Spawning of Ongoing Wrongs and Harms
Casey also seeks to perpetuate its errors and harms—to
entrench abortion on demand and de-legitimize criticism of the Court and
its abortion cases. The Court sought to leverage its power forward in
time, suppress future opposition, and end the debate about legalizing
abortion forever. In this respect, too, Casey is much like Dred Scott. In substance and rhetoric, the opinion is distressingly authoritarian. Casey’s goal was to make Roe harder, if not impossible, to overrule and to make it harder to question the authority of the Court to make social policy. Casey was the taken-as-given starting point for the partial-birth abortion decisions of 2000 and 2007 (Carhart I & II),
the first of which struck down a state law, and the second of which
upheld a federal law, banning abortion by the method of inducing birth
and puncturing the skull during a partial live-birth delivery, but each
of which presumed an unqualified “right” to obtain an abortion at any stage of pregnancy by some method or other. Casey also
accounts in large measure for the Court’s acceptance of
substantive-due-process judicial lawmaking in other areas of
controversy, like same-sex sexual relations (Lawrence v. Texas, 2003) and assisted suicide (Washington v. Glucksberg, 1997). So long as it stands, Casey will continue to generate further wrongs and obstruct their correction.
Casey’s Future: The Moral Imperative of Principled Resistance
Will Casey fall in our lifetimes? The outlook is not especially rosy. After twenty years, only one justice in Casey’s majority, Justice Kennedy, remains on the Court. Yet the decision remains as secure as ever. Accounting for swaps, four new pro-Casey justices (Ginsburg, Breyer, Sotomayor, and Kagan) have replaced the departed four members of Casey’s majority (Blackmun, Stevens, O’Connor, and Souter). Likewise, there remain four likely votes against Casey—two Casey dissenters (Scalia and Thomas), and two new justices (Roberts and Alito), whose views probably track closely those of Casey’s two other dissenters (Rehnquist and White, both of whom had dissented in Roe in 1973). The lineup is thus still 5-4, in favor of Casey.
There is, moreover, a limit to how much optimism may be reposed in the
prospect of future judicial appointments: it assumes favorable results
in politics (in the presidency and Senate), favorable opportunities for
favorable appointments, favorable results in politics again (in the
confirmation process), favorable occasions for reversing Roe and Casey, and then favorable judicial politics and character. The contingencies are daunting. (Many had, with reason, counted seven probable votes to overrule Roe when Casey came
before the Court, including O’Connor, Kennedy, and Souter, following
twelve years of pro-life presidents appointing five new members to the
Court.)
It is therefore important to fundamentally de-legitimize the Casey
decision, to confront it head-on and deny its authority as
constitutional law, and further, to challenge directly and undermine the
pretensions to unquestionable authority over the Constitution made by
the Court that rendered it. If Roe and Casey are not sound
expositions of the Constitution, their authority should be repudiated by
all other actors in our constitutional system. It is the shared,
sworn duty of the other branches of government to interpret the
Constitution—it is not the province of the Court alone—and it is their
duty to check, and resist, such egregious judicial violations of the
Constitution. Roe and Casey should be declared
unconstitutional, forthrightly and unequivocally, and declared therefore
to be of no legitimate authority. The decisions should be resisted with
all the legitimate constitutional powers at the disposal of the
president, the Congress, the lower courts, state officials, voters,
jurors, and citizens.
This requires exploding the myth of judicial supremacy that has so
infected our constitutional discourse. The Constitution specifies constitutional supremacy,
not judicial supremacy; it assigns supreme interpretive authority to no
one branch or institution of government. Just as Lincoln denounced Dred Scott and declared that it could not bind the nation, Casey must be denounced and declared not to be binding law.
To achieve this aim, it is essential simultaneously to restore the Supreme Court’s legitimacy by replacing pro-Casey justices with those who reject the case. (It goes without saying that new Casey-collaborator judicial nominees should be rejected.) Casey’s rejection should be the sine qua non
of judicial respectability—a legitimate litmus test for all further
judicial appointments. A broad range of substantive views, on a broad
range of issues, may be tolerable and even desirable among judges, as a
general matter. But support of Roe and Casey should be viewed as outside the range of reasonable disagreement about the meaning of the Constitution, just as Dred Scott and Plessy are now properly so viewed.
Almost all of the Supreme Court’s greatest atrocities eventually have come to be rejected, one way or another—Dred Scott, Plessy, Lochner, Korematsu, Debs, and Gobitis. This
in itself is somewhat encouraging. Atrocious decisions may endure for a
generation or more, but our constitutional system has a way, usually,
of working itself pure. Planned Parenthood v. Casey is at the top of the list of all-time constitutional atrocities. At twenty, Casey has lived too long a life and caused too many millions of deaths. Casey belongs on the pile of cases whose names are now synonymous with judicial infamy.
Michael Stokes Paulsen is University Chair and Professor of Law
at the University of St. Thomas, in Minneapolis, and co-director of its
Pro-Life Advocacy Center (PLACE). This two-part series was adapted from a
law review article published in the Notre Dame Law Review, titled “The Worst Constitutional Decision of All Time.”
