Friday, June 29, 2012

'The worst constitutional decision of all time'

No, not yesterday's Obamacare ruling (whatever one thinks of that decision). "The very worst constitutional decision in the [U.S. Supreme] Court's history," argues Prof. Michael Stokes Paulsen of the University of St. Thomas School of Law in Minneapolis, is Planned Parenthood v. Casey (1992), in which the Court reaffirmed (with slight modification) the right to abortion invented in Roe v. Wade (1973). Today is the twentieth anniversary of the Casey decision.

Casey justified a continuation of Court-imposed nationwide abortion on demand -- despite devastating constitutional criticism -- by (1) vainly worrying about the Court's image if it admitted a past mistake, (2) irrelevantly waxing on about "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," and (3) arrogantly "call[ing] the contending sides of a national controversy to end their national division by accepting" the Court's dictate. Twenty years later, the American people are even less willing to "accept" the Court's usurpation of their right to democratically decide abortion policy.

Paulsen writes at Public Discourse:
At every level ... Planned Parenthood v. Casey is an incredibly significant decision -- its effects, its methodology, its substantive doctrine, its conception of the judicial role and of judicial authority, and its conception of what constitutes the rule of law. And, sadly, at every level at which the case is hugely significant, it is hugely and horribly wrong. Indeed, Casey is so extremely and extravagantly wrong that it is possible to compare Casey's wrongness with the wrongness of some of the Court's most incredibly wrong decisions in its history and reach the depressing conclusion that Casey is the worst of the worst, combining all the worst features of such cases as Dred Scott, Lochner, Plessy v. Ferguson, Korematsu v. United States, and Roe v. Wade.
Paulsen's piece -- adapted from his article in the Notre Dame Law Review -- is divided into two parts, here and here.