Friday marks the twentieth anniversary of perhaps the greatest judicial atrocity in American history. Twenty years ago, on June 29, 1992, the U.S. Supreme Court announced its decision in Planned Parenthood v. Casey. By the narrowest of margins (5-4), and with two justices in the majority switching from previously stated positions, the Court reaffirmed, with minimal alterations, the essentially absolute right to abortion the Court created nineteen years earlier, in Roe v. Wade.
Casey is clearly one of the most significant Supreme Court cases of all time, and arguably the Court’s most reprehensible decision ever. In today’s article, I explain why Casey was an enormously important decision—irrespective of one’s position on abortion. In tomorrow’s piece, I set forth criteria for judging the awfulness of awful Supreme Court decisions, and conclude that Casey should be regarded as the very worst constitutional decision in the Court’s history. For in every way that Casey is stunningly important, it is also stunningly wrong and horrible in its consequences.
Casey’s Colossal Stakes
First, consider Casey’s consequences for the abortion question alone, setting aside the decision’s doctrinal significance in other respects. No matter one’s views on abortion, Casey’s stakes are enormous. From one perspective—the perspective of the majority opinion—the decision concerned the lives and liberty of millions of American women each year, for whom the right to abortion is (the majority said) “central” to their functioning as full and equal members of society and to their very ability to define their lives, their identities, “meaning,” “the universe,” and the “mystery of human life.” (This may sound a bit extravagant, but you can look it up: this is what the joint opinion for the Court, written by Justices O’Connor, Kennedy, and Souter, says.)
From the other perspective, the stakes of Casey are of course equally enormous: the decision implicates the lives—the very existence—of approximately a million and a half human beings each year. That is roughly the number of legal abortions performed annually in America. Multiplied by twenty years, Casey is responsible, as a legal foundation for widespread abortion, for the deaths of some thirty million human lives, outdistancing as of this year Roe’s own horrible consequences in this regard. Roe stood, on its own, for nineteen years, and was teetering before Casey reaffirmed it and sought to entrench it permanently in the nation’s constitutional order. However much one might fault Roe for creating a right to abortion back in 1973, Casey bears that fault today. Casey, not Roe, is responsible for the state of abortion law and its consequences for the past two decades, and extending into the indefinite future.
Casey’s Pernicious Doctrine of Stare Decisis
Unless, that is, one could say that the Court in Casey had little or no choice in the matter – that is, that the outcome in Casey was foreordained, simply because Roe had been decided the way it was nineteen years earlier.
Indeed, such an extreme claim was central to the Court’s reasoning in Casey. The Court claimed, absurdly, that the doctrine of stare decisis—the judicial policy of (generally) adhering to judicial precedent—more or less compelled reaffirmation of Roe. The crux of Casey’s analysis, as a matter of legal doctrine, was that Roe should be adhered to “whether or not mistaken,” “with whatever degree of personal reluctance any of us may have,” “even on the assumption that the central holding of Roe was in error,” because of the perceived damage it would do to “the people’s acceptance” of “the Court’s legitimacy” and thus its “power” to “speak before all others” for the Constitution and “declare what it demands.”
The Court’s authority would be compromised if the Court were to “overrule under fire” even a concededly erroneous decision, if the decision was a “watershed” on which the Court had “staked its authority,” and in which the Court had “called the contending sides of a national controversy to end their national division” and “accept” the Court’s resolution. Otherwise “the people’s belief in themselves” and the “Nation’s commitment to the rule of law” as embodied in the Supreme Court’s authority would be impaired, which would be “a terrible price” to pay for correcting a prior error.
In short, even assuming that Roe’s decision was badly wrong, Casey thought that upholding it was required by stare decisis in order to vindicate the Court’s authority, power, institutional prestige, and public acceptance.
This was a stunning proposition about the role of the Supreme Court in our constitutional system. Even for a Court grown accustomed to sweeping assertions of its power over all other branches of government, Casey was itself a “watershed” in claiming that maintaining the “substance and perception” of legitimacy in order to preserve “the people’s acceptance” of the Court’s authority was such a priority that it could dictate the Court’s adherence to a precedent it otherwise thought wrong. The Court’s statements on this theme were repeated and thumped at great length, in an uncommonly windy and pompous opinion. Assuming the Court’s declarations apply to constitutional law generally—and were not merely a this-day-and-this-train-only special ticket for Roe and abortion—they are remarkable to say the least.
Further, to justify so brazen a claim of judicial supremacy over the Constitution, Casey constructed what one could rightly call a Grand Unified Theory of Stare Decisis in constitutional law. This in itself was a huge jurisprudential development. Somewhat astonishingly, a Court that had been in business since 1789, and that had often invoked the presumed authority of precedent, had never, until 1992, advanced a full-blown theory as to exactly why a prior constitutional decision, unsound when rendered at time T1, becomes in effect part of the Constitution at time T2, notwithstanding the Court’s conviction that the precedent was erroneous. (One does not need a doctrine of stare decisis to explain why a Court should follow a precedent that the Court believes was right. A right interpretation of the Constitution should be followed because it was a right interpretation of the Constitution. Stare decisis adds genuine decision-altering weight only if one thinks a precedent was a wrong interpretation of the Constitution. If a precedent is thought right, stare decisis is a pure makeweight.)
Taken seriously, Casey’s explication of stare decisis has dramatic implications for all of constitutional law. But of course the doctrine of stare decisis is not taken seriously. The Court follows its precedents—except when it doesn’t. In 2003, in Lawrence v. Texas—to choose just one of over two hundred possible examples—the Court overruled Bowers v. Hardwick (1986) on the question of whether the Due Process Clause entails a right to engage in homosexual anal sex as a fundamental aspect of personal liberty. Bowers had said no. Lawrence said yes. The majority waved away the matter of stare decisis: “Bowers was not correct when decided and it is not correct today” and therefore “ought not to remain binding precedent.” Similarly, the Court, not long after Casey, overruled two major decisions concerning the death penalty, on the ground that they were, on further reflection, wrongly decided. (Atkins v. Virginia, 2002; Roper v. Simmons, 2005) Indeed, in Casey itself the Court overruled two prior abortion decisions and modified (slightly) its abortion-law criteria—on the ironic ground that stare decisis required it.
It is hard to avoid the conclusion that, in the Court’s practice, stare decisis is a manipulable, seemingly arbitrary, multi-factor balancing exercise that can point to any desired result in any given case. It is judicial hand-waving. Indeed, under the Court’s formulation, the current doctrine of stare decisis does not even require adherence to the current doctrine of stare decisis. The doctrine is entirely circular, a hollow tube. (For more on this point, readers may consult my law review article, “Does the Supreme Court’s Current Doctrine of Stare Decisis Require Adherence to the Supreme Court’s Current Doctrine of Stare Decisis?”)
Still, the rhetoric of stare decisis has become, over the last twenty years, more central to constitutional discourse than ever, with judicial confirmation hearings focusing as much on a nominee’s theory of precedent as on his or her substantive views about the Constitution. What formerly was argued on the merits—“Do you think the Constitution recognizes a Due Process Clause “privacy” right to abortion?”—is now argued as if it is a matter of judicial restraint, role, or even ethics: “Do you believe in precedent and the value of stare decisis?” The constitutional debate about abortion is now conducted in code, one giant (misleading) step removed from the merits.
This is what the majority in Casey intended. The opinion strives not only to justify the reaffirmation of Roe, but further to delegitimize criticism of it—to entrench the decision against all further attempts to reverse it and to depict such efforts as threats to the idea of the rule of law. Casey seeks to provide a veneer of pseudo-legal respectability to adhering to Roe.
Casey’s Embarrassing Embrace of Substantive Due Process
All of this—entrenching abortion rights, proclaiming judicial supremacy for even erroneous decisions, ratcheting-up and manipulating stare decisis—is more than enough for one case. But there is more yet. Almost overshadowed is the significance of Casey’s re-adoption of the doctrine of substantive due process, the discredited and disreputable notion that courts may discern unspecified substantive rights from the due process requirement that government not deprive persons of life, liberty, or property “without due process of law.” In a less monumental case, the Court’s explicit embrace of substantive due process would have been the banner headline, for it is jarring in its own right.
The doctrine owes its roots to the infamous 1857 decision in Dred Scott, which created a due process right to own slaves as one’s property in federal territories, striking down the Missouri Compromise’s prohibition of slavery in certain such territories. Dred Scott is, rightly, one of the most reviled decisions in the Court’s history; its substantive due process holding is universally thought not merely untenable but outrageous. The decision fanned the flames leading to the Civil War. Lincoln, among others, condemned the decision and famously argued that it was not binding on the Nation as a whole. (Interestingly, in Dred Scott, as in Casey, the Court thought it was declaring a final settlement for the nation concerning a divisive issue, invoking its supreme authority in an epic opinion, calling upon the competing sides to accept the Court’s resolution in the name of the rule of law.)
The Civil War killed Dred Scott’s illogic. But substantive due process enjoyed its unlikely second heyday for thirty-odd years in the early twentieth century. The case most closely identified with the doctrine is Lochner v. New York (1905). Lochner embraced freewheeling judicial activism, authorizing judges to strike down laws that in their reasoned judgment unduly burdened economic liberty. Once again, the textual hook was “due process.” Lochner is thoroughly disapproved today. The doctrine of substantive due process was declared dead (again) by a dozen cases in the 1940s through the early 1960s.
Yet the Court revived it a third time, in the late 1960s, adding the label “privacy.” Roe v. Wade explicitly grounded the right to abortion in this most unlikely—and, one would have thought, historically embarrassing—of doctrines. The debate over Roe’s use of the discredited notion of substantive due process raged for two decades, becoming the central issue of academic and judicial constitutional argument.
Casey gave up on trying to kill Substantive Due Process—a major jurisprudential turn of events. “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment,” the majority said (with Dred Scott and Lochner echoing eerily in the background). “The controlling word” in the Due Process Clause, the Court said, with unconscious irony, was not process, but liberty. “Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty,” the Court conceded, “for at least 105 years”—that is, dating to Lochner’s immediate precursors and perhaps earlier—“the Clause has been understood to contain a substantive component as well.” Because that substantive component was less than clear in the text—its “boundaries are not susceptible of expression as a simple rule,” the Court said in a decided understatement—it thus became “inescapable” that “adjudication of substantive due process claims” would be up to the Court’s “reasoned judgment.”
There could be no better description of Lochner. The authors of the joint opinion could not quite bring themselves to say that each of their “reasoned judgments” would have thought Roe correct, as an original matter, in finding a substantive liberty of abortion hidden within the insusceptible boundaries of the Due Process Clause. But there was nothing fundamentally wrong with such a conclusion, the majority concluded, and stare decisis could carry the ball the rest of the way to the goal line of reaffirming Roe.
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At every level, then, 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.
My criteria for assessing the failures in these cases—for evaluating what makes a Supreme Court decision among the worst of all time, and why Casey ranks at the very top of the Court’s titanic constitutional disasters—will appear tomorrow.