The lesson of Casey is that the nomination and confirmation of judges with a sound judicial philosophy is an essential foundation stone of a culture of life.
Twenty years ago, the Supreme Court announced a landmark decision, Planned Parenthood v. Casey. Casey concerned whether Roe v. Wade, the 1973 decision establishing a constitutional right to abortion, would be overruled or would remain the law of the land. What Casey did, in effect, was to ratify Roe. And that effect is breathtaking–twenty more years of abortion on demand, with millions of unborn human beings dead and millions of women scarred physically, psychologically, and emotionally.
It didn’t have to turn out that way.
The political process had been churning ever since Roe was decided. Many states sought ways to limit or eliminate abortion despite Roe, and passed various kinds of restrictions. Cases contesting those regulations made it all the way to the Supreme Court on more than one occasion. In particular, in 1989, Webster v. Reproductive Health Services produced, for the first time on the Court, a 5-vote majority upholding state abortion regulations. Given that the votes in favor of Roe had been diminishing steadily from the high water mark of 7 (in Roe itself), the momentum seemed to be growing in the courts not only to uphold tighter restrictions but even to overturn Roe.
One of the states that had been encouraged to strengthen its abortion limits by the Webster decision was Pennsylvania. And it was Pennsylvania’s regulations that were the subject of the case that next reached the Supreme Court. While the Court upheld most of the Pennsylvania restrictions, what it did not do was to reverse Roe. Though it recast or abandoned many of the important aspects of Roe (e.g., substituting “substantial burden” for strict scrutiny, and apparently dropping the trimester framework for a viability standard), the majority (composed of two pro-Roe diehards and three others who will be discussed extensively below) refused to overturn Roe. (Its “reasons” for doing so have been subjected to scorching critique by many, most notably Professor Michael Paulsen.)
Many–including the majority in Casey–expected the decision to end the matter. Pro-life Americans were expected to take their pro-life convictions into the privacy of their homes and their individual consciences, and to abandon the public square.
That–thank God–did not happen. Instead, building on the Court’s decision upholding most of Pennsylvania’s restrictions (despite its incoherent reasons for doing so), pro-life forces strove to enact legislative restrictions.
For example, Casey was the first decision allowing detailed informed-consent requirements. So fifteen states since Casey enacted such laws. Fourteen other states, which had such laws before Casey, significantly strengthened them afterwards.
Similarly, since Casey upheld Pennsylvania’s parental involvement law, eighteen states enacted such laws after Casey. Eight other states strengthened previously enacted laws in this area.
Likewise, expanding upon notions of informed consent, in the past decade, twenty-one states have enacted ultrasound requirements.
It is essential to note that these laws were not enacted to make peace with a landscape of pro-abortion conquest in the wake of Casey. Rather, these laws were enacted to hem in abortion, to show it for the evil it is, and to limit it as much as possible, as soon as possible.
But they aim for more. They aim to overturn the abortion-on-demand regime inaugurated by Roe and affirmed (and entrenched) by Casey. They aim to do so by expanding the few openings left by Casey. They aim to identify within Casey the seeds of its own destruction. And they aim to bring that seed to fruition through a decision of the same body that inaugurated the abortion regime, the Supreme Court.
There is no reason to believe this cannot be accomplished. Roe and Casey are incoherent as matters of constitutional interpretation. The implied-privacy-right basis of Roe is not taken seriously anywhere, even within the pro-abortion legal academy. The “individual liberty” basis of Casey (“At the heart of liberty is the right to define one’s own concept of existence, of meaning , of the universe, and of the mystery of human life”) is similarly ridiculed (as is its conclusion-begging reliance on stare decisis). At some point, a majority of the Court will admit that there is no right to abortion under the Constitution, and return the matter to the state legislatures.
That seems an unassailable conclusion.
And, yet, such a conclusion seemed unassailable in 1992 as well. I believe that if we do not learn the essential lesson of Casey, we will be as disappointed in the future as we were in past.
Casey was a 5 to 4 decision by the Court. That is, Roe was upheld by a single vote. There were four votes to directly overrule Roe. After twenty years struggling to right the wrong that was (and is) Roe, the pro-life cause had four votes to overturn it. And then something happened.
Three justices blinked.
Three justices joined with two unabashed supporters of Roe to uphold it.
Three justices refused to follow the logic of their own evaluation of Roe, all but explicit in their opinion in Casey, that Roe was wrong as a matter of constitutional interpretation, and strike it down. Rather they demanded that pro-life Americans accept what the Court had wrought in Roe as something that could never be overturned because to do so would be to damage the institutional prestige of the Court. They asserted that to recognize a wrong and to correct it would damage the Court’s role and American democracy, but failing to do so would maintain the Court’s prestige and essential role.
That, it must be remarked, is an astounding proposition, hardly one that most Americans would accept or respect. Ordinary Americans do not, I believe, respect the Court merely because it speaks. Rather, they respect it because they believe it speaks truth–it elucidates what the Constitution actually means. The view of what we might call “the Casey Three,” however, reflects a view of the judiciary that is truly imperial–if the Court says it, whether it is true or not, Americans must obey it.
Who were the Casey Three? None of them was a holdover from Roe. Indeed, they were all confirmed in the years after Roe, when the unsoundness and injustice of Roe were very much a part of the cultural and political debate. All three justices were nominated and confirmed under Republican presidents–Sandra Day O’Connor (nominated by Ronald Reagan in 1981 and confirmed by the Senate by a vote of 99-0); Anthony Kennedy (nominated by Reagan in 1987 and confirmed by the Senate by a vote of 97-0); and David Souter (nominated by George H.W. Bush in 1990 and confirmed by the Senate by a vote of 90-9).
Clearly, what matters is not the political party that supports the judge. What matters is the judicial philosophy of the judge. Does he take the view of the Casey Three that the Court is free to “find” substantive rights in general terms such as “liberty”? Does he agree with them that once the Court has spoken the issue is closed? That it is all but impossible to reverse clearly wrong rulings on the most pressing issues of the day? Or does the judge take a restrained view of his role, one consistent with the original intentions of the Framers, one that corrects wrong decisions because they are wrong, because they are not required by the Constitution?
The decision, however, by upholding some state statutes restricting abortion, may contain the seeds of its own destruction because it enabled citizens to enact regulations of abortion, regulations that will continue to be challenged in the federal courts, giving subsequent Supreme Courts the opportunity to reverse both Roe and Casey. However, that will not happen if future justices are confirmed whose judicial philosophy is like that of the Casey Three, a freewheeling interpretation of constitutional provisions combined with an ironclad requirement that the people submit to the Court’s interpretations, even when wrong.
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The lesson of Casey is that the nomination and confirmation of judges with a sound judicial philosophy is an essential foundation stone of a culture of life. That culture cannot be built if judges feel themselves empowered to knock it down. Our Constitution nowhere recognizes a right to rule by “enlightened” judges. The people we select for high judicial office must understand this and their judicial philosophy must reflect it. We forget this lesson from Casey not only at our peril, but at the peril of millions of unborn children and their mothers.