Justice Scalia was right — abortion not Supreme Court issue

Justice Antonin Scalia was among the most prescient Supreme Court justices in American history, and the firestorm over the leak of Justice Samuel Alito’s draft opinion overturning Roe is a reminder of it.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 Supreme Court decision upholding (and amending) Roe v. Wade, the justices in the majority believed they could settle once and for all the dispute over abortion.

Scalia thought this was outlandishly wrongheaded and said so in a dissent that looks farsighted 30 years later. Not only did the Court fail to calm the political waters on abortion, it made itself central to the political and moral argument over it.

If there’s any doubt about that, consider the security fencing now going up around the Supreme Court building. Consider the leftwing group planning protests at the homes of conservative justices. Consider the proposal from Sen. John Cornyn of Texas that justices get 24/7 security details.

Scalia might be surprised by that, but not that abortion has remained a point of contention, despite the Court’s preposterous belief that it could make itself the final arbiter.

In his dissent in Casey, Scalia likened the Court’s jurisprudence on abortion to Dred Scott v. Sandford, the notorious 1857 case in which the Court denied the petition of a slave named Dred Scott for freedom.

The Court issued a sweeping decision, declaring unconstitutional the Missouri Compromise of 1820 that had banned slavery north of the 36th parallel in the Louisiana Purchase. It did this, in part, because it thought it could forge a settlement on slavery that had eluded the political branches.

Instead, Chief Justice Roger Taney made himself infamous for a decision that, like Roe and Casey, was wrongly decided, that entrenched and extended a profound social wrong, that shortcircuited democratic decisionmaking, and that utterly failed to create political and social peace.

The decision was immediately excoriated by opponents of slavery. They called into question its legitimacy and the legitimacy of the Court itself. Serious and sober-minded men like Abraham Lincoln and William Seward advanced conspiracy theories for how the Court could have arrived at such an atrocious place.

Scalia invoked a portrait of Roger Taney at Harvard Law School. “He sits,” Scalia wrote, “facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment.”

“It is no more realistic for us in this litigation than it was for him in that,” Scalia noted, “to think that an issue of the sort they both involved — an issue involving life and death, freedom and subjugation — can be ‘speedily and finally settled’ by the Supreme Court …”

“We should get out of this area,” he urged, “where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”