This is totally off the cuff, but here goes: Scalia appears to have made two primary points: (1) the principle of stare decisis, or respecting rulings made in the past and overturning them only after careful consideration and when genuinely warranted due to some significant change, was offended in overturning Bowers v. Hardwick
, which was decided "a mere 17 years ago."
Scalia really got his knickers in a twist about this - check it out (and this is just one of many possible examples):
|I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:
" Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] ... its decision has a dimension that the resolution of the normal case does not carry... . [T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.
Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 15-16. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven 'unworkable,' " Casey, supra, at 855.
Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions, ante, at 15; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 16. The problem is that Roe itself--which today's majority surely has no disposition to overrule--satisfies these conditions to at least the same degree as Bowers.
He indignantly goes on at some length following the preceding quote further drawing alleged connections between the status of Bowers
, as he claims it was described by the majority, and the status of Roe v. Wade
And he concludes that section:
|To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.
Scalia's multiple invocations of Roe v. Wade
indicate, to me, that he may fear that Lawrence
may bolster defenses against overturning a woman's right to an abortion. Alternatively - or perhaps additionally - he's hoping that his dissent will eventually provide a framework for overturning Roe
(what remains of it, that is).
Scalia also believes the Court wrongly decided that the TX law in question constituted an unconstitutional proscription on individual liberties. He wrote:
|Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 6 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 13 (" ' These matters ... are central to the liberty protected by the Fourteenth Amendment' "); ante, at 17 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:
"No state shall ... deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).
|having failed to establish that the right to homosexual sodomy is " 'deeply rooted in this Nation's history and tradition,' " the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 18.
He believes that the Court's holding that "the Texas statute ... furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual" effectively strikes down any attempt at legislating morality, and as such is absolutely contrary to a time-honored tradition of jurisprudence in this country (and elsewhere). He claims it'll undermine any attempt to legislate against, say, heroin use, prostitution and the like (a bogus claim, for the most part), as it effectively eliminated a state's ability to legislate morality in criminalizing victimless acts such as sex between consenting partners, smoking pot and the like without violating the Constitution in doing so.
Gotta go again. SummerLover, you must have some thoughts on all this - have you had much chance to read the opinion, concurrence and dissents? I've been working on something else all day and haven't had a chance to do any reasonable sort of analysis.