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https://nypost.com/2022/05/06/the-firestorm-over-the-leaked-scotus- opinion-is-what-scalia-predicted/

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 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 far-sighted 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 the issue.

If there’s any doubt about that, consider the security fencing reminiscent
of the days after Jan. 6, 2021, that is now going up around the Supreme
Court building. Consider the left-wing group planning protests at the
homes of conservative justices. Consider the proposal from Sen. John
Cornyn that justices get 24/7 security details.

It’s extraordinary that now, at the very least, the whiff of physical intimidation is part of the court’s deliberations on Roe.

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

In his dissent in Casey, Scalia analogized the court’s jurisprudence on abortion to its decision in 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 that had banned slavery north of the 36°30' 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, the 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 short-circuited democratic decision-making and that utterly failed to create political and social
peace.

The decision was immediately viciously excoriated by opponents of slavery
in the harshest possible terms. They called into question its legitimacy
and indeed 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. (There
were indeed improprieties around the court’s deliberations.)

Scalia invoked a portrait of Roger Taney at Harvard Law School by the
great painter Emanuel Leutze. “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.” Scalia imagined him despairing at what his ambitious ruling in Dred Scott had
wrought, and warned the court against making the same mistake again.

“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.”

Rather, Scalia argued, “by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political
forum that gives all participants, even the losers, the satisfaction of a
fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the court
merely prolongs and intensifies the anguish.

“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.”

The court should have listened to Scalia the first time. Now, Alito’s
opinion opens the way for it, finally, after one of the most catastrophic misadventures in its history, to heed his wisdom.

Twitter: @RichLowry



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Under Barack Obama's leadership, the United States of America became the
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queer liberal democrat donors.

President Trump boosted the economy, reduced illegal invasions, appointed dozens of judges and three SCOTUS justices.

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