The Supreme Court’s recent Casey decision on abortion is a memorable example of sociological balderdash. The joint decision began, “Liberty finds no refuge in a jurisprudence of doubt,” to which Justice Scalia fired back in his dissent, “Liberty finds no refuge in this jurisprudence of confusion.” Scalia’s observation becomes painfully clear when one reads the Court’s decision.

Declaring they would not overrule the “central holding” of Roe v. Wade, Justices O’Connor, Kennedy, and Souter argued that their decision was justified because some people have grown accustomed to abortion. “[F]or two decades of economic and social developments, people have organized their intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” They then weighed the cost of Roe‘s “repudiation as it would fall on those who have relied reasonably on the rule’s continued application”: “Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe‘s holding, such behavior may appear to justify no reliance claim. . . . To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity.”

Next the jurists argued that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Thus, “the reservations any of us may have in reaffirming the central holding of Roe are outweighed,” meaning they could not overturn the precedent.

To be sure, the Justices did employ legalese. They declared that the force of the principle of stare decisis compelled them to uphold Roe. Yet they did not maintain all of the Roe precedent, choosing instead to repudiate its trimester framework, while reaffirming its “central holding.”

Surprisingly, the opinion describing the central holding, rather than focusing on the famous 1973 right to privacy discerned in the “penumbra” of the Constitution, read more like one of NARAL’s television commercials. It declared “a woman’s right to choose an abortion” without “undue interference from the State.” Abortion, said the joint Justices, is a “fundamental right” protected by the due process clause of the Fourteenth Amendment, a special “liberty” not to be deprived. The “urgent claims of a woman to retain the ultimate control over her destiny and her body” are claims “implicit” in the meaning of liberty. However, rather than coming under “strict scrutiny” as with other “fundamental rights” (Justice Blackmun’s view), abortion laws are to be evaluated by a new standard established by the joint opinion, the “undue burden” test. In this manner, the joint opinion upheld most of Pennsylvania’s statutory provisions.

The Court also said that it couldn’t overturn Roe because it would be seen as acceding to public pressure, thereby jeopardizing its institutional legitimacy. “But whatever the premises of opposition may be, only the most convincing justification . . . could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure.” “So to overrule under fire . . . would subvert the Court’s legitimacy beyond any serious question.”

Also noteworthy is Justice Blackmun’s swan song. “I am 83 years old,” he wrote, “I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today. That, I regret, may be exactly where the choice between two worlds will be made.”

The verbal sparring between the joint Justices and the dissenters is remarkable. The Chief Justice decried the unsupported “generalized assertions about the national psyche.” He labeled as “undeveloped and totally conclusory” the joint Justices’ “unconventional and unconvincing notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to ‘two decades of economic and social developments’ that would be undercut if the error of Roe were recognized.” In fact, he added, “one cannot be sure to what economic and social developments the opinion is referring”: “Surely it is dubious to suggest that ‘women have reached their places in society’ in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.”

Furthermore, the Chief Justice seemed astounded that his colleagues had argued to uphold Roe because people had grown accustomed to abortion. Citing other major decisions that the Court had reversed and the long periods of time before reversals, he wrote: “However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in these cases, nor should it prevent us from correctly interpreting the Constitution here.”

Saying “the Imperial judiciary lives,” Justice Scalia castigated the joint Justices for their “contrived” doctrine of stare decisis, for claiming to uphold a precedent but revising it: “It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new keep-what-you-want-and-throw-away-the-rest version.” Rehnquist pointed out that the “unworkable” new undue burden standard “had no roots in constitutional law.”

Asserting that true “fundamental rights” could be applied by the Court only to those areas where there is longstanding American legal tradition, four Justices declared that Roe erred in construing abortion as a fundamental right. As Scalia argued, the “issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not.” He cited “two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”

To the notion that overturning Roe would be surrendering to political pressure, the Chief Justice retorted: “This is a truly novel principle. . . . Under this principle, when the Court has ruled on a divisive issue, it is apparently prevented from overruling that decision for the sole reason that it was incorrect, unless opposition to the original decision had died away.” Scalia noted that “the notion that we would decide a case differently from the way that we otherwise would have in order to show that we can stand firm against public approval is frightening.” For political pressure goes both ways: “What makes all this relevant to the bothersome application of ‘political pressure’ against the Court are twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about.”

Scalia then added: “But if in reality our process of constitutional adjudication consists primarily of making value judgments . . . then a free and intelligent people’s attitude can be expected to be . . . quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better . . . then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through their constituents’ most favored and most disfavored alleged constitutional rights . . . Value judgments, after all, should be voted on, not dictated . . . Justice Blackmun not only regards this prospect with equanimity, he solicits it.”

The average citizen sensed the truth all along—and couldn’t have said it any better.