Roe v. Wade and the Dred Scott Decision: Justice Scalia's Peculiar Analogy in Planned Parenthood v. Casey

Abstract

At the close of his dissenting opinion [in Planned Parenthood v. Casey], Justice Scalia repeatedly likens the Supreme Court's decision in Roe to its holding in the Dred Scott case. It is a startling, disorienting analogy, saturated with more than a century of political meaning. By bringing one of the most significant freedom-expanding decisions in American history into association with the Court's most racist and pro-slavery decision, Justice Scalia dresses up and takes to Court the pro-life movement's pet analogy between the nineteenth-century right to own slaves and the twentieth-century right to have an abortion. Justice Scalia's comparison of Roe and Dred Scott, however, is as fallacious a claim about American constitutional doctrine and method as the comparison between slavery and abortion is an insidious perversion of American history. In fact, while the methodology of the Supreme Court's decision in Dred Scott bears almost nothing in common with Roe, it turns out to be nearly identical to Justice Scalia's own elaborated method of constitutional analysis: originalism based on strict textual analysis and a study of relevant social tradition. Roe and Dred Scott are, in fact, opposites, not only in methodological and jurisprudential terms, but as representations of specific visions of justice and liberty in American history. Justice Scalia's analogy amounts to an attack on the importance of the Fourteenth Amendment to the United States Constitution, and an assault on the idea of human freedom as the organizing spirit and meaning of the American Constitution.

Keywords: Supreme Court, constitutional analysis, Justice Scalia