Grrrrrrrrrr: Scalia Rewrites History - Claims 5-4 Bush v Gore Decision - ‘Wasn’t Even Close'

[BzaDem]

45. Someone should tell Scalia: Roe vs. Wade was also "a long time ago," and it was also 7-2.

What did Scalia have to say about that old, 7-2 decision? From his dissent in Casey (reaffirming Roe vs. Wade in 1992):

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits 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. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case--its already apparent consequences for the Court, and its soon to be played out consequences for the Nation--burning on his mind. I expect that two years earlier he, too, had thought himself "call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution."

It is no more realistic for us in this case, than it was for him in that, 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, as President James Buchanan in hisinaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, 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.

So let's get this straight. Bush v. Gore, an old 7-2 case that most certainly "foreclosed all democratic outlet" for resolving the issue (the US Congress), and "banished the issue from the political forum that gives all... a fair hearing," is a decision that people should "get over."

But Roe v. Wade, an old 7-2 decision that Scalia accuses of doing the same thing, is comparable to Taney's decision in Dred Scott vs. Sanford (holding that African Americans have "no rights which the white man was bound to respect," and mandating that slavery be extended to the territories).