Recently, Cato Institute Senior Fellow for Constitutional Studies Walter Olson took Senator Rick Santorum to task for the following exchange at Thursday’s presidential undercard debate:
HEMMER: Next question on the U.S. Supreme Court. It’s been 42 years, Senator Santorum, since Roe vs. Wade. Many consider in this country to be a case of settled law. Recently the U.S. Supreme Court ruled on same-sex marriage. Is that now settled law in America today?
SANTORUM: It is not, anymore than Dred Scott was settled law to Abraham Lincoln who in his first inaugural address said it won’t stand. And they went ahead and passed laws in direct contravention to a rogue Supreme Court. This is a rogue Supreme Court decision, just like Justice Roberts said. There is no constitutional basis for the Supreme Court’s decision.
Olson fairly notes there are major differences between Dred Scott and Obergefell v. Hodges, even if he misses that Santorum was not equating the underlying policies of the cases (same-sex marriage and slavery), but merely using SCOTUS’s worst decision ever to establish the Court’s fallibility. But the real problem comes in his headline: “No, There Isn’t A ‘Dred Scott Case’ of Our Times.”
Olson doesn’t merely deny that Obergefell is that case; he suggests there is no such case in effect today. Pardon me, but have you forgotten about Roe?
It came up in the very question Olson is talking about, yet he mentions it nowhere in his post:
It’s another thing to claim a given decision will make it impossible for republican government itself to function in the future in some sort of “comprehensive” way.
It happens that Dred Scott is one of the very few Supreme Court decisions you could describe without hyperbole as doing this, since in a nation closely divided between slave and free, it entrenched the slave power in a way that tended to paralyze political action in general. In the cataclysm that followed, the survival of republican government indeed was in peril […]
The Supreme Court reports are littered with rulings that are poorly reasoned, wrongly decided or both, some of which have had dire consequences for the nation. But for the reasons Sandefur suggests, most sensible commentators refrain from lumping these decisions in with Dred Scott. One is that they hesitate to liken other evils to slavery. The other is that they hesitate to liken other episodes of social division to the American Civil War.
It is remarkable that even as Planned Parenthood’s barbarity is being laid bare in a controversy so horrifying that it’s forcing pro-choice and centrist observers to question their values and inspiring powerful, direct analogies between the Center for Medical Progress’s exposure of the abortion business and William Wilberforce’s exposure of the slave trade, anyone can ponder whether there are “Dred Scott cases of our times” and ignore the case that unleashed the slave trade’s spiritual successor on America.
Olson is correct about one major aspect of Scott that Roe does not share: slavery was intertwined with geographic lines and economic interests in ways that abortion is not, making its role in igniting war unique. But it’s foolish to suggest that one difference trumps multiple similarities, or historical fallout matters more to such comparisons than the decisions themselves.
And on that score, it’s undeniable that Roe is indeed the Dred Scott of our times. Both denied basic constitutional protections to segments of the population by denying their humanity. Both justified treating certain humans as property. Both limited how much states could recognize the victims’ personhood within their own borders. Both justified themselves by misrepresenting how much recognition the victims enjoyed under the laws of prior generations.
And while Roe didn’t spark a literal civil war, it has left America bitterly divided between life and abortion, preventing people from working through the issue democratically, free of the “women’s rights” hysteria the Supreme Court infused it with—in much the same way Dred Scott destroyed the possibility of peacefully, gradually abolishing slavery, as Abraham Lincoln once hoped.
Far from being in the course of “sensible commentators,” denying that the twenty-first century has its own Dred Scott case requires ignoring the past four decades of legal history.
Roe v. Wade absolutely is that case.
