Monday, October 31, 2005
Scalito and Dred Scott
The Volokhmort blog is buzzing about Scalito's concurring opinion in the case of Planned Parenthood v. Farmer, 220 F.3d 127, 152 (3d Cir. 2000), which it contrasts with his better known opinion in Planned Parenthood v. Casey. Presumably, the purpose of this buzz is to give some reassurance about Scalito's deference toward precedent.
A little background: while the opinions in Planned Parenthhod v. Farmer were being prepared, but before they were published, the SCOTUS issued it's decision in Stenberg v. Carhart, a case which everyone agrees controls Planned Parenthhod v. Farmer. Here is the opening paragraph from Scalito's concurrence in Planned Parenthood v. Farmer:
I do not join Judge Barry's [majority] opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000).
The real Scalia is known for the choice first sentence in his dissent in Stenberg v. Carhart:
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott.
Stenberg v. Carhart
So does Scalito believe that Dred Scott was a good decision, or doesn't he?
# posted by Neo-Malthus @ 12:29 PM 
