Scalia explains his dissenting opinion to the overturning of Lawrence v. Texas by comparing the case to Roe v. Wade in three areas. He looks at stare decisis, fundamental rights, and legal moralism.
There are three things that need to be proven before the court can overrule a decision in regards to stare decisis. 1) Its foundations have been eroded by subsequent decisions; 2) it has been subject to substantial and continuing criticism; 3) it has not induced individual or social reliance that counsels against overturning it. The court ruled that all of these requirements have been met in Bowers; therefore they overturned Lawrence v. Texas.
The court now claims that Planned Parenthood v. Casey "casts some doubt" on the ruling of Bowers, but Scalia doesn't believe that is strong enough to meet the first requirement. There are other cases, such as Roe v. Wade, that truly have been eroded. It has been eroded by Planned Parenthood v. Casey, both of which have been eroded by Washington v. Glucksberg. Therefore, according to Scalia, if the courts say that Casey eroded Bowers, they will not be able to argue against Roe also being eroded.
The weakest part of his argument is his second point. He denies that there has been "disapproval of it's reasoning in all aspects." The court names two books that argue against Bowers' ruling. Scalia downplays the significance of the books, I assume because there are only two, but I think that they are supported by many Americans who feel the same way. I believe the court when they said that there was "substantial and continuing criticism," because I don't think the majority of people in our society would agree with restrictions on such a personal choice. Whose opinion is important enough and how many books need to be published in order to decide if there is enough criticism? Was the court referring to society's attitude as a whole? This penumbra is one on which I... [continues]
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