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April 26, 2007



I hope I'm not the only one who found the remarks of the revered Oliver Wendell Holmes to be repulsively barbaric.

The 2nd link on Pierce Butler himself was also interesting. I'm guessing - but am far from certain - that he was not the 1st Catholic justice on SCOTUS. Anyone know who that was ?

It would be interesting to read contemporary accounts in newspapers or scholarly journals regarding the decision, especially in reference to Butler's dissent from the majority opinion.

Donald R. McClarey

Holmes is the most over-rated justice in US jurisprudence. I enjoy the style and conciseness of his opinions, and generally support his philosophy of judicial restraint, but more than a few of his opinions were appalling such as this one. He was a total atheist and his philosophy of life was basically nihilist.

The unjustly obscure Pierce is one of my judicial heroes. His sharp skepticism of government might well have been the basis for his dissent. Here is an article on him from Conservapedia:

"Pierce Butler (1866-1939) was a Supreme Court Justice. Appointed by conservative President Warren G. Harding, Butler served on the U.S. Supreme Court from 1923 to 1939. He was a conservative Democrat picked by a Republican, and was opposed by liberals at the time.

Butler became one of the so-called "Four Horsemen" who repeatedly invalidated portions of President Franklin D. Roosevelt's New Deal. The unwillingness of Justice Butler and the others to capitulate to the President's desires led Roosevelt in 1937 to propose his ill-fated plan to pack the Court with additional justices sympathetic to his agenda. He never fully recovered from the intensively negative reaction of both parties in rejecting his scheme.

Perhaps intimidated, several of the Four Horsemen soon retired, enabling President Roosevelt to replace them and attain the judicial majority he sought. But Butler did not give his seat to President Roosevelt voluntarily: Butler served until his death in 1939.

Justice Butler's dissent from the famous wiretapping case of Olmstead v. United States, 277 U.S. 438 (1928) opinion demonstrated his insight and provides a unique opportunity to compare him with the more liberal Justices Oliver Wendell Holmes with Louis Brandeis.

Olmstead had been convicted of conducting massive bootlegging in Washington State, in violation of Prohibition. His business sold up to 200 cases of liquor a day, garnering more than two million dollars annually, the equivalent of about $22 million today.

Federal agents secretly wiretapped phone lines of his office in addition to several residences, documenting incriminating information to convict him. In so doing, however, federal agents violated a Washington law against secret wiretaps.

Olmstead appealed his conviction to the U.S. Supreme Court, where the presiding Chief Justice was former President William Howard Taft. Chief Justice Taft and three of the Four Horsemen, along with another justice, upheld the conviction. At the time, the court believed a literal reading of the Fourth Amendment, taking into account the framers' intent, required a physical intrusion onto the premises in question and the seizure of material items. A wiretap taking place outside the house, capturing only intangible conversations, could not fit within the literal interpretation of the Fourth Amendment conceived of by the majority.

Justice Pierce Butler dissented, finding that because "[t]he direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions" therefore "the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words." [emphasis added] And, since telephone communications can contain privileged discussions between "physician and patient, lawyer and client, parent and child, husband and wife" they belong to the participants in the same way that papers (specifically mentioned in the Fourth Amendment) might.

Justice Holmes also dissented, but not because he felt that the Fourth Amendment protected against unlawful wiretaps. Using a principle of judicial economy, Justice Holmes did not reach the constitutional issue. His dissent proposed that evidence obtained unlawfully, should be excluded, a view that was echoed in Mapp v. Ohio. opinion

Justice Brandeis's dissent invoked "man's spiritual nature," but the media prefer to quote his statement that the Constitution confers "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." Justice Brandeis provided no authority for his sweeping claim, which seem odd in the context of blatant criminal activity. Do those engaging in crime have a "right to be let alone"? Justice Douglas, in concurring with the pro-abortion decision of Doe v. Bolton, 410 U.S. 179 (1973), relied on Brandeis's sweeping assertion; so did Justice Blackmun in writing that there is a constitutional right to homosexual activity in Bowers v. Hardwick, 478 U.S. 186 (1986).

Pierce Butler, although agreeing in result with Brandeis in Olmstead, did not agree with Brandeis's sweeping claim. Butler also rejected many other mistakes of the Court of his time. Butler was the only dissenter, for example, from Justice Holmes' repugnant upholding of forced sterilization in Buck v. Bell, 274 U.S. 200 (1927). When Justice Holmes declared that "three generations of imbeciles are enough," Butler was the only Justice who objected.

Pierce Butler had been outspoken against liberal professors at the University of Minnesota prior to his nomination. Labor and progressive groups and even his own Senator actively opposed his confirmation. Warren Harding did not seek a stealth nomination, and Butler proved to be perhaps the best Supreme Court Justice ever."

Retrieved from "http://www.conservapedia.com/Pierce_Butler"


Roger B. Taney was a Catholic, but I don't take any special pride in that.


The first Catholic Supreme Court justice was Chief Justice Roger Taney (of Dred Scot infamy, alas).

Edward Douglas White was a very distinguished associate justice who preceded Butler on the Court.

Butler was the lone negative vote in the Court's appalling Buck v. Bell decision, but he did not write a dissenting opinion (which in those days were regarded as exceptional, rather than the norm they have become in recent decades).


This is the case cited by the Nazi defense lawyer in the Nuremberg trial film with Spencer Tracy. Not a bright mark in our jurisprudence.

bruce cole

An earlier, if not the first, Catholic on the Supreme Court was the egregious Roger Brook Taney, who gave us Dred Scott.

Jay Anderson

The first Catholic Justice (indeed, Chief Justice) was Roger Taney, who is responsible for writing that 19th Century version of Roe v. Wade known as the Dred Scott decision.


I lifted the following from the Wikipedia article on Mr. Taney. ( BTW, I was surpised that a Catholic, though a slave-holder, had become Chief Justice so early in U.S. history ). The applicability of the quote to more recent events is clear.

"I speak what cannot be denied when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion. You have not forgotten that terrible decision where a most unrighteous judgment was sustained by a falsification of history. Of course, the Constitution of the United States and every principle of Liberty was falsified, but historical truth was falsified also. . ."


Isn't this Pierce Butler related to the Pierce Butler who was married to Fanny Kemble and who was a major slaveholder on St Simon's Island? (this does not tarnish his stance but illuminated his background)


Oliver Wendell Holmes famous quip in this case:

"I think three generations of morons are enough!"

Sandra Miesel

Indiana was the first state to legally sterilize the "unfit."


JP cited the quote "I think three generations of morons are enough!"

JP, this isn't the forum for Kennedy-bashing.


Holmes did not age well (and he lived to 1933), marked by the fact that one of his last law clerks was Alger Hiss.

stuart chessman

Edward White was chief justice of the Supreme Court. Joseph McKenna, another Catholic of the same era, was an associate justice of the court.

Let's not get into a self righteous uproar over Chief Justice Taney. At that time the offical Church position was that slavery, if not the slave trade, was under circumstances acceptable.


"Let's not get into a self righteous uproar over Chief Justice Taney. At that time the offical Church position was that slavery, if not the slave trade, was under circumstances acceptable."

Not true:

James Kabala

I'm not aware of any connection between Justice Butler and the South Carolina Pierece Butlers, although it does seem like it has to be more than a coincidence.

Donald R. McClarey

Here is part of an address made by Attorney General Jackson, who later became a member of the Court, when the Supreme Court met in 1940 to mourn the death of Justice Butler.

"His conservatism was rooted in profound religious convictions. It was always manifest that he had definite principles and he had no sympathy for those whose only principle was to be without principle. Cherishing the ideals of authority and certainty, he demanded adherence to precedent and deplored what he considered to be an undue flexibility in constitutional interpretation. As he put it,--'Generally speaking, at least, our decisions of yesterday ought to be the law of today.' He was a strong defender of the conception of property rights which he believed to be secured by the accepted construction of the due process clause. He believed in that conception as an essential stimulus to effort and as holding a better promise of social progress than governmental plans involving restriction of individual initiative. He believed in the right to choose one's calling, to pursue it unfettered, so far as consistent with good order and the equal rights of others, and to maintain and hold the material rewards of honest endeavor. In short, he sought to keep open the traditional path to individual achievement which he himself had trod.

“While solicitous for the public order and the authority of law, he was equally a stickler for the rights of those accused of crime to be protected against the abuses of authority. He was zealous for the maintenance of just government but vehemently opposed to any action under any guise which he deemed to be arbitrary and capricious. He expressed his thought in the words of one of his opinions, which was quoted in one of the addresses, at the meeting of the Bar: ‘Abhorrence, however great, of persistent and menacing crime will not excuse transgression in the courts of the legal rights of the worst offenders.’ United States v. Motlow, 10 F. 2d 657, 662. And in his dissent in the first Wire-tapping case, he thus voiced his conception of the appropriate interpretation of the great clauses of the Constitution for the safeguarding of personal liberty: 'This Court has always construed the Constitution in the light of the principles upon which it was founded. The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words. That construction is consonant with sound reason and in full accord with the course of decisions since McCulloch v. Maryland.’ Olmstead v. United States, 277 U. S. 438, 487, 488.

"And with these views which I have endeavored briefly to interpret,--as I think he would wish them expressed—he wrought to the end,--a man of deep-seated convictions, religious and political, with unfailing loyalty to basic principles as he conceived them,--a personality of rare force and determination, and yet with the kindliest disposition, the most generous sympathy, the warmest heart."

Charlotte Allen

Let me play devil's advocate for a second and say a few words in defense of Roger Taney and his opinion in Dred Scott. In doing so, I am neither defending slavery nor engaging in a sentimental defense of the Old South and its institutions. I think slavery was and is morally abhorrent, and the conditions of antebellum slaves cannot be romanticized away.

In Dred Scott, Taney ruled that the "Missouri Compromise"--the 1830 federal law barring slavery north of a geographical line drawn through the former Louisiana Territory but allowing it south of that line--was unconstitutional as applied to the situation of Scott, a onetime slave who had moved with his late master north of the line, on the ground that the law deprived the master's widow of his property (Scott) without just compensation as the Fifth Amendment to the Constitution required. Presumably if the government had paid the master or his widow for Scott's freedom as guaranteed by the Missouri Compromise, that law would have passed constitutional muster in the eyes of Taney and the six Supreme Court justices who signed on to his opinion.

The idea of setting slaves free but compensating the slaveholders was not such a bad one--and if Congress had done that with respect to the Missouri Compromise and other such laws, it is highly likely that there never would have been a Civil War. When Great Britain outlawed slavery in the Empire Indies in 1833 after the ceaseless moral prodding of William Wilberforce and his allies, it did exactly that. The British government committed millions of pounds to compensating the plantation owners of the West Indies who had owned the slaves. Britain thus succeeded in abolishing slavery peacefully and without bloodshed more than 30 years before Lincoln's Emancipation Proclamation in the United States.

That said, thanks, Donald McClarey for bringing the life and career of Pierce Butler to my attention. He is now one of my great heroes.

Jay Anderson

The problem with Dred Scott (as with Roe) is that it read things into the Constitution that are not there:

The decision ruled that people of African descent, whether or not they were slaves, could never be citizens of the United States, and that Congress had no authority to prohibit slavery in federal territories.

Like Roe, Dred Scott constitutionally de-humanized an entire class of people in the name of "liberty", and took away from the government the power to pass laws to protect that class of people.

Charlotte Allen

Actually, what Taney said in Dred Scott was that slavery was permitted by the Constitution--and that's indisputable--and that therefore Congress had no power to abrogate what the Constitution permitted just because Congress had the power to make laws governing a federal territory. That is, if the Constitution allowed people to own each other as their property and protected those property rights via the Fifth Amendment, Congress couldn't step in and nullify those rights.

As for the question of whether freed slaves and their descendants could be citizens, Taney said that that there was no evidence that the framers of the Constitution had ever intended that to be the case. He pointed to laws in nearly every state predating the Constitution that discriminated against blacks, and to the fact that the Constitution permitted slavery and that the framers, many of whom were slaveowners, had changed language in the original Articles of Confederation to mandate rights and privileges not for "free inhabitants" of the states as the Articles said, but only to "citizens." And Taney further argued that the framers simply did not regard African-Americans as "citizens" or they would have required them to be treated equally. Here is what Taney wrote:

"It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

"They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

"And in no nation was this opinion more firmly fixed or more [60 U.S. 393, 408] uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world.

"The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time."

As you can see, Taney was quite sympathetic to the plight of African-Americans, but he deferred to what he saw as the original intent of the framers of the Constitution. It was the framers, he said, who "dehumanized" African-Americans. What he was saying essentially was: For blacks to have equal rights and privileges with whites, amend the Constitution. That is exactly what Congress did in passing the 13th, 14th, and 15th Amendments after the Civil War. Arguably, they should have been enacted before the Civil War.

Thus, Dred Scott was in many ways quite the opposite of Roe v. Wade, in which seven Supreme Court justices discovered a quite imaginary "right" to an abortion in the Constitution, ignoring the intention of the Framers, who clearly never contemplated such a right and would have been repelled by the very idea of it. You may argue that the Dred Scott decision was too deferential to the mores of the slavery-permitting and racially discriminatory society in which the Constitution was originally drafted, but at least it wasn't inventing constitutional rights out of whole cloth.

Jay Anderson

Most originalists will argue that originalism must be grounded in the actual text of the Constitution. The notion that those of African descent could never be citizens is found nowhere in the text of the Constitution.

Thus, Taney read that into the document.

paul zummo

You may argue that the Dred Scott decision was too deferential to the mores of the slavery-permitting and racially discriminatory society in which the Constitution was originally drafted, but at least it wasn't inventing constitutional rights out of whole cloth.

Wrong. Dred Scott was ground zero for the development of an activist Court that completely read things into the Constiution that did not exist. Moreover, not only did Taney rule wrongly, he completely exceeded the parameters of the case to bring up issues unrelated to the case at hand. Much of his reasoning was mere obiter dicta.

What was supposed to be a case about a slave taken into free territory turned into an overreaching case where the Court overturned a completely legitimate political compromise. It was the equivalant of taking a wrongful death suit to the Court and having the estate tax wiped out.

There are times when something that we find morally repugnant turns out to be constititional, and there are times when the morally right thing happens to be unconstitutional. This was one of those times when moral rightness and constitutionality happened to coincide, and Taney decided to snuff it out due to his own personal predilections.

Victor Morton

slavery was permitted by the Constitution--and that's indisputable--and that therefore Congress had no power to abrogate what the Constitution permitted

Actually, no. The constitution permits the death penalty -- which is equally indisputable on exactly the same grounds -- but that doesn't mean that the federal government must have a death penalty (keep in mind that the issue in Dred Scott was Congress's power over the status of slavery in the territories, not in the state of Missouri) or that every federal regulation of state death penalties is ipso-facto invalid (though some may be).

Taney's decision is actually a classic of creating an individual federal right (Sanford's right to own slaves as property) from penumbras and emanations ... i.e., it's exactly of a piece with Roe and the whole jurisprudence[sic] of privacy, starting with Griswold.

Bork has made the point that the Constitution certainly recognized that slaves were held pursuant to the laws of many states and prohibits or grants certain powers that presuppose that fact. But that doesn't create a general right to own slaves good against federal regulations in the territories, any more than -- to cite Hugo Black's example in Griswold -- the 4th Amendment's strictures against search and seizure and 1st Amendment rights to free speech creates a general "right to privacy," good in other contexts. Even the parts of Taney's decision that Charlotte quotes prove exactly that this is what he's doing -- a two-step move using perfectly-good-in-itself history to construct what the Founders must have meant and/or what sociological theories must underlie the document for it to be coherent (according to whose lights? Taney's). And then creating rights based on those theories -- like Griswold and Roe, Dred Scott is a classic of "natural law jurisprudence."

Charlotte Allen

Alas, slavery was indeed written into the Constitution, with the infamous "three-fifths" clause (Article I, Section 2, Clause 3, in which, for purposes of deciding how many congressional representatives each state was entitled to, you counted all "free persons," plus three-fifths of "all other persons." It was quite clear who the "other persons' were.

And slaves were property, pure and simple. Property rights were defined by state law, and in slave states, those in bondage enjoyed about the same legal status as their owners' horses and oxen. The Fifth Amendment expressly defends property rights against intrusions by Congress. Thus, Taney wrote that Congress, by outlawing slavery in certain territories via the Missouri Compromise, had interfered with the property rights of the widow of Dred Scott's late owner. All this sounds pretty originalist to me--that is, grounded in the very words of the Constitution as well as in the intention of its framers.

I'm not saying that Dred Scott deserved to be a slave forever as well as something less than a citizen. He didn't--and that was the point that the abolitionists made over and over until finally the Western world came to believe them (large segments of the non-Western world still don't). America was founded, and its constitution drafted and ratified, in the optimistic hope that somehow a compromised could be reached--or at least a divide papered over in the Constitution--between those who believed that slavery was grossly immoral and those who saw it as an economic necessity (and as historian Rodney Stark has pointed out, slavery paid economically). Such a compromise proved impossible; the outcome was a civil war of almost unimaginably ghastly proportions, followed by racial tensions that still have not been entirely resolved.

It is easy for us to say in hindsight that the Dred Scott case was wrongly decided, but in fact Roger Taney was simply following the lead of a tragically flawed Constitution.

Victor Morton

slavery was indeed written into the Constitution

No. Slavery was acknowledged as a fact in the constitution, but not remotely the same thing as creating an individual right to own slaves, which it nowhere did.

No such right could by proven by either the three-fifths clause nor any of the several "enabling" provisions in the constitution that recognize and deal with the fact that slaves are held pursuant to the laws of several states. You can count three-fifths of zero (0) as well as three-fifths of a thousand (600), and this was proven by the fact that free states without slaves ratified the same compact and had their apportionment determined by the same clause.

And slaves were property, pure and simple. Property rights were defined by state law, and in slave states, those in bondage enjoyed about the same legal status as their owners' horses and oxen.

But the Missouri Compromise struck down by the Dred Scott decision dealt with the status of slavery in the territories, which the federal government DID have authority over, including the right to define what was property for the purposes of federal law.

The only way that Taney can get to his decision is by saying the constitution creates an individual federal right, as good against federal government intrusion as the First Amendment speech guarantees, to own slaves. And you can't do THAT without "finding" it in the penumbras and emanations, helped by eye of newt and tongue of bat.

The fact that Scott was property under Missouri law is irrelevant to federal jurisdiction over the then-unorganized Louisiana Purchase. Further, if the fact that Scott was property under Missouri law was binding on the federal government, there is no reason that status wouldn't have bound a free state like Illinois (a not-irrelevant fact in this case). But then this would have meant that neither Illinois nor any other state could have barred slavery as long as any one state allowed it (cf. Massachusetts, gay "marriage" and "full-faith-and-credit") -- a result as preposterous as any imaginable under any "originalist" theory.

Nor is this presentism. I at least would be quite willing to say that if Dred Scott had sued for his freedom having never left Missouri and his claim was that slavery itself was unconstitutional, Judge Morton would have laughed in his face. He probably would have cited the very provisions you're naming as proving that slavery cannot be unconstitutional (they *do* prove that; they *don't* prove that Sanford had a federal right to own slaves though).

Jay Anderson

Exactly, Victor.

Donald R. McClarey

The Dred Scott decision was an attempt by the Southern justices to "solve" the question of slavery in the territories that had roiled the nation throughout the 1850s by declaring victory for the pro-slavery forces. The majority "solved" the question of slavery as well as the majority in Roe "solved" the question of abortion.

In regard to the appalling Dred Scott decision, I think Justice Scalia, as usual, says it best:

"I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced - against overruling, no less - by the substantial and continuing public opposition the decision has generated. The Court's judgment that any other course would "subvert the Court's legitimacy" must be another consequence of reading the error-filled history book that described the deeply divided country brought together by Roe. In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, 19 How. 393 (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), which produced the famous "switch in time" from the Court's erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal. Both Dred Scott and one line of the cases resisting the New Deal rested upon the concept of "substantive due process" that the Court praises and employs today. Indeed, Dred Scott was very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade. D. Currie, The Constitution in the Supreme Court 271 (1985) (footnotes omitted)."


"There is a poignant aspect to today's opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation, and of our Court. "It is the dimension" of authority, they say, to cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution. Ante, at 867.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is 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 [505 U.S. 833, 1002] 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 his inaugural 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.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

From Justice Scalia's magnificent dissent in Planned Parenthood v. Casey, 505 US 833 (1992)

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