Imagine, for a moment, that you have a sister named Gwendolyn.  Gwen has lousy taste in men; lately she’s been hanging around with a reputed drug lord named Dudley.  The police are convinced that Dudley recently shot and killed a rival dope dealer.

You’ve just learned that Gwendolyn lied to the police to give Dudley an alibi.  She said they were both having dinner at your home during the evening of the murder.  Now the cops are coming around to question you.  What are you going to do?  If you don’t back up your sister, she’ll be charged with obstruction of justice.  If you do, you’ll be guilty too.

Supreme Court justices often confront a similar choice.  When that happens, they usually choose to obstruct justice.  A careful study of the Court’s actions, over the course of American history, discloses a simple set of three decision rules to predict how the justices will approach any “constitutional” question.

Rule 1.  Feel free to trash the Constitution and vote your “conscience” in cases in which you have a strong political, religious, or economic bias.  Just provide a decent cover story, preferably one which tends to enlarge the Court's power and prestige.  It doesn’t have to be brilliant, just credible.  Nobody is in a position to keep you honest.

Rule 2.  When you have no strong personal preference, follow the rule of “stare decisis.”  Vote to follow previous Supreme Court precedents no matter how fraudulent they may be.  In the long run, the credibility of the Court is a lot more important than the Constitution.

Rule 3.  If neither Rule 1 nor Rule 2 applies, vote to uphold the Constitution. 


In 1992, the Supreme Court decided Planned Parenthood v. Casey.  This case, which involved various state rules concerning abortion clinics, was a perfect opportunity to dump the Roe v. Wade precedent.  A majority of the justices reportedly had admitted it was based on fiction.  Yet part of that majority voted to follow Rule 2 and defend it.  Three “centrists” (as characterized by various press reports) wrote an opinion stating in part [1],

After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.

The three “centrists” went on to say,

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.  It declares that no State shall "deprive any person of life, liberty, or property, without due process of law."  The controlling word in the case before us is "liberty."  Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, at least since Mugler v. Kansas, (1887), the Clause has been understood to contain a substantive component as well, one barring certain government actions regardless of the fairness of the procedures used to implement them.

Mugler v. Kansas was as bogus as a three-dollar bill.  In 1887 a band of judicial buccaneers on the Waite Court declared that the authors of the 14th Amendment intended it to bar the State of Kansas from shutting down a brewery that was operating in violation of a state liquor control statute and the state constitution.  In 1883, that same band of renegades had reached the startling conclusion that the 14th Amendment did not empower Congress to pass a law securing the right of African Americans to enjoy equal access to inns, railroads, and other public accommodations. They went on, in 1887, to assert it was perfectly obvious that corporations were “persons” entitled to the protection of the 14th Amendment [2].

The 14th Amendment begins, “All persons born or naturalized in the United States . . . .”  Does that sound like the framers were talking about corporations?

The infamous Waite Court subverted the 14th Amendment from its intended purpose: to protect the rights of African Americans; and fashioned it into a general purpose tool for judges to use to usurp control of state tax and regulatory policy.  Most of its members should have been hung.

It should also be noted that the substantive due process doctrine was not born in Mugler v. Kansas. That honor belongs to the infamous 1857 Dred Scott opinion in which a band of judicial buccaneers on the Taney court opined that African Americans were "beings of an inferior order (and) they had no rights which the white man was bound to respect."  The three “centrists” did not want to base their obstruction of justice on such an unsavory precedent. So they selected a later and more obscure one [3].

To put it kindly the three “centrists” (their names were O’Connor, Kennedy, and Souter) reached defective conclusions about the “fundamental constitutional questions” they 'considered.'  And “stare decisis” is just a variation on omerta,the Mafia code of silence.  So all they had left to justify their actions were “principles of institutional integrity.”

The three “centrists” have a damn strange definition of “integrity.”


1. A transcript of the Casey opinion can be found on the Internet at http://supct.law.cornell.edu/supct/html/91-744.ZO.html .

2. Mugler v. Kansas can be found at, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=123&invol=623.  For an account of the two other bogus Waite Court opinions mentioned above, see http://www.ttokarnak.net/RITC.html.

3. The Dred Scott case is discussed in a companion essay.

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D. J. Connolly