Justices Harlan and Black Revisited: The Emerging Dispute between Justice O'Connor and Justice Scalia over Unenumerated Fundamental Rights
January 1993
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JUSTICES HARLAN AND BLACK REVISITED: THE EMERGING DISPUTE BETWEEN JUSTICE O'CONNOR AND JUSTICE SCALIA OVER UNENUMERATED
FUNDAMENTAL RIGHTS
DAVID B. ANDERS*
INTRODUCTION
"Justice O'Connor's assertion... cannot be taken seriously."1 Justice Scalia made this statement four years ago, criticizing Justice O'Connor's refusal to reconsider the Court's recognition of a fundamental right to abortion. Justice Scalia may equally apply this critique to Justice O'Connor's most recent theoretical statements on that fundamental rights issue. In Planned Parenthood v. Casey,2 O'Connor surprised many observers3 by joining an opinion upholding the fundamental right to abortion4 that the Court first recognized in Roe v. Wade.5 Five Justices wrote opinions in Casey.6 The joint opinion of Justices O'Connor, Ken nedy, and Souter and the opinion of Justice Scalia consider the theory behind the derivation of unenumerated fundamental rights.7 These opin ions enable analysis of the constitutional theories of Justices Scalia and O'Connor regarding unenumerated fundamental rights derived from the
,i, I would like to thank Professor James E. Fleming for his insights and comments on earlier drafts of this Note, which was originally written for his seminar on constitu tional theory.
Webster v. Reproductive Health Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring).
112 s. Ct. 2791 (1992).
See Ronald Dworkin, The Center Holds!, N.Y. Rev. of Books, Aug. 13, 1992, at 29 [hereinafter Dworkin,