Whole Woman’s Health v. Hellerstedt,
Annotate this Case
579 U.S. ___ (2016)
- Syllabus |
- Opinion (Stephen G. Breyer) |
- Concurrence (Ruth Bader Ginsburg) |
- Dissent (Clarence Thomas) |
- Dissent (Samuel A. Alito, Jr.)
SUPREME COURT OF THE UNITED STATES
WHOLE WOMAN’S HEALTH, et al., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 27, 2016]
Justice Thomas, dissenting.
Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Stenberg v. Carhart, 530 U. S. 914, 954 (2000) (Scalia, J., dissenting). As Justice Alito observes, see post (dissenting opinion), today’s decision creates an abortion exception to ordinary rules of res judicata, ignores compelling evidence that Texas’ law imposes no unconstitutional burden, and disregards basic principles of the severability doctrine. I write separately to emphasize how today’s decision perpetuates the Court’s habit of apply-ing different rules to different constitutional rights—especially the putative right to abortion.
To begin, the very existence of this suit is a jurisprudential oddity. Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions.
This case also underscores the Court’s increasingly common practice of invoking a given level of scrutiny—here, the abortion-specific undue burden standard—while applying a different standard of review entirely. What-ever scrutiny the majority applies to Texas’ law, it bears little resemblance to the undue-burden test the Court articulated in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , and its successors. Instead, the majority eviscerates important features of that test to return to a regime like the one that Casey repudiated.
Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predict-ability nor the promise of a judiciary bound by the rule of law.
This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman’s right to abortion. The Court’s third-party standing jurisprudence is no model of clarity. See Kowalski v. Tesmer, 543 U. S. 125, 135 (2004) (Thomas, J., concurring). Driving this doctrinal confusion, the Court has shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake. And this case reveals a deeper flaw in straying from our normal rules: when the wrong party litigates a case, we end up resolving disputes that make for bad law.
For most of our Nation’s history, plaintiffs could not challenge a statute by asserting someone else’s constitutional rights. See ibid. This Court would “not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it.” Clark v. Kansas City, 176 U. S. 114, 118 (1900) (internal quotation marks omitted). And for good reason: “[C]ourts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U. S. 601 –611 (1973).
In the 20th century, the Court began relaxing that rule. But even as the Court started to recognize exceptions for certain types of challenges, it stressed the strict limits of those exceptions. A plaintiff could assert a third party’s rights, the Court said, but only if the plaintiff had a “close relation to the third party” and the third party faced a formidable “hindrance” to asserting his own rights. Powers v. Ohio, 499 U. S. 400, 411 (1991) ; accord, Kowalski, supra, at 130–133 (similar).
Those limits broke down, however, because the Court has been “quite forgiving” in applying these standards to certain claims. Id., at 130. Some constitutional rights remained “personal rights which . . . may not be vicari-ously asserted.” Alderman v. United States, 394 U. S. 165, 174 (1969) ( Fourth Amendment rights are purely per-sonal); see Rakas v. Illinois, 439 U. S. 128, 140, n. 8 (1978) (so is the Fifth Amendment right against self-incrimination). But the Court has abandoned such limitations on other rights, producing serious anomalies across similar factual scenarios. Lawyers cannot vicariously assert potential clients’ Sixth Amendment rights because they lack any current, close relationship. Kowalski, supra, at 130–131. Yet litigants can assert potential jurors’ rights against race or sex discrimination in jury selection even when the litigants have never met potential jurors and do not share their race or sex. Powers, supra, at 410–416; J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 129 (1994) . And vendors can sue to invalidate state regulations implicating potential customers’ equal protection rights against sex discrimination. Craig v. Boren, 429 U. S. 190 –197 (1976) (striking down sex-based age restrictions on purchasing beer).
Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child. In Singleton v. Wulff, 428 U. S. 106 (1976) , a plurality of this Court fashioned a blanket rule allowing third-party standing in abortion cases. Id., at 118. “[I]t generally is appropriate,” said the Court, “to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Ibid. Yet the plural-ity conceded that the traditional criteria for an exception tothe third-party standing rule were not met. There are no “insurmountable” obstacles stopping women seeking abortions from asserting their own rights, the plurality admitted. Nor are there jurisdictional barriers. Roe v. Wade, 410 U. S. 113 (1973) , held that women seeking abortions fell into the mootness exception for cases “ ‘capable of repetition, yet seeking review,’ ” enabling them to sue after they terminated their pregnancies without showing that they intended to become pregnant and seek an abortion again. Id., at 125. Yet, since Singleton, the Court has unquestioningly accepted doctors’ and clinics’ vicarious assertion of the constitutional rights of hypothetical patients, even as women seeking abortions have successfully and repeatedly asserted their own rights before this Court.
Here too, the Court does not question whether doctors and clinics should be allowed to sue on behalf of Texas women seeking abortions as a matter of course. They should not. The central question under the Court’s abortion precedents is whether there is an undue burden on a woman’s access to abortion. See Casey, 505 U. S., at 877 (plurality opinion); see Part II, infra. But the Court’s permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue—and our cases then relieve them of any obligation to prove what burdens women actually face. I find it astonishing that the majority can discover an “undue burden” on women’s access to abortion for “those [women] for whom [Texas’ law] is an actual rather than an irrelevant restriction,” ante, at 39 (internal quotation marks omitted), without identifying how many women fit this description; their proximity to open clinics; or their preferences as to where they obtain abortions, and from whom. “[C]ommonsense inference[s]” that such a burden exists, ante, at 36, are no substitute for actual evidence. There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it “involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” Casey, supra, at 851 (majority opinion), the Court has created special rules that cede its enforcement to others.
Today’s opinion also reimagines the undue-burden standard used to assess the constitutionality of abortion restrictions. Nearly 25 years ago, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , a plurality of this Court invented the “undue burden” standard as a special test for gauging the permissibility of abortion restrictions. Casey held that a law is unconstitutional if it imposes an “undue burden” on a woman’s ability to choose to have an abortion, meaning that it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id., at 877. Casey thus instructed courts to look to whether a law substantially impedes women’s access to abortion, and whether it is reasonably related to legitimate state interests. As the Court explained, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power” to regulate aspects of abortion procedures, “all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” Gonzales v. Carhart, 550 U. S. 124, 158 (2007) .
I remain fundamentally opposed to the Court’s abortion jurisprudence. E.g., id., at 168–169 (Thomas, J., concurring); Stenberg, 530 U. S., at 980, 982 (Thomas, J., dissenting). Even taking Casey as the baseline, however, the majority radically rewrites the undue-burden test in three ways. First, today’s decision requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Ante, at 19. Second, today’s opinion tells the courts that, when the law’s justifications are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves. Ibid. Finally, even if a law imposes no “substantial obstacle” to women’s access to abortions, the law now must have more than a “reasonabl[e] relat[ion] to . . . a legitimate state interest.” Ibid. (internal quotation marks omitted). These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny.
First, the majority’s free-form balancing test is contrary to Casey. When assessing Pennsylvania’s recordkeeping requirements for abortion providers, for instance, Casey did not weigh its benefits and burdens. Rather, Casey held that the law had a legitimate purpose because data collection advances medical research, “so it cannot be said that the requirements serve no purpose other than to make abortions more difficult.” 505 U. S., at 901 ( joint opinion of O’Connor, Kennedy, and Souter, JJ.). The opinion then asked whether the recordkeeping requirements imposed a “substantial obstacle,” and found none. Ibid. Contrary to the majority’s statements, see ante, at 19, Casey did not balance the benefits and burdens of Pennsylvania’s spousal and parental notification provisions, either. Pennsylvania’s spousal notification requirement, the plurality said, imposed an undue burden because findings established that the requirement would “likely . . . prevent a significant number of women from obtaining an abortion”—not because these burdens outweighed its benefits. 505 U. S., at 893 (majority opinion); see id., at 887–894. And Casey summarily upheld parental notification provisions because even pre-Casey decisions had done so. Id., at 899–900 (joint opinion).
Decisions in Casey’s wake further refute the majority’s benefits-and-burdens balancing test. The Court in Mazurek v. Armstrong, 520 U. S. 968 (1997) (per curiam), had no difficulty upholding a Montana law authorizing only physicians to perform abortions—even though no legislative findings supported the law, and the challengers claimed that “all health evidence contradict[ed] the claim that there is any health basis for the law.” Id., at 973 (internal quotation marks omitted). Mazurek also deemed objections to the law’s lack of benefits “squarely foreclosed by Casey itself.” Ibid. Instead, the Court explained, “ ‘the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others.’ ” Ibid. (quoting Casey, supra, at 885; emphasis in original); see Gonzales, supra, at 164 (relying on Mazurek).
Second, by rejecting the notion that “legislatures, and not courts, must resolve questions of medical uncertainty,” ante, at 20, the majority discards another core element of the Casey framework. Before today, this Court had “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Gonzales, 550 U. S., at 163. This Court emphasized that this “traditional rule” of deference “is consistent with Casey.” Ibid. This Court underscored that legislatures should not be hamstrung “if some part of the medical community were disinclined to follow the proscription.” Id., at 166. And this Court concluded that “[c]onsiderations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.” Ibid.; see Stenberg, supra, at 971 (Kennedy, J., dissenting) (“the right of the legislature to resolve matters on which physicians disagreed” is “establish[ed] beyond doubt”). This Court could not have been clearer: When-ever medical justifications for an abortion restriction are debatable, that “provides a sufficient basis to conclude in [a] facial attack that the [law] does not impose an undue burden.” Gonzales, 550 U. S., at 164. Otherwise, legislatures would face “too exacting” a standard. Id., at 166.
Today, however, the majority refuses to leave disputed medical science to the legislature because past cases “placed considerable weight upon the evidence and argument presented in judicial proceedings.” Ante, at 20. But while Casey relied on record evidence to uphold Pennsylvania’s spousal-notification requirement, that requirement had nothing to do with debated medical science. 505 U. S., at 888–894 (majority opinion). And while Gonzales observed that courts need not blindly accept all legislative findings, see ante, at 20, that does not help the majority. Gonzales refused to accept Congress’ finding of “a medical consensus that the prohibited procedure is never medically necessary” because the procedure’s necessity was debated within the medical community. 550 U. S., at 165–166. Having identified medical uncertainty, Gonzales explained how courts should resolve conflicting positions: by respecting the legislature’s judgment. See id., at 164.
Finally, the majority overrules another central aspect of Casey by requiring laws to have more than a rational basis even if they do not substantially impede access to abortion. Ante, at 19–20. “Where [the State] has a rational basis to act and it does not impose an undue burden,” this Court previously held, “the State may use its regulatory power” to impose regulations “in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” Gonzales, supra, at 158 (emphasis added); see Casey, supra, at 878 (plurality opinion) (similar). No longer. Though the majority declines to say how substantial a State’s interest must be, ante, at 20, one thing is clear: The State’s burden has been ratcheted to a level that has not applied for a quarter century.
Today’s opinion does resemble Casey in one respect: After disregarding significant aspects of the Court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come. As in Casey, today’s opinion “simply . . . highlight[s] certain facts in the record that apparently strike the . . . Justices as particularly significant in establishing (or refuting) the existence of an undue burden.” 505 U. S., at 991 (Scalia, J., concurring in judgment in part and dissenting in part); see ante, at 23–24, 31–34. As in Casey, “the opinion then simply announces that the provision either does or does not impose a ‘substantial obstacle’ or an ‘undue burden.’ ” 505 U. S., at 991 (opinion of Scalia, J); see ante, at 26, 36. And still “[w]e do not know whether the same conclusions could have been reached on a different record, or in what respects the record would have had to differ before an opposite conclusion would have been appropriate.” 505 U. S., at 991 (opinion of Scalia, J.); cf. ante, at 26, 31–32. All we know is that an undue burden now has little to do with whether the law, in a “real sense, deprive[s] women of the ultimate decision,” Casey, supra, at 875, and more to do with the loss of “individualized attention, serious conversation, and emotional support,” ante, at 36.
The majority’s undue-burden test looks far less like our post-Casey precedents and far more like the strict-scrutiny standard that Casey rejected, under which only the most compelling rationales justified restrictions on abortion. See Casey, supra, at 871, 874–875 (plurality opinion). One searches the majority opinion in vain for any acknowledgment of the “premise central” to Casey’s rejection of strict scrutiny: “that the government has a legitimate and substantial interest in preserving and promoting fetal life” from conception, not just in regulating medical procedures. Gonzales, supra, at 145 (internal quotation marks omitted); see Casey, supra, at 846 (majority opinion), 871 (plurality opinion). Meanwhile, the majority’s undue-burden balancing approach risks ruling out even minor, previously valid infringements on access to abortion. Moreover, by second-guessing medical evidence and making its own assessments of “quality of care” issues, ante, at 23–24, 30–31, 36, the majority reappoints this Court as “the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.” Gonzales, supra, at 164 (internal quotation marks omitted). And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what “commonsense inferences” of an undue burden this Court will identify next.
The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it “rational basis,” intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.
Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960’s did the Court begin in earnest to speak of “strict scrutiny” versus reviewing legislation for mere rationality, and to develop the contours of these tests. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274, 1284–1285 (2007). In short order, the Court adopted strict scrutiny as the standard for reviewing everything from race-based classifications under the Equal Protection Clause to restrictions on constitutionally protected speech. Id., at 1275–1283. Roe v. Wade, 410 U. S. 113 , then applied strict scrutiny to a purportedly “fundamental” substantive due process right for the first time. Id., at 162–164; see Fallon, supra, at 1283; accord, Casey, supra, at 871 (plurality opinion) (noting that post-Roe cases interpreted Roe to demand “strict scrutiny”). Then the tiers of scrutiny proliferated into ever more gradations. See, e.g., Craig, 429 U. S., at 197–198 (intermediate scrutiny for sex-based classifications); Lawrence v. Texas, 539 U. S. 558, 580 (2003) (O’Connor, J., concurring in judgment) (“a more searching form of rational basis review” applies to laws reflecting “a desire to harm a politically unpopular group”); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per cu-riam) (applying “ ‘closest scrutiny’ ” to campaign-financecontribution limits). Casey’s undue-burden test added yet another right-specific test on the spectrum betweenrational-basis and strict-scrutiny review.
The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent. United States v. Virginia, 518 U. S. 515, 570 (1996) (Scalia, J., dissenting). The Constitution does not prescribe tiers of scrutiny. The three basic tiers—“rational basis,” intermediate, and strict scrutiny—“are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.” Id., at 567; see also Craig, supra, at 217–221 (Rehnquist, J., dissenting).
But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the “cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry”) and a “reasoned, principled explanation” for why it is pursuing them—then this Court defers. Fisher v. University of Tex. at Austin, ante, at 7, 12 (internal quotation marks omitted). Yet the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas’ law, is medically debated. See Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673, 684 (WD Tex. 2014) (noting conflict in expert testimony about abortion safety). Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___, ___–___ (2015) (slip op., at 8–9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 20).
These more recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. E.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 421 (2000) (Thomas, J., dissenting) (“The Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases” to review caps on political contributions). Meanwhile, the Court selectively applies rational-basis review—under which the question is supposed to be whether “any state of facts reasonably may be conceived to justify” the law, McGowan v. Maryland, 366 U. S. 420, 426 (1961) —with formidable toughness. E.g., Lawrence, 539 U. S., at 580 (O’Connor, J., concurring in judgment) (at least in equal protection cases, the Court is “most likely” to find no rational basis for a law if “the challenged legislation inhibits personal relationships”); see id., at 586 (Scalia, J., dissenting) (faulting the Court for applying “an unheard-of form of rational-basis review”).
These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its “doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.” Williams-Yulee, supra, at ___ (slip op., at 1) (Breyer, J., concurring). The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.
It is tempting to identify the Court’s invention of a constitutional right to abortion in Roe v. Wade, 410 U. S. 113 , as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See Lochner v. New York, 198 U. S. 45 (1905) . The Court in 1937 repudiated Lochner’s foundations. See West Coast Hotel Co. v. Parrish, 300 U. S. 379 –387, 400 (1937). But the Court then created a new taxonomy of preferred rights.
In 1938, seven Justices heard a constitutional challenge to a federal ban on shipping adulterated milk in interstate commerce. Without economic substantive due process, the ban clearly invaded no constitutional right. See United States v. Carolene Products Co., 304 U. S. 144 –153 (1938). Within Justice Stone’s opinion for the Court, however, was a footnote that just three other Justices joined—the famous Carolene Products Footnote 4. See ibid., n. 4; Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1097 (1982). The footnote’s first paragraph suggested that the presumption of constitutionality that ordinarily attaches to legislation might be “narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution.” 304 U. S., at 152–153, n. 4. Its second paragraph appeared to question “whether legislation which restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the [14th] Amendment than are most other types of legislation.” Ibid. And its third and most familiar paragraph raised the question “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Ibid.
Though the footnote was pure dicta, the Court seized upon it to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race—but also rights not enumerated in the Constitution. As the Court identified which rights deserved special protection, it developed the tiers of scrutiny as part of its equal protection (and, later, due process) jurisprudence as a way to demand extra justifications for encroachments on these rights. See Fallon, 54 UCLA L. Rev., at 1270–1273, 1281–1285. And, having created a new category of fundamental rights, the Court loosened the reins to recognize even putative rights like abortion, see Roe, 410 U. S., at 162–164, which hardly implicate “discrete and insular minorities.”
The Court also seized upon the rationale of the Carolene Products footnote to justify exceptions to third-party standing doctrine. The Court suggested that it was tilting the analysis to favor rights involving actual or perceived minorities—then seemingly counted the right to contraception as such a right. According to the Court, what matters is the “relationship between one who acted to protect the rights of a minority and the minority itself”—which, the Court suggested, includes the relationship “between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so.” Eisenstadt v. Baird, 405 U. S. 438, 445 (1972) (citing Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 631 (1962)).
Eighty years on, the Court has come full circle. The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitu-tional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.
* * *
Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.