The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to … - Antonin Scalia

The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done. I sometimes think that is an appropriate analogy to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not).

Legislative flexibility on the part of Congress will be the touchstone of federalism when the capacity to support combustion becomes the acid test of a fire extinguisher. Congressional flexibility is desirable, of course - but only within the bounds of federal power established by the Constitution. Beyond those bounds (the theory of our Constitution goes), it is a menace.

It is hard to consider women a 'discrete and insular minority', unable to employ the 'political processes ordinarily to be relied upon' when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns.