Cite as: 539 U. S. 558 (2003)
Scalia, J., dissenting
unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).1 Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe . . . fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").
(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding . . . ." Ante, at 577. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined
1 This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.
589
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