Roe v Wade’s End and the Politicization of the Supreme Court

YouBenjamin Cardozo was the Supreme Court Justice in 2021. He wrote a book that examined how judges form their opinions. Judicial opinions, he asserted, did not simply reflect this or that legal theory but also the judges who wrote them—human beings influenced, as we all are, by upbringing and experience. “All their lives,” wrote Cardozo, “forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life.” He added: “There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations.”

If RoeThe Supreme Court was established fifty years after the fact. Its justices weren’t more willing to talk about how law had shaped their views. Lewis Powell was one of the few to not disclose that, just a few years prior, a young messenger from his Virginia law office came to him seeking help following an illegal pregnancy. After taking his girlfriend to her abortion provider, the young man was charged with manslaughter. Powell told later his clerks about this double tragedy and why he had chosen to side with the majority. Roe. “I don’t want to live in a country,” he said, “where a young man and a young woman like that are forced to go to a back-alley butcher.” Harry Blackmun, meantime, the justice who wrote the majority Roeopinion) was a Mayo Clinic counsel when he also saw women who had suffered grievous losses from illegal abortions. He did not speak publicly about them as much as his daughter, who was also hurt by illegal abortion in 1966.

Blackmun stated, in a preamble, that even though the justices didn’t publicly disclose these experiences, they did. Roe, that people often form their opinions of abortion based on their exposure to it—to what Blackmun termed “the raw edges of human existence.” He was right. Because politics had not yet overtaken abortion. Both Blackmun and Powell were nominated to court by Republican Richard Nixon, while Byron White (who opposed legalizing abortion) was nominated by John Kennedy. Kennedy’s younger brother, Senator Ted Kennedy, also opposed abortion which he described as an affront to his Catholicism.

There was thus still room in this country for what Cardozo had called “acquired convictions.” And as the years passed, politicians continued to acquire convictions that ran counter to their parties’ ideologies. After his shooting, Ronald Reagan supported background checks for gun buyers. Dick Cheney supported gay marital after his daughter was out. John McCain sponsored an anti-torture Amendment years after having been tortured. Joe Biden was a Catholic traditionalist who supported the concept of a Constitution Amendment that allowed states to repeal Roe. “I’m probably a victim, or a product, however you want to phrase it, of my background,” he explained. Experience is more important than politics.

However, when it comes to abortion, experience is being trumped by politics more often.

Washington D.C. protestors for abortion march to liberalize US abortion laws in 1971.

Leif Skoogfors—Camera Press/Re​dux

It was before that abortion became politicized. Roe. Nixon changed his mind on this issue in 1971 after Pat Buchanan, his advisor suggested that he vote for it to gain Catholic votes. In Michigan, the referendum on abortion was placed on the state’s ballot in the following year. But abortion did not begin to become a partisan issue until 1975 when presidential-candidate Ronald Reagan backed the “aims” of a human life amendment which would grant the unborn personhood. The National Right to Life Committee—which was led by Dr. Mildred Jefferson who had helped bring Reagan into the pro-life fold—challenged the other presidential candidates to take a position on the amendments, thereby turning abortion, wrote the New York Times, “into one of the major issues of the 1976 Presidential campaign.” The two political parties responded by adopting, in their official platforms, positions on abortion.

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In 1980, both Catholics and the newly formed evangelical vote were being ruled by the GOP through abortion. Reagan became president after deciding that federal judges were a better path than laws to overthrow the government. Roe. He’d appointed more than one hundred of them when in 1984, Americans United for Life, a legal advocacy group, held a press conference titled “Reversing Roe V. Wade through the Courts.”

But judges could not express themselves as clearly. This much was clear when in 1987, Reagan nominated to the Supreme Court Robert Bork—a judge who had called Roe a “wholly unjustifiable judicial usurpation of state legislative authority.” Ted Kennedy, who had become pro-choice, warned that “Robert Bork’s America is a land in which women would be forced into back-alley abortions.” After the Senate then rejected Bork’s nomination, Senate confirmation hearings became not only a “proxies on Roe,” as one journalist called them, but a charade that left would-be justices to pretend that they had no thoughts on the ruling.

A greater degree of scrutiny meant there was less time for justices to express their personal opinions on abortion. A personal conviction could not only be a reminder to the public that justices are human beings who have different views on life as Cardozo, but it might also be considered political. However, it is possible for the court to still transcend politics around abortion. This was the case in 1992 inCasey vs. Planned ParenthoodDespite five regulations governing abortion, a Supreme Court made up of eight Republican appointees, and Byron White, preserved Roe’s core: legal abortion by viability.

One of the eight was Sandra Day O’Connor. She was the first woman justice to the court and the mother of three children. In the same year, she also wrote about the impact Thurgood Marshall, the first Black justice who had just retired, had on her and her fellow justices. “Justice Marshall,” she wrote, “imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.” So O’Connor did. So it is not surprising that O’Connor authored the plurality opinions in the abortion regulations. CaseyShe helped write the law that required married women get consent from their spouses. Noted the opinion: “Women do not lose their constitutionally protected liberty when they marry.”

Conservatives were exasperated—most of all with Justice David Souter, the George Bush nominee who helped to orchestrate the Casey ruling by winning over to it both O’Connor and Justice Anthony Kennedy. Souter, as the phrase suggests, argued that Casey, that to overrule a precedent as longstanding as Roe would be to “surrender to political pressure.”) “No More Souters” became a conservative cry. The Supreme Court today, three decades later, reflects this sentiment. Indeed, in its opinion in Dobbs v. Jackson Women’s Health Organization that struck down Roe, every justice but one voted along party lines.

Cardozo wouldn’t be able to remember the court where he served. He observed, one hundred and one year later that justices as well as their opinions were subject to both law and life. However, politics has taken over.

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