JB

Roe and the Party System– Or, Why Hasn’t Roe v. Wade Already Been Overruled?

This is the second in a series of posts on the thirtieth anniversary of the Supreme Court’s decision in Roe v. Wade.

I left off my last post by pointing out that Roe v. Wade helped produce the contemporary Republican Party. The Republican Party has had great success since 1968 in winning Presidential elections, and hence in appointing judges. For example, as I like to point out to my students, the Democrats didn’t get a single Supreme Court appointment between 1967 (which Thurgood Marshall replaced Tom C. Clark) and 1994, when Clinton nominated Ruth Bader Ginsburg. Think about that-- 27 years of Republican Supreme appointments. This has had an effect on constitutional doctrine in a number of areas, including, most importantly criminal procedure. But it has not been sufficient to get rid of Roe v. Wade.

Given Republican dominance on the Supreme Court, what explains the fact that Roe v. Wade is still standing?

The answer to this question is quite complicated, and involves a number of different factors, all of which revolve around the party system in the United States.

(1) The first factor is the changing nature of the Republican Party and of the background assumptions of American politics. We must to remember that the Republican Party of 1969 was not the same as the Republican Party of 2003. In 1968, the Republicans retook the White House at the apex of Democratic liberalism. The Congress was still heavily controlled by Democrats, and liberal ideas were still very much dominant. As a result, mainstream Republicans routinely took positions that today seem quite moderate, if not outright liberal. It was not until the 1976 convention that the Reagan forces began their ascent towards remaking the Republican Party in their own image, although Reagan does not capture the nomination until 1980.

Nixon had won the Presidency because George Wallace helped break apart the Democratic coalition that produced a landslide in 1964. The liberal Democrats in Congress hated Nixon and believed that he had not deserved to win. Because Nixon had run in 1968 against the Warren Court, Democrats were determined not to allow him to appoint new Justices who were too conservative. Indeed, the political science literature indicates that when the President is of one party and the Senate is controlled by another, Supreme Court appointments tend to be more moderate. Given that the Dems were on the warpath because of the close 1968 election this factor was particularly relevant. The Democrats beat back two of Nixon’s earlier appointments, Haynesworth and Carswell, sending a strong signal that Nixon would have considerable difficulty in appointing a strongly conservative candidate.

The first successful Republican appointments to the Supreme Court following the 1968 election reflect these political realities. Burger and Blackmun replace Warren and Fortas, clearly a move to the right. However, Burger and Blackmun were not movement conservatives in the modern sense, and actually proved quite moderate on some issues. Burger, after all, wrote Griggs v. Duke Power, which interpreted Title VII to reach disparate impact in addition to disparate treatment. He also created the Establishment Clause test in Lemon v. Kurtzman, the bete noir of today’s religious conservatives. Burger and Blackmun were reliably conservative on criminal procedure, but Burger joined Roe and Blackmun, of course, wrote the majority opinion in Roe.

Lewis Powell, who replaced Hugo Black, was also a comparative moderate by today’s standards. He also joined Roe and generally was a supporter of the basic abortion right. The only true movement conservative was William Rehnquist, who was the original “stealth” Justice, appointed as a virtual unknown. Gerald Ford’s single Supreme Court appointment, John Paul Stevens, was a Republican moderate who proved to be a reliable vote for abortion rights.

(2) Second, it’s important to recognize that the Republican Party had not become dominated by pro-life forces until Reagan. In fact, in the 1976 election the Republican Gerald Ford was probably more of a pro-choice candidate than the Democrat Jimmy Carter, an evangelical and born again Christian. Carter was in fact pro-life in 1976, but mostly kept quiet about it. Plenty of politicians in both parties supported abortion rights in 1973, and support was particularly strong among educated elites. It’s not surprising, then that of the five Republican appointments during the Nixon and Ford Administrations, four of those (Burger, Blackmun, Powell, and Stevens) supported the basic right in Roe.

In fact, the only two dissenters in Roe were Rehnquist, a statist conservative, and Byron White, a Kennedy Democrat who was put on the Court to defend national power against state power, protect black civil rights, and defer to legislatures in social and economic legislation. That’s pretty much what he did throughout his career. Note as well that if the New Deal Democrat Hugo Black had remained on the Court for two more years, he would probably have voted the same way that Rehnquist did.

Only after Reagan’s election in 1980 did the Republican Party become a recognizably pro-life party. Reagan’s appointments reflect both his strong political values and the political realities of his time. Reagan’s appointments primarily reflected his interest in state’s rights and federalism and his opposition to affirmative action, and his three appointments (O’Connor, Scalia, and Kennedy) have been fairly reliable on those issues. In 1982, Reagan’s popularity was not as strong as we remember it today; His choice of O’Connor, the first woman Justice, was designed to reduce opposition and signal that he would not necessarily appoint the most doctrinaire conservatives available. After the 1984 landslide, Republicans controlled both the Presidency and the Senate, and it is not surprising that during this period Reagan made his two most conservative appointments– appointing Antonin Scalia as Associate Justice, and elevating Rehnquist to Chief Justice. The Republicans lost the Senate in 1986, and the Iran Contra scandal weakened Reagan politically. This is one reason why Robert Bork, who was not particularly more conservative than Antonin Scalia, failed to win confirmation, and Reagan was forced to settle for the more moderate Anthony Kennedy. Kennedy has proven to be reliably conservative on federalism and affirmative action, but it seems clear that Bork would not have voted the same way on many first amendment and gay rights issues.

George H.W. Bush’s appointments also reflect Democratic control of the Senate. Souter was a stealth Justice, and Thomas almost failed to gain confirmation. Souter is often regarded as a mistake, but in fact, it seems clear in hindsight that Bush knew exactly what he was doing by appointing one pro-choice and one-pro life justice, as I will make clear in a moment.

(3) Why Republican Presidents like Roe. The contemporary Republican coalition brings together religious and social conservatives opposed to abortion with libertarians, economic conservatives, and suburbanites who may be quite moderate on abortion rights or even strongly pro-choice. In order to keep this coalition together, the Republican Party cannot have the power to make pre-viability abortion a crime either at the state or the national level. As long as pre-viability abortions are protected by Roe, that issue is off the table. What is on the table are issues where abortion regulation seems more sensible both to moderates and conservatives: restrictions on abortions for minors without parental consent, restrictions on late term abortions, restrictions on partial birth abortions, informed consent requirements, and withdrawal of federal funding for abortions.

If Roe were ever overturned, the issue of putting women and doctors in jail for performing pre-viability abortions would once again be on the table. Religious conservatives would inevitably push for much stricter regulations than moderates could stomach. The result would split the Republican coalition in half. On the other hand, with Roe on the books, the Republicans have the best of both worlds. Religious and social conservatives can fulminate against Roe all they want and moderates and libertarians are not scared off because they believe that the core holding of Roe is safe. (Note as well that this logic applies particularly to the Supreme Court and not to the lower courts. Lower court judges can be strongly pro-life, because at most they can chip away at Roe but not overrule it.).

One of the ironies of Ronald Reagan’s great skill in forming a winning coalition for the Republican Party is that it is actually in the interests of Republican presidents never to appoint a mix of Justices who will overturn Roe v. Wade. They can cut back on Roe, and even hollow it out– some people think that is exactly what the Casey opinion does– but they cannot overrule the opinion, or else they will hand the Democrats the best wedge issue they’ve had in years. From this standpoint, Souter, Kennedy, and O’Connor are every bit as important to the preservation of the Republican Party’s electoral chances as Rehnquist, Scalia, and Thomas.

This puts the 1992 Casey opinion in a very different light. Many people were surprised that three Reagan-Bush appointees reaffirmed Roe. But it seems quite clear, in hindsight, that the Justices realized that the political reaction to overruling Roe in 1992 would be quite significant. This is reflected in the joint opinion’s argument that overruling Roe would appear politically motivated or unduly influenced by politics. Ironically, the failure to overturn Roe in 1992 could also be interpreted in the same way.

What does this mean for future Supreme Court appointments? My guess is that George W. Bush will be just as canny as his father was. He will replace Chief Justice Rehnquist with an equally pro-life Justice, because that preserves the balance of power. But I don’t think he will replace O’Connor or Stevens with a Justice who would vote to overturn Roe. It’s true that even without O’Connor’s vote there are still technically five votes to uphold Roe, but Kennedy is wobbly on the issue, as judged from the late term abortion case, Stenberg v. Carhart.

Does all of this mean that the Democrats should take a fall and invite a series of pro-life appointments? If they were truly Machiavellian, I suppose they should. But I doubt they will adopt this strategy precisely because their base already fears that Congressional Democrats don’t stand up enough for core Democratic positions. And pro-life Justices are likely to be quite conservative on many other issues that Democrats care about. So my guess is that Roe will be with us for a fairly long time. It will be cut back, weakened, and enervated in countless ways, but it probably will stick around.

One thing that could significantly change the political stakes of Roe, interestingly, is not abortion. It is the policy issues posed by new forms of genetic technology, which I will discuss in a future post.