My previous post discussed how Roe was almost overruled in Casey. This post explains why Roe was not overruled in Webster v. Reproductive Health Services in 1989, after Justices Scalia and Kennedy joined the Court. The short answer is that Scalia and O'Connor could not agree on a common solution, and Chief Justice Rehnquist was unable to exert sufficient diplomacy to come up with a working majority. This story has been told before in Edward Lazarus's Closed Chambers (he clerked for Blackmun during this term), but the Blackmun papers offer some new insights into what happened.
Webster was argued April 26th, 1989 and decided July 3d, 1989. On April 28th, the Court met in conference to discuss the case. This conference was particularly important because it was the first time that the two newest Justices, Scalia and Kennedy, would announce their views on Roe v. Wade. Blackmun's notes indicated that there were five votes to uphold the Missouri statute in its entirety: Chief Justice Rehnquist, Justice White, Justice O'Connor, Justice Scalia, and Justice Kennedy, but they wanted to do so for different reasons.
Chief Justice Rehnquist wanted to reverse the lower court and uphold the Missouri law. He wanted to subject abortion regulations to a rational basis test, although he would stop short of saying that outright criminalization of abortion as in the original Texas statute "is now OK." White was basically in agreement-- he would uphold the Missouri statute.
Justice Brennan would have affirmed the lower court and struck down the Missouri statute. Roe was "correct" he said. It involved "[a] fundamental right." Marshall agreed. He would uphold what lower court did across the board. Blackmun also agreed, although his notes also indicate he might reverse on the preamble.
Stevens wanted to uphold some parts and strike down others. The "Admin[istration] did us a disservice by raising t[he] issue" of overruling Roe. He might agree with Rehnquist that the preamble to the Missouri statute-- stating that life begins at conception-- presented no problems because it had no legal effect.
O'Connor's views of Roe had not changed. I "[a]dhere to what I have written," she said. She would "recognize a valid st[ate] interest" in potential life throughout the pregnancy. She would not "reject Griswold and Eisenstadt," and would go no further than this.
Scalia spoke next: "I may have t[o] confront Roe," he said. "I just disagree with it." "We [should] set it aside when we can." The problem would get "no better as time goes on," although perhaps the Court "need n[ot] reach the issue here."
Kennedy wanted to uphold the testing requirements, which he thought were "probably invalid under Roe," and he wanted to "cut back on this." "I taught [Roe] for ten years," Kennedy remarked. "On[] pure stare decisis [grounds I] would leave [it] alone," he said, "[b]ut [it] continues to do damage to the Court, [to] the institution of judicial review, and [to the] conception of the judge's proper position and role." Kennedy would use the Due Process Clause, but not recognize the "fundamental rights of women." He would "[r]eturn this debate to the democratic process. It will protect the rights of young women." Kennedy wanted to reach the merits only after a discussion of the "methodology and structure of Roe."
By the end of the conference, there were five solid votes for upholding the Missouri statute. This included four votes for gutting or overruling Roe: Rehnquist, White, Scalia, and Kennedy. O'Connor, by contrast, wanted to use her "undue burden" test. Brennan and Marshall wanted to strike down the challenged provisions across the board, while Blackmun and Stevens wanted to strike down parts.
Rehnquist assigned himself the majority opinion. He hoped to write something that would bring O'Connor into the fold. He circulated his first draft on May 25th, styled as the Opinion of the Court. It rejected Roe's trimester system and the cutoff at viability, and held that abortion regulations were permissible if the state's regulation "reasonably furthers the state's interest in protecting potential human life." "To the extent indicated in our opinion, we modify and narrow Roe and succeeding cases."
Rehnquist's approach was clever, but it fooled no one. It was obvious to all that the Chief Justice had just overruled Roe without saying so. On May 30th, Stevens sent him a letter making precisely this point. Rehnquist had announced what was effectively a test of minimum rationality for all abortion regulations:
If a simple showing that a state regulation "reasonably furthers the state interest in protecting potential human life" is enough to justify an abortion regulation, the woman's interest in making the abortion decision apparently is given no weight at all. A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test. Because the test really rejects Roe v. Wade in its entirety, I would think that it would be much better for the Court, as an institution, to do so forthrightly rather than indirectly with a bombshell first introduced at the end of its opinion.
. . . .
As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.
Respectfully,
John
Rehnquist did not worry too much about Stevens, who was not going to vote with him anyway. The real problem was O'Connor. By choosing a test of minimum rationality, he had rejected not only Roe v. Wade but also O'Connor's "undue burden" test. Perhaps he hoped that O'Connor would go along, but she refused to budge. She circulated the second draft of her views on June 26, now styled "concurring and concurring in the judgment in part and dissenting in part."
The next day, Rehnquist submitted his fourth draft, still as the Opinion of the Court. Perhaps he hoped he could still keep his majority together. But the day after that, on the 28th, Blackmun noted in the margins of the second draft of his dissent that the "majority" was now a "plurality." At this point, Scalia jumped ship and wrote a separate opinion arguing that Roe should be overruled. Apparently, Scalia had gotten over his the initial reluctance to confront Roe that he had expressed at the April 28th conference.
One might well ask why Rehnquist didn't write an opinion that rejected the strict scrutiny language of Roe, Akron, and Thornburgh and simply said that the Court would decide whether rational basis or undue burden applied in the next case? Perhaps this might have mollified O'Connor, but it would have lost Scalia, who would only join an opinion that overruled Roe or treated it as a dead letter. In the end, neither Scalia nor O'Connor joined his opinion treating Roe as a rational basis case. Rehnquist discovered that he had been too clever for his own good.
I don't think anyone could've written an opinion on this case Scalia would've joined in, he wasn't just ready to reject Roe, with the mood he was in he probably would've required some summary executions to go with it...I think there's an argument to be made for his Webster opinion to be the root cause of every time O'Connor left him high and dry over the next decade and a half, he was so mean...
ReplyDeleteI don't think anyone could've written an opinion on this case Scalia would've joined in, he wasn't just ready to reject Roe, with the mood he was in he probably would've required some summary executions to go with it...I think there's an argument to be made for his Webster opinion to be the root cause of every time O'Connor left him high and dry over the next decade and a half, he was so mean...
ReplyDeleteI don't think anyone could've written an opinion on this case Scalia would've joined in, he wasn't just ready to reject Roe, with the mood he was in he probably would've required some summary executions to go with it...I think there's an argument to be made for his Webster opinion to be the root cause of every time O'Connor left him high and dry over the next decade and a half, he was so mean...
ReplyDeleteI don't think anyone could've written an opinion on this case Scalia would've joined in, he wasn't just ready to reject Roe, with the mood he was in he probably would've required some summary executions to go with it...I think there's an argument to be made for his Webster opinion to be the root cause of every time O'Connor left him high and dry over the next decade and a half, he was so mean...
ReplyDeleteI don't think anyone could've written an opinion on this case Scalia would've joined in, he wasn't just ready to reject Roe, with the mood he was in he probably would've required some summary executions to go with it...I think there's an argument to be made for his Webster opinion to be the root cause of every time O'Connor left him high and dry over the next decade and a half, he was so mean...
ReplyDeleteJustice Scalia didn't really concur with what Rehnquist wrote anyhow -- it is unclear what other than the allowing a woman to have an abortion if her life was in danger (see Rehnquist's dissent in Roe) would be required under the plurality, but it surely was more than Scalia would wish. He wanted Roe dead and buried with a dance done on its grave.
ReplyDeleteWhat CJ Rehnquist tried to do here was really unconsciousable on a purely principled standpoint. Using a law that dealt with a few rather obscure regulations to sub silento overrule a major precedent is just patently wrong. Also, the plurality's playing around with the viability test rules required by the law to force this result is as crude.
Justice O'Connor was right ... Justice Scalia was just mad she actually wanted to be principled.
If I recall correctly from Lazurus, Scalia was willing to join Rehnquist's opinion so long as it commanded a majority, but jumped ship when O'Connor refused to join. Do the Blackmun papers confirm/challenge this?
ReplyDelete
ReplyDeletethanks for sharing..
please visit my blog
jaring futsal || jaring golf || jaring kassa / jaring polynet || jaring pengaman proyek || jaring pengaman bangunan ||
jaring pengaman gedung || jaring gawang || jaring paranet / jaring tanaman || rumput sintetis / rumput futsal ||
tangga darurat || jaring cargo || agen jaring || jaring outbound || rumput futsal /jasa pengecatan || tali tambang ||
thanks so much i like very so much your post
ReplyDeleteحلي الاوريو الفطر الهندي صور تورتة حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه
obat mengatasi herpes
ReplyDeleteobat mengobati herpes
obat medis herpes kulit
obat herpes yang manjur
obat untuk herpes mulut
obat herpes di muka
obat herpes yg mujarab
obat tradisional herpes mulut
obat tradisional mengobati herpes
obat untuk menghilangkan herpes
cara menghilangkan herpes kelamin
obat nyeri herpes
obat nyeri herpes zoster
obat pereda nyeri herpes
nama obat herpes genitalis
nama obat herpes di apotik
obat penghilang nyeri herpes
obat untuk nyeri herpes
nama obat herpes
obat penghilang rasa nyeri herpes
nama obat herpes zoster
cara mengobati herpes kelamin
nama obat herpes simplex
obat pereda nyeri herpes zoster
obat herpes oles
obat herpes oral
obat oles herpes zoster
obat herpes untuk orang hamil
obat-obat herpes
obat herpes pada anak
obat herpes pada bibir
Obat herpes
obat herpes alami
Obat sakit kencing keluar nanah
ReplyDeleteObat untuk kencing keluar nanah
Obat kimia kencing nanah
Obat kampung kencing nanah
Obat kapsul kencing nanah
Obat khusus kencing nanah
Kamboja obat kencing nanah
Konsultasi obat kencing nanah
Kunyit obat kencing nanah
Kulit manggis obat kencing nanah
obat sipilis denature indonesia
obat sipilis resep dokter
obat sipilis denature
obat sipilis paling manjur
obat sipilis alami
obat sipilis di apotik umum
obat sipilis kaskus
obat sipilis pada wanita
obat sipilis paling ampuh
Pengobatan herpes di kelamluan pria
jenis obat herpes
jamu obat herpes
jagung obat herpes
obat herpes kulit
obat herpes kulit alami
obat herpes kulit pada bayi
obat herpes kulit di apotik
obat herpes kelamin pria
obat herpes kemaluan
ramuan obat herpes tradisional
ReplyDeleteresep obat herpes
ramuan obat herpes
obat herpes kulit ringan
obat herpes selain acyclovir
obat herpes salep acyclovir
obat herpes secara alami
obat herpes sembuh total
obat herpes selangkangan
Obat kutil kelamin/jengger ayam
Obat kutil kelamin paling murah
Obat kutil kelamin dari dalam
Obat antibiotik kutil kelamin
Obat kutil kelamin yang dijual di apotik
Beli obat kutil kelamin di apotik
Nama obat kutil kelamin di apotek
Obat kutil kelamin yang tersedia di apotik
Cuka apel obat kutil kelamin
Obat ampuh menghilangkan kutil kelamin
Obat alami menyembuhkan kutil kelamin
Obat apotek untuk kutil kelamin
Apa obat untuk kutil kelamin
Obat alami untuk mengobati kutil kelamin
Obat kutil kelamin yang ada di apotik
Obat kutil kelamin bandung
Beli obat kutil kelamin
Dimana beli obat kutil kelamin
Obat tradisional buat kutil kelamin
ReplyDeleteObat salep buat kutil kelamin
Www.obat kutil kelamin.com
Obat cina kutil kelamin
Cuka obat kutil kelamin
Obat cina untuk kutil kelamin
obat herpes secara tradisional
obat herpes soster
obat herpes selain asiklovir
obat herpes simplex untuk ibu hamil
obat herpes simplex pada anak
obat herpes simplex adalah
obat sakit herpes kulit
obat salep herpes zoster
obat salep herpes kelamin
obat herpes tradisional
Obat kutil kelamin yang untuk wanita hamil
obat kutil di sekitar kelamin
obat sakit kutil kelamin
obat kutil kelamin terbaik
obat kutil kelamin salep
obat kutil kelamin terbaru
obat tradisional kutil kelamin
obat tradisional untuk kutil kelamin
obat herbal untuk kutil kelamin
obat tradisional untuk menyembuhkan kutil kelamin
obat kutil kelamin yang tersedia di apotek
Obat alami untuk mengobati kutil kelamin
ReplyDeleteObat kutil kelamin yang ada di apotik
Dimana beli obat kutil kelamin
Obat tradisional buat kutil kelamin
Beli obat kutil kelamin
Obat salep buat kutil kelamin
Www.obat kutil kelamin.com
Obat cina kutil kelamin
Cuka obat kutil kelamin
Obat cina untuk kutil kelamin
Obat cina penghilang kutil kelamin
Obat china untuk kutil kelamin
Obat kutil di kelamin pria
Obat tradisional kutil di kelamin
Obat kutil di daerah kelamin
Obat untuk menghilangkan kutil di kelamin
Obat dokter untuk kutil kelamin
Obat kutil di sekitar kelamin
Obat farmasi untuk kutil kelamin
Obat generik untuk kutil kelamin
Obat kutil kelamin imiquimod
Jual obat kutil kelamin
Jual obat kutil kelamin murah
Obat kutil kelamin yg di jual di apotik
Jual obat penghilang kutil kelamin
A hero can go anywhere, challenge anyone, as long as he has the nerve.
ReplyDeleteAgen Judi Online Terpercaya