an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Forty years ago, I had the privilege of serving as a law clerk to Justice William J. Brennan, Jr. during the Supreme Court’s 1972-73 Term. It was an interesting year for sex at the Court. Three issues in particular bedeviled the justices that year: obscenity, abortion and the status of women under the Equal Protection Clause.
In Miller v. California and Paris Adult Theatre v. Slayton, the Court divided sharply on the issue of obscenity. These decisions were the culmination of a badly missed opportunity. After botching obscenity doctrine for more than a decade with a hodgepodge of incoherent standards and definitions, the justices finally got their act together in Stanley v. Georgia in 1969, holding that the private possession of obscenity could not constitutionally be prohibited. Stanley was surely understood as the precursor to the inevitable next decision holding that the government could not constitutionally prevent consenting adults from viewing, reading or distributing obscenity to other consenting adulting. But it was not to be.
With the collapse of the Warren Court and the appointment of four new justices by Richard Nixon, the jig was up. Although Justices Douglas, Brennan, Stewart and Marshall all dissented in Miller and Paris Adult Theatre on the ground that consenting adults have a First Amendment right to view, read and distribute obscenity to other consenting adults, they were outvoted by the four Nixon appointees (plus the ever-stodgy Justice White). Had the Court addressed this issue in 1969, when Justices Black and Fortas were still on the Court, the future of First Amendment law would have flowed quite differently that it has. But, alas, the opportunity was missed.
Roe v. Wade was a different matter entirely. Amazingly (or so it seems today), three of the four Nixon appointees (Burger, Blackmun and Powell) joined the four dissenters from the obscenity cases to hold that a women has a constitutional right to terminate an unwanted pregnancy. But how could that have been? How could three of Nixon’s four appointees have joined Roe? Given how Roe is perceived today, that seems unimaginable. They were, after all, conservatives. What this reveals, though, and what we inside the Court knew at the time, is that the justices did not think of Roe as all that controversial. Sure, they knew that crafting an intellectually compelling opinion was a challenge, but on the question of principle and outcome, the case seemed pretty easy. The justices knew that some academics might fuss about the precise rationale and that there would a public outcry among Catholics, but they would never have believed that Roe would still be a politically divisive issue today, forty years later. In thinking about Roe, it’s important to remember that at the time of the decision even most the conservative justices were convinced that it was right. Without them, Roe would have come out the other way.
On the question of the rationale for Roe, many critics of the opinion have argued that the Court should have conceptualized Roe as a sex discrimination case. That is, “if men got pregnant, abortion would be legal.” This is no doubt true, but to understand why this wasn’t the rationale of the Court in Roe its important to remember that at the same time that the justices were crafting the opinion in Roe they were fighting about Frontiero v. Richardson. In Frontiero, Justice Brennan tried to get his brethren to endorse the idea that laws discriminating against women called for heightened scrutiny. The Court had never before addressed this question directly. In Frontiero, Brennan drafted a pretty bold opinion (I’m proud to say that I had a hand in it) arguing that discrimination against women is, in important respects, analogous to discrimination against African-Americans, and therefore demands a more rigorous standard of review than mere rational basis.
In the end, though, Brennan won the votes of only Douglas, Marshall and White. Justice Stewart and the four Nixon appointees simply wouldn’t go along. Although Brennan thought he could win over both Stewart and Powell (or at least one of them), they both begged off, arguing that the Court shouldn’t address the question given the inevitability that the Equal Rights Amendment would soon be ratified. The battle over Frontiero is critical to understanding Roe, because unless the justices were prepared to embrace Brennan’s approach in Frontiero they couldn’t possibly decide Roe on sex discrimination grounds – and, hence, they didn’t.
It was, indeed, an interesting year.
Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. You can reach him/her by email at gstone at uchicago.edu