Abortion and the Courts: A Brief Political History of Judicial Conservatism

 
 

Legalized, unrestricted abortion can’t be blamed on conservative judicial policy just because Republican justices voted for it. Judicial conservatism as we now understand it came after Roe. The first of a two-part series.

A longstanding complaint from certain pro-lifers is that the history of abortion jurisprudence is a history of Republican appointees liberalizing abortion laws and keeping the abortion license unrestricted. It is a complaint that soi dissant pro-lifers echo to discredit Republicans not infrequently, and one that has occasional currency among some broader segments of the conservative movement. In all cases, the point of the complaint is the same: despite claims to the contrary, a given election is not an essential “judges election” because Republican judges are—at best—part of the problem and—at worst—the heart of the problem.

It is true as a matter of vote-counting: Roe v. Wade (1973) was written by Republican appointee Harry Blackmun, joined by fellow Republican appointees Potter Stewart, Lewis Powell, and Warren Burger; Planned Parenthood v. Casey (1992) was written by a plurality of Sandra Day O’Connor, Anthony Kennedy, and David Souter, all appointed by Republicans. Yet this way of looking at it misunderstands the history of judicial appointments and the development of judicial conservatism.

In today’s essay, I will show, first, that it is anachronistic to blame Roe on Republican judicial policies, because “conservative” jurisprudence as it is now understood and embraced by the GOP establishment postdates Roe, and second, that once coherent approaches to judicial conservatism were formulated, such as modern originalism, Republican policy created the institutional groundwork for their flourishing with astonishing rapidity. In tomorrow’s essay, I will argue that this effective development in judicial policy has influenced the courts for the better and continues to do so.

Nixon, “Strict Constructionism,” and Pre-Roe Conservatism

The modern conservative movement’s engagement with law and the courts is best traced to the Nixon administration’s reaction against the Warren Court. During the tenure of Chief Justice Earl Warren (1953-1969), the Court asserted itself more aggressively than ever before on a wide variety of issues and for the first time, in Cooper v. Aaron (1958), declared itself the supreme interpreter of the Constitution. Some of this judicial muscle-flexing was clearly admirable and bore welcome results, such as civil rights triumphs like Brown v. Board of Education (1954) and Bolling v. Sharpe (1954). Other exercises of judicial power were less sound.

In antitrust law, for example, the Court endorsed an expansive reading of Section 5 of the Federal Trade Commission Act, authorizing the Federal Trade Commission to sanction allegedly anticompetitive behavior in its “incipiency” (Brown Shoe Co., Inc. v. United States, 1962). In criminal procedure there was Wong Sun v. United States (1963) (holding that evidence derived from an illegal search was inadmissible as “fruit of the poisonous tree”), Massiah v. United States (1964) (holding that statements made by a suspect outside the presence of his attorney were inadmissible at trial), and Miranda v. Arizona (1966) (famously inventing the “right to remain silent”). In the course of dismantling the shameful legal edifice of Jim Crow, the Court laid the groundwork for forced busing in Green v. County Schoolboard of New Kent County (1968).

These Warren Court developments, in particular those involving criminal procedure, had profound effects on American politics and even American culture. Crime soared and policing became more difficult. It’s no coincidence that after Miranda, films like Dirty Harry (1971) and Death Wish (1974) were wildly popular. As a result, the public embraced a presidential candidate who embodied the concerns of that “silent majority” and promised to appoint “strict constructionists” to the bench in order to curb the excesses of the previous decade.

When Richard Nixon was elected he delivered on this promise, replacing Chief Justice Earl Warren with Warren Burger and appointing Republican lawyer Harry Blackmun, noted anti-communist Lewis Powell, and right-wing Assistant Attorney General William Rehnquist to the Supreme Court. As they took their places on the Court, it became clear that the tide had turned on the Warren era. With Blackmun and Burger on the bench, the Miranda holding was reinterpreted to allow incriminating statements to be used for impeaching witnesses in Harris v. New York (1971). Once Powell and Rehnquist joined them, the Court further favored police over criminals in cases like Rhode Island v. Innis (1980) and New York v. Quarles (1984); in the former, Nixon’s appointments made up four of the six majority votes, and in the latter, they were four of the five. In cases like BMI v. CBS (1979), Nixon’s Court saw a shift from “per se” antitrust rules and expansive enforcement to “rule of reason” analysis with its greater deference to the exigencies of competition in the open market. Even in busing, Nixon’s four justices joined Potter Stewart to find forced busing unconstitutional in Milliken v. Bradley (1974).

By the standard of rolling back the Warren Court, Nixon’s appointees were tremendously successful. The right to remain silent and busing, however, were not to prove the most judicially contentious issues of the decades to come. It is hard to imagine that the specter of abortion on demand weighed heavily on any judicial policy-makers’ shoulders while Nixon made his appointments. In fact, feminists opposed Harold Carswell (one of the two failed prior nominees for Blackmun’s seat) on the grounds that he was allegedly hostile to women. His crime? Being insufficiently sympathetic to mothers under Title VII of the Civil Rights Act. In the course of Betty Friedan’s Senate testimony against him, abortion was not even mentioned.

When the long-dormant issue of abortion came to the Court in 1973’s Roe v. Wade, 31 states had laws on their books restricting the practice while only four allowed it on demand. It was not until the previous year in Eisenstadt v. Baird that the Court had even decided that its earlier decision finding marital contraception protected by “emanations” and “penumbras” in the Constitution ought to be extended to apply to non-married individuals. By the time all of his appointees (except for Rehnquist) found a federal right to abortion in Roe, it was too late for Nixon even to know this was an issue relevant to judicial nominations.

The question was: how could judges who dutifully set about dismantling the “progress” of the Warren Court so solidly lack a robust constitutional framework that they would join a decision that liberal Professor John Hart Ely denounced as “not constitutional law and giv[ing] almost no sense of an obligation to try to be”?

The Development of Modern Judicial Conservatism

As that question was presenting itself, legal scholars were trying to come up with just such a framework. The result was that by the 1980s, legal conservatism meant more than simply not-Earl-Warren. Indeed, it meant a number of things, but most notably “originalism,” or some other commitment to the text of the Constitution coupled with the understanding of those who framed it.

In the minds of most observers, contemporary judicial conservatism is more or less synonymous with “originalism.” While the two categories do not overlap perfectly, it is not a stretch to say that originalism provided the backbone of judicial conservatism in its mature form. Originalism holds that laws ought to be interpreted in a manner consistent with their meaning at ratification, either by determining the original intent of their drafters (a disfavored method) or the original public meaning of the law when it was debated or promulgated (the method preferred by Robert Bork, of whom we shall hear more).

It is not hard to see why originalist judges would have been able to effectuate Nixon’s policy goals and also resist the Roe decision: the text of the Constitution and its amendments, as originally ratified, contemplate neither Miranda nor the right to abortion.

Surely Nixon and his fellow Republicans erred, then, by simply putting Republicans on the Court and not originalists. There is a glaring problem with this view in that, as a practical matter, there were no originalists when the Roe justices were being appointed. (Former Klansman, Democratic senator, and Supreme Court Justice—1937-1971—Hugo Black could be described as a proto-originalist, but his was more a facile and convenient textualism than a fully developed theory of originalism.) The seminal article on originalism, “Neutral Principles and Some First Amendment Problems,” by Robert Bork, appeared in the Indiana Law Journal in 1971, just one year before the Eisenstadt contraception decision, and two years before Roe. The most prolific exponent of originalism, the New Dealer Raoul Berger, who opposed both the “activism” of the Warren Court and the earlier “laissez-faire activism” of the Lochner era, published his magnum opus on originalism, Government by Judiciary, in 1977, after—and partly in response to—Roe.

This academic development in the 1970s resulted in the fairly quick adoption of originalism as the default judicial theory of the conservative movement and—with the election of conservative Republican Ronald Reagan—the Republican Party. Most notably, originalist Edwin Meese joined the Reagan administration as a cabinet-level Counselor to the President for Policy and eventually as Attorney General. According to Judge Douglas Ginsburg of the D.C. Circuit, Meese’s “emphasis on originalism within the Department of Justice brought a nascent development from the legal academy into the real world of legal policy.”

Meese’s transformation of the Department of Justice roughly coincided with the establishment of the Federalist Society for Law and Public Policy Studies, founded in 1982. While neither explicitly originalist nor exclusively conservative (it has long branded itself as “conservative and libertarian”), the Federalist Society’s vision of developing a welcome space for conservative jurisprudence in the law schools, practice, and the judiciary made it possible to formulate and pass down coherent conservative methodologies like originalism.

Also in the 1980s the Reagan administration appointed many methodological conservatives to the various courts of appeals. Noted conservatives like Robert Bork (1982), Antonin Scalia (1982), Kenneth Starr (1983), James Buckley (1983), and Douglas Ginsburg (1986) were placed on the highly prestigious D.C. Circuit. Judges like Dairmuid O’Scannlain (1986), Frank Easterbrook (1985), J. Harvie Wilkinson (1984), Jerry Smith (1987), Edith Jones (1985), Danny Boggs (1986), J.L. Edmondson (1986), and Edmond Levy (1987) were placed on the various other circuit courts around the country. While they surely have not agreed on all the particulars of judicial methodology, what they have in common is a commitment to the faithful interpretation of the constitutional text, developed in conjunction with the growing public influence of originalism, in such a way that both the excesses of the Warren Court and the errors of the Burger Court would be avoided under their watches.

The cumulative effect of these four developments all over the course of ten to fifteen years (the exposition of originalism by scholars in the early 1970s, the foundation of the Federalist Society in 1982, the appointment of Meese as Attorney General in 1985, and the appointment of methodologically conservative judges during the Reagan presidency) was to establish in the 1980s what Nixon lacked in the early 1970s: a well-developed alternative to liberal jurisprudence with the academic, professional, and judicial infrastructure needed to flourish.

Tomorrow I will show how successful this sudden development was in the hands of the Republican Party and why those committed to the pro-life cause should be similarly committed to seeing through the entrenchment of modern judicial conservatism.

Michael A. Fragoso, J.D., writes from northern Virginia.

 

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