Ideas
June 24, 2022 2:11 PM EDT
Prager is the author of the Pulitzer Prize finalist The Family Roe: An American Story. He has written for the Atlantic, Vanity Fair, New York Times, and Wall Street Journal.

In 1921, the future Supreme Court justice Benjamin Cardozo wrote a book examining how judges write 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.”

When Roe reached the Supreme Court fifty years later, its justices were no more inclined to discuss how anything but law molded their opinions. Lewis Powell, for one, did not reveal that a few years before, a teenaged messenger at his Virginia law firm came to him for help after an illegal abortion killed his girlfriend. The young man had taken her to the abortion provider, and had since been charged with manslaughter. Powell later told his clerks that this double tragedy was why he had sided with the majority in 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 Roe opinion, had been working as counsel at the Mayo Clinic when he too encountered women harmed grievously by illegal abortion. But he said nothing publicly of them, just as he said nothing of his own daughter who, in 1966, was derailed by an unwanted pregnancy in college.

If the justices did not publicly confide these experiences, Blackmun did assert, in a preamble to 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. For abortion had not yet been overtaken by politics. Indeed, both Powell and Blackmun had been nominated to the court by the Republican Richard Nixon while their fellow justice, Byron White, who opposed legalizing abortion, had been nominated by the Democrat 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. Ronald Reagan endorsed background checks on buyers of guns after his press secretary was shot. Dick Cheney supported gay marriage after his daughter came out. John McCain co-sponsored an anti-torture amendment years after he himself had been tortured. And Joe Biden, a traditional Catholic, supported the idea of a constitutional amendment that would allow states to overturn Roe. “I’m probably a victim, or a product, however you want to phrase it, of my background,” he explained. Experience trumped politics.

When it came to abortion, however, more and more, politics trumped experience.

Pro abortion campaigners in Washington D.C. march for liberalization of US abortion laws, 1971.
Leif Skoogfors—Camera Press/Re​dux

The politicization of abortion began before Roe. In 1971, Nixon about-faced on the matter after his advisor Pat Buchanan suggested that he do so to win Catholic votes. The next year, a referendum in Michigan put the question of abortion on the ballot state-wide. 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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By 1980, the GOP was actively using abortion to court not only Catholics but the newly-forming evangelical vote. And after Reagan was elected president, he determined that federal judges, rather than laws, offered a clearer path to toppling 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.”

Judges themselves, however, could not be so explicit. 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.

More scrutiny of justices meant that there was less room for them to express personal convictions on abortion. For personal conviction would not only remind the public that justices, as Cardozo wrote, were human beings with outlooks on life, but might further be seen as political. Nonetheless, the court could still manage to transcend the politics enveloping abortion as when, in 1992, in the case of Planned Parenthood v. Casey, which concerned five abortion regulations, a Supreme Court composed of eight Republican appointees and Byron White preserved the core of Roe: legal abortion through viability.

One of the eight was Sandra Day O’Connor. The first female justice on the court, and a married mother of three, she wrote that same year of the influence her newly retired colleague Thurgood Marshall, the first Black justice, had had upon her and their 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. It is unsurprising that the one abortion regulation the plurality opinion in Casey that she helped to write struck down required married women to get consent from their husbands. 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 argued, in the words of Casey, that to overrule a precedent as longstanding as Roe would be to “surrender to political pressure.”) “No More Souters” became a conservative cry. And today, thirty years later, the Supreme Court reflects it. 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 would struggle to recognize the court he once served. For one hundred and one years after he observed that justices and their opinions are subject not only to law but life, both have been overtaken by politics.

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