SHOULD CONSERVATIVES GIVE UP ON SUPREME COURT?-HUMAN EVENTS 7/11/92
In the wake of the Supreme Court's June 29 decision in which a
plurality of two justices appointed by Ronald Reagan and a third
named by George bush went out of their way t reaffirm the court's
1973 invention in Roe v. Wade of a purported constitutional right
to have abortions, stunned conservatives were asking themselves
what more, if anything, can be done to bring a halt to the
arbitrary - and blatantly unconstitutional-usurpation of power by
judges in this country.
There have been five vacancies on the nine-member court since
1981. On each and every one of those occasions liberals accused
the White House of administering ideological "litmus" tests on a
variety of political issues to potential nominees.
And just as frequently Administration spokesmen denied the
imposition of such tests, insisting that, in choosing justices,
Presidents Reagan and Bush had only one overriding objective: that
those selected for the court would honor their solemn obligation as
judges - indispensable to our system of separation of powers - to
interpret the Constitution, not impose their own personal whims
about what they would like it to say.
Yet in their jointly written plurality opinion in Planned
Parenthood v. Casey, Reagan-appointed Justices Sandra Day O'Connor
and Anthony Kennedy, together with Justice David Souter, a Bush
appointee, committed the one transgression that the chief
executives to whom they owe their high positions had taken pains to
avoid - judicial activism.
At issue in the case was the constitutional validity of a
Pennsylvania statute placing several restrictions on the process of
obtaining an abortion in that state, and many had thought that the
High Court might use the case to reverse the controversial holding
in Roe that purported to discern a constitutionally protected
"right" to an abortion. The Bush Administration, in its amicus
brief, had sought such a reversal.
In the end the court, with the concurrence of O'Connor,
Kennedy and Souter, upheld most, though not all, of the limitations
enacted by Pennsylvania. Yet, far from overturning Roe, the three
Reagan-bush appointees went out of their way to reaffirm what they
termed Roe's "central holding": that the availability of abortion
prior to "viability" of the fetus - i.e., the point when the unborn
child is capable of living outside the mother's womb-is a right
grounded in the Constitution.
In conjunction with the even stronger pro-abortion position of
the court's long-time zealots for abortion-on-demand - Justices
Harry Blackmun, who wrote the 1973 opinion in Roe, and John Paul
Stevens - the effect of the plurality opinion was to reaffirm the
notion of a constitutional "right" to an abortion, despite the
absence of any credible evidence for such a finding.
As Justice Antonin Scalia noted in a scathing dissenting
opinion that was joined by Chief Justice William Rehnquist, Justice
Byron White, and the most recent addition to the court, Clarence
Thomas, it is obvious that abortion is not a constitutionally
protected "liberty" for the same reason that it's obvious "that
bigamy is not constitutionally protected - because of two simple
facts: (1) the Constitution says absolutely nothing about it, and
(2) the longstanding traditions of American society have permitted
it to be legally proscribed."
Indeed, as Chief Justice William Rehnquist explained, the
historical traditions of the American people in no way support the
view that the right to terminate one's pregnancy is "fundamental."
On the contrary, wrote Rehnquist, "The common law which we
inherited from England made abortion after 'quickening' an offense.
"At the time of the adoption of the 14th Amendment [cited by
O'Connor-Kennedy-Souter as the locus of the constitutional abortion
"right"], statutory prohibitions or restrictions on abortion were
commonplace; in 1868, at least 28 of the then 37 states and eight
territories had statutes banning or limiting abortion. by the turn
of the century virtually every state had a law prohibiting or
restricting abortion on its books."
By the middle of the current century, the chief justice
continued, "a liberalization trend had set in. But 21 of the
restrictive abortion laws in effect in 1868 were still in effect in
1973 when Roe was decided, and an overwhelming majority of the
states prohibited abortion unless necessary to preserve the life or
health of the mother.
"On this record, it can scarcely be said that any deeply
rooted tradition of relatively unrestricted abortion in our history
supported the classification of the right to abortion as
'fundamental' under the Due Process Clause of the 14th Amendment."
As in Roe, then, the "right" to abortion elaborated in Planned
Parenthood v. Casey had nothing to do with the Constitution. It
was a judge-made law, pure and simple. Illegitimate in any case,
a judicial power grab of this kind is particularly disgraceful
coming from justices heretofore known as judicial conservatives or
moderates.
Most shocking about this court decision was the role of
Justice Kennedy. When nominated by President Reagan in 1987,
following the defeat of the Robert Bork nomination, then-Judge
Kennedy of the Appeals Court for the 9th Circuit brought with him
a record of well-enunciated respect for judicial restraint.
As a justice of the High Court, Kennedy not only continued to
burnish that record in general, but, on the specific issue of
abortion, he joined just three years ago in a plurality opinion in
Webster v. Reproductive Health Services that would have directly
overturned Roe, saying that there was no more right to terminate a
pregnancy than to engage in any other action not specifically
protected by the Constitution.
Whether legally or philosophically, there is no way to square
the position taken by Kennedy last week with his position in
Webster. The judicial unrestraint in Casey represents a shift so
abrupt that it is hard to view it as less than a betrayal of
principle.
Though O'Connor had always been regarded as somewhat less
faithful to judicial conservatism than Kennedy, her position in
Casey also represented a reversal of some of her past
pronouncements on abortion and a pronounced step toward unabashed
judicial activism.
As the New York Times reported last week, "In her early
opinions, Justice O'Connor proposed replacing Roe v. Wade with an
'undue burden' test that would have allowed more restrictions than
the test she, Justice Kennedy and Justice Souter adopted today.
"Because she had initially referred to the state's interest in
the life of the fetus as 'compelling, it had not been at all clear
whether her original 'undue burden' test would find it
unconstitutional for a state to ban abortion"- something a state
explicitly cannot do under the opinion co-authored by O'Connor in
Casey.
Souter, of course, was a pig in a poke from the outset, having
brought to his confirmation hearings virtually no "paper trail" and
little more than an endorsement by the moderate, pro-abortion Sen.
Warren Rudman (R.-N.H.). But Souter's current disposition, along
with that of O'Connor and Kennedy, seems all too clear.
Together, the three justices have sent a loud signal that, in
cooperation with the court's liberals, Blackmun and Stevens, they
intend to forge a new direction for the court that is far less
judicially conservative than had been expected.
For those who were paying attention, a warning shot came even
before Casey when, by the same 5-to-4 majority, the court on June
24 banned the use of prayers at public-school graduation
ceremonies- a practice that has been as ubiquitous a part of
American tradition since the time of the Founding Fathers as legal
abortion conspicuously has not been.
As if to turn the knife after first sticking it into those who
revere the tradition of judicial restraint, the three justices not
only jointly authored the plurality opinion, which is unusual, but
the read their decision from the bench for dramatic effect.
Their clear goal was to emphasize that, no matter that
millions of Americans resent the hijacking of the Constitution
represented by Roe, the controversial decision is still going to
be, for the foreseeable future, the unrepealable law of the land.
It was a thoroughly disgusting performance. As both Chief
Justice Rehnquist and Justice Scalia observed, Justices O'Connor,
Kennedy, and Souter could not even bring themselves "to say that
Roe was correct as an original matter." Instead, they said that
what was important "is not the soundness of Roe's resolution of the
issue, but the precedential force that must be accorded to its
holding."
So instead of arguing that Roe was correctly decided, the
unholy trio devoted many pages to a discussion of stare decisis,
the legal doctrine that states that, when possible, the court
should "abide by, or adhere to, decided cases."
Yet, noted Rehnquist and Scalia, the plurality decision's
discussion of stare decisis was actually bogus since Kennedy et al.
did not actually uphold Roe and related cases in their original
form but imposed their own new version of what Roe should mean.
While acknowledging that they may not have supported Roe had
they been on the court in 1973, the three justices argued that
people have come to rely on the Roe precedent, that "people have
organized intimate relationships and made choices that define their
views of themselves and their places in society" based on the
availability of abortion, and that it would be disruptive to
reverse the decision now, even if it was wrongly decided in the
first place.
The plurality gave as still another reason for not overturning
Roe that to "overrule under fire... would subvert the court's
legitimacy." In short, they did not want to be seen as bowing to
pressure from right-to-life activists who have demonstrated against
a decision that they are convinced was wrongly decided.
But this was silly on its face. For one thing, the justices
do not seem to mind that Roe v. Wade might be seen as having
catered to the demands of those who favor abortion-on-demand. The
Chief Justice pointed to the obvious when he noted that the court
has been subjected to "political pressure" from both sides of the
abortion issue.
Moreover, as Justice Scalia wrote, for a court majority that
says it can make up the law as it goes along, "unrestrained by
meaningful text or tradition," to then state that the court "must
adhere to a decision for as long as the decision faces 'great
opposition' and the court is 'under fire' acquires a character of
almost czarist arrogance.
"We are offended by these marchers who descend upon us, every
year on the anniversary of Roe to protest our saying that the
Constitution requires what our society has never thought the
Constitution requires. These people...must be taught a lesson. We
have no Cossacks, but at least we can stubbornly refuse to abandon
an erroneous opinion that we might otherwise change-to show how
little they intimidate us."
As still another excuse for refusing to overturn Roe whether
or not it was correctly decided initially, the three justices wrote
that, when the court has decided a case "in such a way as to
resolve the sort of intensely divisive controversy reflected in
Roe," the court should stand its ground and tell both sides to
acquiesce in the court's decision.
But this description of what the court had achieved in handing
down Roe suggests that the three justices have lost their grip on
social reality. Far from "resolving" a controversy, the court's
Roe edict took what was a relatively mild dispute in some of the
states and fanned it to a new level of intensity nationwide.
In words that remind us of the value of our heritage of
federalism and states' rights, Scalia noted:
"Not only did Roe not, as the court suggests, resolve the
deeply divisive issue of abortion; it did more than anything else
to nourish it, by elevating it to the national level where it is
infinitely more difficult to resolve. National politics were not
plagued by abortion protests, national abortion lobbying, or
abortion marches on Congress, before Roe v. Wade was decided.
"Profound disagreement existed among our citizens over the
issue-as it does over other issues, such as the death penalty-but
that disagreement was being worked out at the state level. As with
many other issues, the division of sentiment within each state was
not as closely balanced as it was among the population of the
nation as a whole, meaning not only that more people would be
satisfied with the results of state-by-state resolution, but also
that those results would be more stable. Pre-Roe, moreover,
political compromise was not possible."
But, said Scalia, "Roe's mandate for abortion-on-demand
destroyed the compromises of the past, rendered compromise
impossible for the future, and required the entire issue to be
resolved uniformly, at the national level. At the same time, Roe
created a vast new class of abortion consumers and abortion
proponents by eliminating the moral opprobrium that had attached to
the act...
"Many favor all of those developments," said Scalia, "and it
is not for me to say that they are wrong. But to portray Roe as
the statesmanlike 'settlement' of a divisive issue, a
jurisprudential Peace of Westphalia that is worth preserving, is
nothing less than Orwellian."
That justices appointed by Reagan and Bush have turned their
back on restraint and apparently set the stage for the court to
undertake a new round of the judicial activism that conservatives
had thought a thing of the past is a profound disappointment. Have
the Supreme Court appointments of Reagan and Bush been for naught?
many wonder.
Such frustration is understandable, but there have been some
gains. Thus, even while maintaining that there is a constitutional
right to abortion, last week's court decision allowed some state
limits on abortion that had not been allowed before. Most
importantly, the Casey decision did newly specify that states can
ban abortion except to save the life or health of the mother once
an unborn child has reached "viability," which had not been allowed
under some past court rulings.
The court also allowed Pennsylvania to require parental
notification before a minor can get an abortion and upheld the
state requirement of a 24-hour waiting period after giving informed
consent to a physician. (On the other hand, the court disallowed
a provision requiring wives to inform their husbands before
aborting a baby that was also his child.)
Probably the best grounds for hope at this stage, however, is
that, for all of the disappointment of last week's decision, the
court fell only one vote short of overturning Roe ad of upholding
school prayer, which means that further changes in the composition
of the court may yet make a reversal possible. It should be
remembered, moreover, that other Reagan and Bush nominees have not
disappointed but, indeed, form the hard core of the court's current
conservative bloc.
President Bush, who is in trouble with conservative groups,
may be able to regain some conservative support by pledging, if
reelected, to redouble his commitment to choosing only judges who
will interpret and not make the law. Last week's betrayal shows
how difficult such a quest is, but it is clearly not impossible.
As constitutional scholar Bruce Fein points out, the key
lesson that should come out of last week's decision is that, in
nominating new judges, it is not enough to select candidates who
have judicially conservative instincts; they must have judicially
conservative convictions.
