Understanding an Alliance: Part 2

by Oxford Students for Life

White House

II. The Plan to Overturn Roe v. Wade

In the wake of Roe v. Wade, pro-lifers needed a new strategy. First, the pro-life movement tried to pass a human life amendment to the US Constitution, which would have protected human life from conception until natural death. Over the next decade, the multiple attempts to propose this amendment in Congress failed to reach formal debate. This strategy achieved little, so pro-lifers changed their tack, deciding to strike at the heart of the problem. The new goal was to overturn Roe v. Wade directly. The means would be to change the composition of the Supreme Court. After all, to overturn Roe, all one needed was five out of nine judges.

This aligned with the plans of conservatives. Frustrated by judicial activism that only advanced liberal policies, conservatives were searching for more restrained judges to appoint to the court. Their most powerful intellectual allies were constitutional originalists. Both originalists and pro-lifers began to focus on changing the composition of the Supreme Court. But they faced a difficult battle. A 7-2 majority had decided Roe v. Wade. To overturn it, at least three judges needed to be replaced.

By adopting this strategy, pro-lifers knew they were setting themselves up for a long, inter-generational struggle, for three reasons. First, Supreme Court appointments are for life. To change the composition of the court, one has to wait for judges to retire or die. Consequently, few Presidents ever get to choose more than one or two judges—and they would have to be the right judges. But that raises the second issue: one needs a President sympathetic to the pro-life cause. So to change the court, one would need the right President as well as an opportune vacancy. Third, the US Senate must confirm the President’s appointments to the Supreme Court by a simple majority. If no majority is reached, the President has to appoint someone different. So the Senate would have to be favourable to the President’s choice as well. These three forces could hardly align more than once or twice a decade. It was therefore, a strategy that depended on finding good judges, supporting good politicians, and good luck.

 

III. The Battle for the Supreme Court

In 1980, the conservatives gained the upper hand. They entered the White House with Ronald Reagan, who commanded an energetic and strongly conservative administration. But pro-lifers and originalists had yet to make their case for changing the composition of the court. In 1981, when a vacancy opened up, Ronald Reagan made his first pick for the Supreme Court, Sandra Day O’Connor. Reagan was focused on fulfilling a campaign promise to nominate a woman to the court, and was less concerned about scrutinizing O’Connor on conservative jurisprudence or on abortion. She was considered generally conservative and aspiring for a more restrained, less activist Supreme Court, but was ambiguous on the subject of abortion. Pro-lifers were somewhat disappointed, but hopeful that she would be on their side.

In 1986, Reagan had another chance. Warren Burger, who had voted for Roe v. Wade, resigned as chief justice. This time, the originalist and pro-life alliance had picked up political influence. It had a strong advocate within the White House, in the person of Attorney General Edwin Meese. Meese advised Reagan to move William Rehnquist, who had written a forceful dissent to Roe v. Wade, to Chief Justice, leaving a vacancy for associate justice. To replace him, Meese suggested Robert Bork and Antonin Scalia, the most prominent originalist judges in the country. Reagan chose Scalia. The Democrats in the Senate decided to fight the decision to move Rehnquist, but they lost 65-33. Having tried to stop Rehnquist and failed, the Democrats had no political capital to thwart Scalia, and his appointment was confirmed unanimously.

In 1987, another seat opened up. This time, Reagan decided to choose Robert Bork. But liberals were gathering a fight. They were anxious that with Bork on the court, their liberal majority would be decisively weakened. They decided to block him. In fact, “block” is something of an understatement. A more appropriate term is “carpet-bomb.” Through an impressive national mobilization, the “Block Bork” campaign set out to destroy Bork and his reputation.

On July 1st Reagan announced Bork as his nominee. Forty-five minutes later, Democratic Senator Ted Kennedy took the floor, declaiming:

‘Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens…’

It was blatant slander—not a single line was an accurate representation of Bork’s judicial philosophy. But as a way to organize opposition, it worked. Senators swore to filibuster the appointment if Bork did not accept Roe v. Wade as law. Labour unions, women’s groups, bar associations, civil liberty groups, many of which had hitherto kept themselves neutral over court nominations, spoke out against Bork. Across the country, public protests were organized. On the first day of the Senate’s hearing, Gregory Peck narrated a nation-wide television advertisement against Bork. Bork was defeated handily in the Senate, 58-42. So ferocious, yet so successful, was the savaging of Bork’s reputation that a neologism emerged, “to Bork,” now featured in the OED:

To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.

Reagan and Meese were infuriated by the whole affair, but they knew they were beaten. The White House at the time was reeling from the Iran-Contra scandal, and it was deemed expedient to pick a moderate conservative who would be confirmed. They picked Anthony M. Kennedy. He was asked whether he supported a constitutional right to privacy—in light of Roe, code for “a right to abortion.” He did. The Senate confirmed him without incident.

Following Reagan as President, George H.W. Bush had the opportunity to appoint to replace two justices who supported Roe v. Wade with two who did not. He chose David Souter and Clarence Thomas. In the first case, Bush opted for an uncontroversial pick—Souter’s record on contentious topics was vague. In the second case, Bush opted for a well-known conservative. It provoked a vicious nomination battle, but the Senate confirmed him 52-48. With five justices appointed between them, Reagan and Bush had succeeded in changing the composition of the court and appointing a majority. But would this majority take down Roe v. Wade?

 

Nathan Pinkoski is a DPhil candidate in Political Philosophy at the University of Oxford

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