Spotty SCOTUS Scouting

In 1992, five Supreme Court Justices stared more than 20 million executions directly in the eye, and unblinkingly declared that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

With those fulsome words, Roe v. Wade survived for another day. As I have previously written, even had Roe been overturned, the battle for the right to life would have been far from over. Roe is not, contrary to pro-choice propaganda, the be all and end all. The failure of Initiative 26 in Mississippi is quite tangible proof of this. But overturning Roe is a critically important first step, and the fact that the 1973 decision is still on the books is one of the pro-life movement’s greatest failures of the last forty years.

Who were those five Justices who saved Roe in 1992, and how did they make it to the Supreme Court? Were they liberal Democratic appointees, rammed through the Senate in a series of close votes? No, they were not. The chilling truth is that every last one was a Republican appointee. Four out of the five were appointed by presidents who publicly called for Roe to be overruled. Four out of the five were also confirmed in unanimous Senate votes. The lone exception, David Souter, had nine votes cast against his confirmation, but all were by pro-choice Democrats.

The case of Justice Blackmun is excusable. At the time of his nomination in 1970, abortion was just starting to become a judicial issue. Neither president Nixon, Senate Republicans, nor the nascent pro-life movement could have possibly foreseen how disastrous the appointment would turn out to be. But the pro-life movement’s apathy during later nominations is far less defensible.

The nomination of John Paul Stevens in 1975 represented the end of an era. It was the last nomination to largely escape the scrutiny of special interest groups. The confirmation hearing were short and perfunctory, and abortion was barely mentioned. It seems ridiculous now, but at the time passing a human life amendment looked easier to pro-lifers than getting an anti-Roe majority on the Court. Remember, Roe was a 7-2 ruling, and none of the 6 remaining pro-Roe Justices appeared likely to retire any time soon. But a bit of long-term thinking would have done a lot of good. In fact, it might not have even been all that long. Had Ford nominated a solid pro-lifer in 1975, and had Reagan nominated a solid pro-lifer in 1981, Roe may well have been overturned as soon as 1983, with Burger as the fifth vote due to lobbying from the two new pro-life Justices.

The confirmation of Sandra Day O’Connor in 1981 is perhaps the most tragic one of all, because it was the only time the pro-life movement even tried. O’Connor was a total cipher, but by sheer luck, she happened to go to the same church as Dr. Carolyn Gerster, a former president of the NRLC. Gerster knew all about O’Connor’s pro-choice votes as a member of the Arizona legislature, and made sure that Republican Senators knew about them. During confirmation hearings, Senators East of North Carolina, and Denton of Alabama grilled O’Connor about Roe, essentially giving her a choice of pledging to overrule it, or losing their vote.

Ronald Reagan, instead of reconsidering his nomination, reacted defensively, and his administration badgered several wavering Republicans into supporting O’Connor. Denton was the final holdout. Told he would look like a fool if he cast the only ‘no’ vote, Denton gave in against his better judgment. And thus with a whimper ended the first and only occasion when the pro-life movement has ever seriously opposed a Republican nomination.

The pro-choice lobby gave Scalia a free pass in 1986, but one year later, they showed how the politics of judicial selection are supposed to work during the confirmation hearings of Robert Bork. There was Ted Kennedy, less than an hour after Bork’s selection, grousing that his “America is a land in which women would be forced into back-alley abortions.” Then, there were many months of Ivy League academics testifying that Bork’s criticism of Griswold v. Connecticut demonstrated extremist tendencies.

After Bork went down in flames, Anthony Kennedy flew through with no discernible opposition from either party. Although the Bork nomination is often considered a low point in American political history, I happen to think the pro-choice interests groups had the right idea. With Supreme Court spots coming open so rarely, the ends justify the means, especially if it’s the difference between a Bork and a Kennedy. The pro-life movement should have fought Stevens, O’Connor, and Kennedy as strongly as the liberals fought Bork. Instead, Senators like Jesse Helms, Orrin Hatch, and Strom Thurmond voted for all of them.

The most pitiful performance of all came in 1990, when the first George Bush nominated David Souter. As a hospital trustee, he had voted to allow the performance of abortions back in 1973. Pro-life groups should have taken notice, but instead, it was pro-choice groups that lined up against his nomination. A poster commonly seen around DC that summer read “Stop Souter or women will die!” Never before or since have liberals so strongly opposed such a liberal nominee.

The abortion lobby flexed its muscle again in 1991, falling just short in its “high-tech lynching” of Clarence Thomas. But even with this rare pro-life victory, it was too little too late, and eight months later, Blackmun, Stevens, O’Connor, Kennedy, and Souter were the five votes to reaffirm Roe in Planned Parenthood v. Casey. At last, the fruit of pro-choice tenacity and pro-life docility in judicial nominations were on full display for all to see. But somehow, the message still failed to sink in.

When the anti-Roe Byron White was replaced by the pro-Roe Ruth Bader Ginsburg in 1993, only three Republicans voted against her. One year later, Stephen Breyer attracted nine ‘no’ votes, but most were based on his shady financial dealings rather than his support for a Constitutional right to abortion. For the vast majority of “pro-life” Senators in Congress, abortion was still apparently a negotiable issue when it came to confirming Supreme Court Justices.

As this fantastic and well-researched article on Live Action’s blog meticulously demonstrates, even John Roberts and Samuel Alito aren’t definite anti-Roe votes. Thus, even to this day, pro-life Senators remain content to let a nominee slide through, with no quality control whatsoever, as long as they were picked by a Republican president. In less than two years, Roe is turning 40 years old. Any strategy that fails for nearly 40 years, in my estimation, ought to be ditched. It is time, after decades of timidity during Supreme Court nomination, for pro-lifers to go on the offensive, just as liberals did against Bork and Thomas. After all, with Roe still on the books, it’s not like we have anything to lose.

1966-2011 – Mississippi Remains Unchanged

As soon as I saw the poll showing initiative 26 as a statistical dead heat, I realized that it would most likely lose. Instinctively, I knew that in the privacy of the voting booth, thousands of “pro-life” voters would reveal their true, ugly nature. It hardly mattered that the retiring governor, and both candidates to succeed him endorsed the measure. It hardly mattered that, this Sunday, Baptist churches all over the state urged their members to vote ‘yes.’ Taking refuge in the sweet security of anonymity, a decisive number of conservatives took the disgraceful, but easy, path of cowardice.

Let’s make one thing very clear from the get-go: initiative 26 was never going to have any legal effect if passed. Roe v. Wade held that “a state may not adopt one theory of when life begins.” The courts would have struck it down in the blink of an eye. Initiative 26, from beginning to end, was only about making a statement; the statement being that Mississippi could not tolerate the legal execution of innocent human lives. By voting it down, the populace made clear that they were in fact perfect willing to tolerate abortion on demand.

If pro-lifers can’t get a majority in a state like Mississippi to agree that abortion is wrong, we’re in huge trouble. If Roe v. Wade were overruled tomorrow, how many states would actually make abortion illegal? Would there even be one? Utah? North Dakota? Louisiana? Idaho? I can’t even say with certainty that any of those would do it. Last night, the Republican candidate for Governor ran 17 points ahead of initiative 26. At least one third, and possibly as much as one half of Republican voters voted ‘no’ on initiative 26. And this in one of the most churchgoing states in America. Depressing? That’s an understatement.

In my second substantive post on this blog, I laid out the truth that the pro-life movement has too long ignored: a substantial majority of Americans approve of legal abortion on demand. Sure 51% may call themselves “pro-life” in some meaningless poll, but once presented with a real choice in the voting booth between life and death, Americans can’t help but choose death. As we learned yesterday, conservative Baptists in the deep south are no exception to this general principle.

As a painfully ironic coda, I should point out that Mississippi remained true to its roots in voting down initiative 26. For in 1966, Mississippi became the very first state in America to make abortion legal for any reason other than a serious threat to the mother’s life or health. A year later, Colorado, North Carolina, and California followed suit, and within a decade, Roe v. Wade was the law of the land. Legal blindness toward human life began in Mississippi 45 years ago. And yesterday’s election made it obvious that the end of this blindness will not begin there.

The 1966 liberalization remains shrouded in mystery. Not a single national newspaper reported it, and most late sixties-era law review articles on abortion legalization don’t even seem to be aware of its existence. This is surprising because a great swarm of media coverage attended the passage of the Colorado law one year later. Even today, many sources mistakenly continue to claim that Colorado’s law was the first liberalization. To this day, I have been unable to discover any source whatsoever which sheds some light on why Mississippi changed its law. In David J. Garrow’s encyclopedic work Liberty and Sexuality, which is probably the most thoroughly researched account ever written of pre-Roe activity in state legislatures, Mississippi’s law is completely ignored.

Literally the only thing we know is the text of the law, which states that abortion is legal “where pregnancy was caused by rape.” The laws passed by Colorado and subsequent states also allowed exceptions for incest, and fetal deformity; what’s more, they were clearly inspired by a 1959 proposal by the American Law Institute (ALI), which recommended legalizing abortion for precisely those exceptions. Why would Mississippi only allow a rape exception?

While I have absolutely no direct proof, I do have an extremely plausible theory. Mississippi legislators were not inspired by the ALI, but simply by racism. Remember, in 1966 the Civil Rights movement was at a crescendo, and the political powers in the state were absolutely horrified by the prospect of integration. In passing the law, it was not just any sort of rape the legislature had in mind, it was interracial rape. A Mississippi legislator, aghast that an innocent white girl might be forced to give birth to a black rapist’s baby, introduces the bill, and it rapidly flies through the legislature. And thus began the tragic opera of legal abortion in America.

Last night, Mississippi might have come full circle, and been the first state to draw a line in the sand, however judicially unenforceable. Instead, voters revealed that a period of 45 years had not softened their hearts in any way. Pro-lifers must be sober-minded and take note – our work is plainly cut out for us.

Byron White: the Patron Saint of Neutrality.

Justice Byron White

If you’ve been around the pro-life movement for a fair amount of time, you’ve probably heard Roe v. Wade described as a “an exercise of raw judicial power.” You might even know that this quote comes from Byron White’s incisive dissent in Roe. But very little is known about the man himself, and that’s a shame, because Justice White was one of the most amazing men ever to sit on the Supreme Court.

After a stellar career as a superstar running back with the Pittsburgh Steelers, he went into law (how many NFL players can you say that about?), and eventually was offered a spot on the Supreme Court by President Kennedy in 1962. He retired in 1993 after 31 years of service, and died in 2002.

Today, White is primarily remembered for two opinions: his majority opinion in Bowers v. Hardwick, and his dissenting opinion in Roe v. Wade. Because of this, leftists often pigeonhole him as some sort of doctrinaire conservative – a Democratic president’s mistake just as Justice Souter was a Republican president’s mistake. In reality, Byron White was always a man in the middle, and could not be easily classified as either a conservative or liberal.

His time on the bench was dedicated to a near-total pursuit of neutrality and objectivity. Unlike Liberals like Warren or Brennan, or conservatives like Rehnquist or Scalia, White never had an overarching theory of how to decide cases like Originalism, or the “Living Constitution.” Unlike other Justices, who are addicted to sonorous phrases, and pompous displays of Constitutional moralizing, White never saw the Court as some grand tribune of American values. His philosophy was simple, direct, and unmistakable: the Court was there to decide cases and controversies, and to decide them correctly, in accordance with law and precedent.

In line with this, very few of his opinions are particularly memorable. He made a point of writing fast, rather than laboriously crafting opinions with an eye toward being anthologized in a textbook. Modest to a fault, but self-confident enough to completely ignores his loud critics in Ivy League academia, he was uniquely able to avoid the flattery that that often swayed other moderates like Powell, O’Connor, and Kennedy.

Like most Justices on the Court in 1973, White is reported to have favored the legalization of abortion. What separated him from his brethren was his unwillingness to read this policy preference into the Constitution. As I mentioned earlier, White was no Originalist, and was willing to let rights be added to the Constitution in limited circumstances. For example, in Griswold v. Connecticut, he agreed that married couples have a right to use contraception, even though such a right is nowhere to be found in the Bill of Rights. By 1965 however, Connecticut was the only state left that criminalized marital contraceptive use. In Justice White’s eyes, the American people had overwhelmingly come to a consensus that marital contraceptive use was a fundamental choice, and even if they never took the formal step of enshrining this consensus into the text of the Constitution, the consensus was still there.

Roe was a different story entirely. In more than half of the states, abortion was still illegal for any reason except to save the mother’s life, and there was anything but a national consensus over the question. In the absence of a consensus, the Court had absolutely no business declaring anything a new right. White’s approach might be termed, to coin a term, the “Lived Constitution” method. When Americans collectively, but informally, recognized a right, White had no problem ratifying it with a judicial decision. But the Court could never act as a vanguard, and go about declaring rights before the population was ready for them. As he said in his Roe dissent,

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life

Usually, when White was on the losing end of a decision, he accepted the outcome, and moved on. But Byron White never reconciled himself to Roe. Indeed, he saw it as the most fundamentally illegitimate decision of his entire 31 year career on the Court. And really, who can argue with him? The Court makes all kinds of controversial decisions which polarize the public, but usually the initial wave of outrage is forgotten after a few years (anyone remember Kelo v. New London?). Roe is completely unique in how long well-organized opposition to the decision has lasted.

It goes without saying that the Supreme Court is poorer without Byron White’s presence. I would trade him in a second for any of the partisan hacks appointed by Clinton and Obama. And, although I might have to think about it for two seconds instead of one, I’d certainly trade him for Anthony Kennedy, who in so many ways is White’s complete opposite in terms of judicial temperament. It certainly isn’t hard to figure out which one would be more likely to vote based on emotions rather than the law. I don’t mean to suggest that he was perfect; White certainly had his flaws, and did join the liberal wing of the Court in a number of 5-4 heart-breakers. But White deserves far more recognition than he has gotten for his jurisprudence of neutrality, and his abhorrence at imposing value preferences upon the nation.