A different perspective on Roe v. Wade

In an attempt to keep my head while many others are losing theirs in the aftermath of the leaked draft Supreme Court opinion overturning Roe v. Wade, I am going to begin by reposting a long article I wrote about eighteen months ago on the broader issue of the power of the Supreme Court.  It anticipated the moment at which we find ourselves, and suggested that over-reliance by both parties on Supreme Court decisions to secure their goals has done very grave harm to American democracy.  At the end of the post I will make some more comments about the current situation.

 On both sides of the political aisle, Americans see the appointment of Amy Coney Barrett to the Supreme Court as a potential turning point in our history.  A 6-3 majority for the well-organized conservative bloc may overturn the Affordable Care Act, reverse the decision in Roe v. Wade, and possibly (although I think this is less likely), undo federal protection of gay marriage in Obergefell v. Hodges.  Any of these steps would give an anti-democratic Republican Party huge victories in major national issues--but I do not think the situation can be blamed on the Republicans alone.  It reflects a long-standing desire of both sides to use the court system in general and the Supreme Court in particular to accomplish goals that the ordinary political process will not allow them to reach.  Rather than try to pack the court if the Democratic Party regains control of the government next month--a precedent that could make the whole situation worse, not better--it might be better to reconsider the proper limits of the court's role.

The Supreme Court's power to test both state and federal laws against the text of our Constitution, and to strike down laws it finds in conflict with that text, was, I think, inherent in the text of the Constitution itself.  For most of the pre-Civil War era, however, the court used that power very sparingly.  The great exception was the Dred Scott decision of 1857, which, as I tried to show in a much earlier post, used an ahistorical reading of precedent to try to stop all regulation of slavery in the territories, and implied that slavery was legal all over the United States.  The modern era of legislative jurisprudence, as one might call it, began after the Civil War, when conservative justices (and they were all conservative for much of the late 19th century) began using the 14th Amendment's guarantee of due process to outlaw state attempts to regulate their economy, including wages and hours legislation.  Such rulings continued through the first four years of the New Deal, when they took down major New Deal laws, and they led to FDR's court packing plan, which failed dismally in Congress but convinced some moderate justices, led by Chief Justice Charles Evans Hughes, to help affirm the Wagner Act and the Social Security Act to forestall a greater constitutional crisis.

The broadening of the court's power entered a new phase, however, in Brown vs. Board of Education, when in 1954 the Warren Court ruled that school desegregation was an unconstitutional violation of the equal protection clause of the 14th amendment.  While the definitive work on that case, Richard Kluger's Simple Justice, showed pretty clearly that the authors of that amendment had not intended to outlaw segregated schools, the decision certainly reflected the broader purpose of that amendment, namely, to secure truly equal status for former slaves, which it defined specifically as citizens.  In addition, Kluger showed that Chief Justice Warren, recognizing the gravity of the decision and the enormous impact that it would have, worked very hard, and successfully, to insure that the decision would be unanimous, even though the court at that time included several white southerners.  The subsequent history of school desegregation in this country, however, shows how hard it is to impose such a change by judicial fiat.  After decades of litigation, including 1970s decisions that approved school busing in some cases to promote integration, 69% of black children attend schools that are predominantly nonwhite.  In parts of the Deep South, integration led almost immediately to the creation of a separate system of private "Christian" schools for white students, leaving the public schools almost completely segregated, and often underfunded as a result.

During the next 15 years, the Warren Court issued a series of decisions that extended the reach of judicial power to try to transform various aspects of American life along more liberal lines.  Several were based on the relatively new idea that all state legislation might be tested against the Bill of Rights, and at least one critical decision, on reapportionment, relied on relatively abstract ideas of justice.  In the realm of criminal justice, Mapp vs. Ohio (1961) excluded evidence that had been seized without a warrant, Gideon vs. Wainwright guaranteed every defendant a lawyer, and Miranda vs. Arizona forced law enforcement agencies to inform defendants of their right to counsel and protection against self-incrimination.  Reynolds vs. Sims and Baker v. Carr ordered states to apportion all their legislative districts according to population, rather than to favor rural districts against urban ones.  Engel vs. Vitale (1962) outlawed organized prayer in public schools.  New York Times v. Sullivan (1964) made it almost impossible for public figures to win libel suits in state court.  While I certainly agree with the goals of all these decisions, every of them aroused considerable resentment against the courts because they bypassed or overruled the political process within states, and started the Republican assault upon the independence of the judiciary.  These precedents had another impact.  By continuing to test various specific state laws and practices against broad provisions of the U.S. Constitution, they encouraged a whole new style of litigation to which several generations of activist lawyers have devoted their lives.  Rather than organize politically or run for office to try to achieve worthy goals, they look for ways to secure them in the federal courts, and thereby weaken our democratic processes.

The expansion of judicial power took a new step forward in 1973, when the court handed down Roe v. Wade, making abortion legal all around the country.  I personally regard that decision as tragic, even though I agree with its goal, because, when it happened, the political process was already attacking this issue with some success. The nation's two most populous states, New York and California, had already legalized abortion.  That was beginning to trigger a nationwide political fight over the issue, but I think it's very likely that they would have maintained that right and that other states would have followed suit.  Instead, Roe v. Wade made abortion advocates complacent, energized at least three generations of opponents to an extraordinary extent, and turned abortion into a critical national political issue that has distorted our politics ever since. Furthermore, new state laws and new federal court decisions have narrowed the right it decreed to such an extent that in much of the country it is almost impossible to secure a legal abortion, and a market for back-alley abortions has been created once again.

By the time of Roe v. Wade, Richard Nixon, who in 1968 had campaigned explicitly against many of the Warren Court's decisions, had appointed four new members of the Supreme Court.  By 1976, a conservative majority was using the Bill of Rights to invalidate major liberal legislation.  In that year, Buckley v. Valeo held that the federal government could restrict a candidate's use of his own money in his election campaign, and two years later, in First National Bank of Boston v. Bellotti, the court struck down a Massachusetts law designed to keep corporate money out of politics. These decisions laid the foundation for even more sweeping ones down the road.

In 2003, in Lawrence v. Texas, the court struck down laws against sexual relations between gay people, and twelve years later, in Obergefell v. Hodges, it established a right of gay marriage in every state.  The former decision strikes me as a straightforward application of the equal protection clause, allowing consenting adults to choose their sexual partners.  The latter, while just in my opinion, remains open to the same criticism as Roe v. Wade.  By the time it was handed down the political processes in many states had already legalized gay marriage and that would have continued.  As it is, gay marriage, as we shall see, is now under attack from another Constitutional angle.

The appointment of two members of a new generation of conservative justices, John Roberts and Samuel Alito, by George W. Bush--who was forced by his own party to abandon what would probably have been a more moderate appointment--allowed the court to move three critical areas of policy in a conservative direction, each time by a 5-4 vote.  In District of Columbia v. Heller, the court overruled more than two centuries of precedent and almost completely eliminated a state's right to regulate the possession of firearms.  Citizens United v. FEC (2010) essentially ended any restrictions on corporate spending on election campaigns, overturning a century of federal laws.  And in Shelby County v. Holder(2013), the same 5-4 majority invalidated the key preclearance provision of the Voting Rights Act--perhaps the most obvious judicial usurpation of legislative power in the history of the Republic.  The 15th Amendment explicitly gave Congress the right to enforce itself by appropriate legislation, and the Voting Rights Act had repeatedly been renewed by large Congressional majorities.  The court majority threw out the provision simply because they, in contrast to Congress, did not regard as fair or necessary any longer.  Numerous states have passed legislation attempting to reduce voting in response.

No one, really, should be surprised that both political parties have tried to bend the enormous power of the Supreme Court as it has evolved since the Second World War to their own purposes.  Democrats are especially frustrated at this moment, first, because luck as well as electoral politics have given Republicans so many more court appointments than Democrats over the last 50 years, and secondly, because the Republican Senate majority shamelessly used its power four years ago to deny President Obama an appointment that rightfully belonged to him, and having made sure then that Justice Scalia would be replaced by another conservative, they are making sure now that Justice Ginsburg will be, as well.  The situation we are in, however--in which the appointment and confirmation of federal justices may well have become the single most important thing that the President and the Senate do--reflects a long deterioration of American democracy, which has taken so many decisions out of the voters' hands.  

Eleven years ago, the political scientist James MacGregor Burns--then 92 years old--published a remarkable history of the politics of the Supreme Court, Packing the Court, which I reviewed at the time.  Burns as a college student had lived through the battle between the Court and the New Deal, and that had left him with a firm belief that the Court should not be allowed to invalidate acts of Congress. That book railed against the enormous role of the Court in our political life, and looked forward to the day when a President might defy its attempt to invalidate a law. That, it seems to me, might be a more effective step for a new President Biden to take than a new attempt to add justices to the Court, if the Roberts Court, as seems fairly likely, does confirm the argument that Roberts himself made when the ACA first came before it, and tries to invalidate the ACA on the grounds that without the tax that went along with the individual mandate, it is now unconstitutional.  [end old post].

The history of abortion rights over the last 50 years, it seems to me, resembles the history of civil rights for black Americans in the South after reconstruction.  Just as the Republican Congress declared equal rights for former slaves during Reconstruction, the Supreme Court in 1973 declared abortion in the first trimester (and potentially in the second) legal throughout the United States.  In the first case, most of the white South simply refused to accept equal rights for black citizens, and began  undoing the Reconstruction acts as soon as they could.  Fifty years later--that is, around 1920--most black people in the southern states could not vote or enter into hotels, restaurants, schools and railroad cars reserved for whites.  In the half century since Roe v. Wade red states have severely cut back access to abortion in quite a few states, and abortion rates in some blue states are at least five times higher than in some red ones.  A Supreme Court majority can find a right in the Constitution--be it abortion or an individual right to bear arms--but it cannot compel a large majority of all Americans to agree.

A poll reported today shows that while only 9 percent of Americans think that abortion should be illegal in all cases, just 19 percent think that it should be legal in all cases.  Although one would not know it from a lot of the liberal rhetoric flying around this week, Alito's opinion will not ban abortion in the United States.  Based on maps that have been published I have found that it would leave abortion rights in place in states containing slightly more than 1/3 of our population, that it would lead to a ban or near-ban in states with a little less than 1/3, and that the status of abortion would be at least temporarily unclear in the rest.  I continue to believe, as  I wrote 18 months ago, that both abortion rights and American politics generally would be in much better shape today had the court not handed down Roe v. Wade in 1973 and left the issue to the political process within states. A number of them, including the two largest, had already legalized abortion then, and I think many more would have.  The issue would not have become such a big part of the glue that holds both our political parties together.  If the court hands down the Alito opinion or a similar one, we will face a new test of our democratic process in much of the country.  Meeting that test successfully could help get the country back on track.