First Among Equals (19 page)

But would the Court overrule
Roe?
Just as Richard Nixon in 1968 had vowed to change the direction of the Court, so too did Ronald Reagan in 1980. Both used, albeit twelve years apart, similar language in describing the kind of judges they would appoint: “strict constructionists,” judges who would interpret the law and not make it up. And both implied that certain decisions ought to be overruled. Nixon attacked the Warren Court's criminal law cases,
Miranda v. Arizona
in particular. Reagan was concerned about the Burger Court's most celebrated case,
Roe v. Wade.
Indeed, to Reaganites,
Roe
symbolized the excesses of a federal judiciary that both Reagan and the elder President Bush sought to change through their judicial appointments. And the future of
Roe
itself turned out to be the abiding social-issue question of not just the Reagan presidency but also of that of President Bush (the first). Both administrations regarded
Roe,
as a matter of constitutional law, as indefensible. As counselor to Attorney General Smith, I favored the Justice Department taking a principled, firm position:
Roe v. Wade
was wrongly decided; it had improperly thrust the federal judiciary into fashioning social policy entrusted to the states; and it should not be permitted to stand. Thus matters stood at the dawn of the Reagan administration.

In 1981, Justice Potter Stewart, who had joined the majority in
Roe,
retired. The idea of appointing Robert Bork was immediately born. Bork, a Yale Law professor who had served as solicitor general under President Nixon, was the leading candidate to replace Stewart. In the Justice Department, where I was working at the time, Bob Bork was far and away our first choice. But the president wouldn't name him. Reagan had promised during the campaign to appoint the first woman to the Court, and he wanted to fulfill that promise now. So he asked us to find qualified women who shared his judicial philosophy. Sandra Day O'Connor topped our list. The president nominated her, and she was easily confirmed. The biggest issue in the confirmation was from the political right—whether Justice O'Connor was “sound” as to the legitimacy of
Roe v. Wade.
The question was skirted. O'Connor showed an impressive familiarity with the issues, but refused, rightly, to take a position on a matter that was certain to come before her.

By my reckoning, Bork could have been counted upon to vote to overrule
Roe.
But even with the less-easy-to-peg O'Connor sitting instead, it was apparent that there was no longer a majority willing to approach new claims of “liberty” as the freewheeling
Roe
majority had in 1973.

The proof came in 1986 when the Court, in
Bowers v. Hardwick,
was asked whether a Georgia law outlawing consensual homosexual sodomy was constitutional. In order to strike down the law, of course, the Court would have to declare that category of sexual activity to be a new constitutional liberty. The Court refused in an opinion written by Justice White, who had dissented in
Roe.
Using the same legal reasoning as in his
Roe
dissent, White, joined by Justices Powell and O'Connor, canvassed the laws of all fifty states in order to discern whether consensual homosexual sodomy had been accorded legal protection. He found it had not. In fact, most states had outlawed the behavior. The Court thus had no basis for declaring that the Constitution protected consensual homosexual relationships. In
Griswold,
of course, just the opposite had been true. For in the rich history, including the common law, showing that the marital relationship had been protected in law, the Court found solid grounds for striking down the state law barring contraceptives for married couples.

In
Bowers,
the Court was unsparing in its criticism of the methodology employed by the majority in
Roe.
The Court, Justice White warned, was at its greatest peril when it sought to provide constitutional shelter for liberty claims lacking demonstrable approval in law or the traditions of the people.

When
Bowers
was decided, President Reagan's decision to pass over Judge Bork seemed to have made no difference insofar as
Roe’
s future was concerned.
Bowers
showed that the Court had already shifted, thanks to Powell and O'Connor, to a more traditional, anti-
Roe
methodology. The more methodical, lawyerly judges were in the ascendancy. Of particular concern to pro-choice groups was the Court's dismissive attitude to the position Justice Blackmun advanced in dissent. At long last, Justice Blackmun put together an intellectually coherent defense of constitutional libertarianism broad enough to encompass abortion and homosexual rights. He emphasized, in particular, the Court's precedents supporting individual freedom concerning intimate, personal decisions. But the Court brushed aside Blackmun's new, improved argument.

So it was that
Roe
seemed doomed. It was only a matter of time. Or of perhaps one new appointment to the Court. And when Justice Powell, who had joined the majority in
Roe
but now had converted to the anti-
Roe
methodology, stepped down in 1987, it appeared that the Court soon would be overruling one of its most disputed decisions ever.

President Reagan put gender and ethnic politics aside and in the waning years of his presidency, picked Robert Bork to fill Powell's seat. At long last, the pivotal choice of Robert Bork had been made. Winning confirmation, however, proved illusive. As a result of the 1986 elections, Democrats controlled the Senate, and Democratic Senator Joe Biden was now chairman of the Senate Judiciary Committee. The Democrats were thus better positioned to defeat Bork than they would have been in 1981 or, for that matter, in 1986 (when Chief Justice Burger stepped down), when Republicans controlled the Senate. Nor was it in Judge Bork's favor that the justice he would replace was Lewis Powell, regarded, rightly, as a justice squarely in the ideological center. Judge Bork's rigorous, well-developed philosophy of judging put him unambiguously to the right of the centrist Powell. Clearly an adherent of the textualist school and a restrained interpretation of judicial power, Judge Bork was an outspoken critic of
Griswold;
in his view, the Court should enforce only those rights found in the Constitution and its history. In short, there was little doubt that if Judge Bork were confirmed, he would shift the balance of the Court to the right. Pro-choice forces in particular viewed his prospect with alarm. Not by happenstance did Senator Edward Kennedy, a Democrat from Massachusetts, on the day President Reagan nominated Judge Bork stand in the Senate to denounce the selection as though it were something out of the Dark Ages. Senator Kennedy drew a wild caricature of Bob Bork as someone who would return America to an era when women ruined or lost their lives as a result of back-alley abortions. Kennedy knew full well that reversing
Roe v. Wade
would simply return the issue, like countless others, to the states. This was demagoguery.

The demonization worked, although in fairness Judge Bork's performance in the closely watched confirmation hearings did not win over the hearts and minds of the American people. The Senate rejected by the vote of 58–42 one of the most qualified individuals ever selected for the High Court. But the Senate did more than defeat Robert Bork. It forced President Reagan to name someone more to the Democratic-controlled Senate's liking, which is to say someone less to the right than Bork, someone less likely to shift the Court's balance. Anthony Kennedy was the eventual choice. His record on the Ninth Circuit was one of caution and circumspection. On the High Court, his caution was manifested when the Court, in
Planned Parenthood v. Casey
(1992), confronted the question of whether
Roe v. Wade
should be overruled.

The question in
Casey
arose in the context of a constitutional challenge to Pennsylvania's abortion regulations, including a waiting period before the abortion procedure could be performed. Planned Parenthood wanted the regulations declared unconstitutional, a violation of the abortion liberty declared in
Roe.
The Commonwealth of Pennsylvania, under Democratic Governor Bob Casey, vigorously defended them. Various friends of the Court, including the United States, which I represented as the solicitor general, argued not only in defense of the regulations but also for the overruling of
Roe
itself. The time was ripe, in my judgment, for the Court to reconsider
Roe.
My argument was this:
Roe v. Wade
was not grounded in the text or history of the Constitution. The traditions of law and medical practice did not sanction nontherapeutic abortions. The Court had ignored the limited role of courts by divining a sweeping right of “privacy”—in the sense of individual autonomy—that invalidated state efforts (if states so chose) to protect the sanctity of life.

I had miscalculated. To be sure, the Court upheld all but one of Pennsylvania's challenged regulations. But the Rehnquist Court pointedly declined to overrule
Roe.
Justice Kennedy, joined by Justice O'Connor and a third justice named by a Republican president, David Souter, wrote a plurality opinion expressing reservations about the reasoning employed by the Court in
Roe.
The plurality opinion said that
Roe’
s reasoning was weak. It intimated that its authors, had they been on the Court in 1973, would not have joined the majority, but the justices would not now vote to overrule
Roe.
The reason was stability, they explained. The principle of
stare decisis
loomed large in their analysis. Law needs to be predictable. An abiding institutional respect for prior decisions creates, in effect, a presumption of correctness.

Much of what the plurality said was true—if the law at issue is a law passed by Congress. Once the Supreme Court interprets a federal statute, that's the end of the matter. The Court, for reasons of ensuring stability in the law, won't return to that particular issue. This is the principle of
stare decisis
in its most powerful form. In contrast, Congress may overturn a High Court interpretation of one of its laws simply by passing a new law. But Congress has no such ability in the case of a constitutional decision. Thus, in the case of abortion, Congress is powerless to override
Roe’
s judgment that the Constitution includes the abortion liberty. A law passed by Congress cannot undo
Roe.
Only a constitutional amendment, which requires action by the states, could do that. Or, to put it more precisely, only a constitutional amendment or a ruling by the Court itself could do that.

In my judgment, the Court ought to be more willing to reassess its prior constitutional decisions, for two reasons. First, there is the sheer difficulty of correcting a wrong decision by constitutional amendment. A supermajority of the states—some three-quarters in all—is necessary to ratify an amendment. Second, the Court itself is unelected yet enjoys broad power to issue rules that affect the culture. Given this power, the Court is in the position—as no one else is—to correct its own erroneous readings of the Constitution.
Plessy v. Ferguson,
the infamous 1896 decision upholding the concept of separate but equal treatment of individuals along racial lines, should have been overruled long before the Court's action a half century later in
Brown v. Board of Education.

In previous eras, the Court has been more than willing—eager, even—to overrule its own constitutional holdings. The New Deal Court (after the failed Court-packing plan) in particular did not let arguments about the sanctity of precedent or the importance of stability in the law deter it from reversing recent decisions. The Court came to the view that previous Courts had been wrong, substituting as they had their own judgments for the views of duly elected legislatures and Congress. There were no visible signs of anguished hand-wringing or soul-searching by the New Deal Court as it chopped away at what it deemed wrong constitutional decisions.

But the Supreme Court in 1992, in
Planned Parenthood v. Casey,
did not see its role that way. The three justices (O'Connor, Kennedy, and Souter) set forth an intricate theory of the value of precedent in constitutional law. Their theory was novel. It centered on public expectations, not on the internal strength of the precedent itself in law and logic. This was an overtly political and cultural approach toward constitutional interpretation. Constitutional principles, the justices explained, had become embodied in everyday social arrangements.
Roe v. Wade
had been on the books for almost a generation, and millions of individuals had come to rely on it. Given this reality, it would require a compelling reason to overrule the case. But, they concluded, no such reason had been advanced. Anticipating the objection that their approach would carve wrong constitutional decisions into stone, the justices articulated a new rationale for
Roe
by drawing on cases decided before
Roe.
This body of case law provided a
plausible
basis for
Roe,
said the justices, even though they might not have agreed with it had they been sitting in the
Roe
litigation in the first instance.

Still, the three-justice plurality could not dispel the lingering sense that
Roe
was wrong, and that they felt it was wrongly decided. No other Court, nor indeed any other justice, had ever suggested that a prior decision interpreting the Constitution might be wrong but that broader, prudential interests in continuity and settled expectations counseled in favor of sticking with precedent.

History had taken a decisive turn. Judge Bork, the consensus Republican choice for the Court throughout the 1980s, would never have embraced such an unorthodox approach toward interpreting the Constitution. This was creative, prudential reasoning, not constitutional analysis. It was judicial statecraft. The O'Connor-Kennedy-Souter troika was overtly appealing to public perceptions and (possibly) public opinion. The center of the Court was unwilling to subject the Court to the sustained attack pro-
Roe
forces would surely initiate. The Court would be demonized; anti-
Roe
justices would surely be savaged in the nation's editorial pages. Instead, the three were willing to withstand the vigorous criticisms of
Roe’
s opponents, including partisans of the presidents (Reagan and Bush) who had appointed them.