Thursday, March 23, 2017

The Supreme Court and abortion: how has the plan to overturn Roe been working so far?

For reasons that I prefer not to ponder (cough-age-cough), I am not very well informed about popular culture.  For example, I do not know which political commentators are popular and which are not. Prior to Monday, I had never heard of Tomi Lahren. In fact, I had never heard of the "digital network" TheBlaze, where Ms. Lahren apparently hosts a nightly show in which she acts as a "liberal agitator."

Since I was unaware of Ms. Lahren's existence, I have no opinion on whether she agitates liberals. However, as several media outlets are reporting, Ms. Lahren has agitated a lot of conservatives by saying she is pro-choice because of her belief in limited government.  The A.V. Club has an entertaining take on the hullabaloo.  Slate has an article pointing out that although conservatives are unhappy with Ms. Lahren, the alt-right supports her. Reasonable minds can differ, I suppose, on whether having the alt-right's support is a good thing. I guess it did not hurt President Trump.

These news stories about a minor celebrity's abortion views interest me because: (a) I am always surprised when I learn of the existence of famous people of whom I was previously unaware; and (b) the Senate is currently holding confirmation hearings to determine whether judge Neil Gorsuch should be our country's next justice on the Supreme Court.  (side note, this tweet by Jamelle Bouie is kind of funny).

On the campaign trail, President Trump promised that he would appoint people to the Supreme Court who would overturn Roe v. Wade, the Supreme Court decision which held that women had a constitutional right to an abortion. Because of that promise, and because there is a pro-life plank in the Republican Party platform, some people hope while other people worry that the Supreme Court will overturn Roe. There are reasons to wonder if this hope -or worry depending on which side one of the argument one is on- is misplaced.

As I wrote last December, I cannot think of a time when the Supreme Court has taken away a right that an earlier Supreme Court decision said existed. For that reason alone, it seems unlikely that the Supreme Court will remove the constitutional protection of abortion.

There is a practical reason that the Supreme Court doe not take typically take away rights. A Supreme Court appointment is certainly connected to the political process.  After all, elected presidents nominate someone to the Supreme Court and elected senators decide whether to confirm the nominee. But I think that most people -including judges and politicians - would agree that constitutional rights should not vary based on election results.  Thus, if one wants to take money out of politics, one should draft a constitutional amendment that says money is not the same thing as speech. If one wants to get rid of the individual right to bear arms, one should work to repeal the Second Amendment rather than hoping that the Supreme Court will overturn its decision in District of Columbia v. Heller.  If you do not like Roe v. Wade, get a Human Life Amendment passed rather than trying to find five votes to overturn Roe.

That leads to the second reason to conclude that Roe is unlikely to be overturned.  Namely, there is some evidence to suggest that Republican Party leaders want to keep Roe as an election issue.  As this Gallup poll notes, the percentage of people who are single-issue voters, i.e., will only vote for a candidate who agrees with them on abortion, is over 20%.  That is the highest result in the history of Gallup's polling on that issue.  Remove those single issue voters from election, results, volunteer efforts, and—perhaps most importantly—from donor lists, and it becomes that much harder to win elections. (This is presumably also true for Democrats and people who are single-issue pro-choice voters. But that is somewhat irrelevant given that Democrats are not trying to get the Supreme Court to overturn Roe).

What supports this hypothesis?  Consider that since 1980, the Republican Party Platform has criticized Roe and supported overturning the decision. Republicans have been President 20 of the years since 1980, while Democrats held the Presidency for 16 years. Given that slight advantage in controlling the White House, one might think that Republicans simply have not had a chance to put 5 conservative justices on the Supreme Court at one time. But one would be wrong.

In Roe, the Supreme Court voted 7-2 in holding that there was a constitutional right to an abortion. The two dissenting justices were William Rehnquist and Byron White. The seven justices in the majority were Warren Burger, William O. Douglas, William Brennan, Potter Stewart, Thurgood Marshall, Harry Blackmun, and Lewis Powell. Let's check on which political party picked the replacements to those nine justices.

William O. Douglas retired in 1975.  President Gerald Ford, a Republican, nominated John Paul Stevens to take the seat held by Justice Douglas. But, as I mentioned, this took place five years prior to the GOP adopting the platform plank to overturn Roe. So President Ford probably was not thinking about overturning Roe when he nominated Justice Stevens. Justice Stevens served on the Supreme Court until 2010. President Obama nominated Elena Kagan to Justice Stevens's seat. It is fair to say that this seat has never been held by anyone interested in overturning Roe.

Potter Stewart retired in 1981, after the GOP adopted its official stance in support of overturning Roe. President Ronald Reagan, a Republican, nominated Sandra Day O'Connor to replace Justice Stewart. Justice O'Connor was a critic of Roe v. Wade.  Justice O'Connor's replacement-Samuel Alito-was nominated by President George W. Bush. So Justice Stewart's seat has been held by a GOP-nominated justice for the past 35 years.  

Warren Burger retired in 1986. President Reagan appointed Justice Rehnquist to take Justice Burger's place as Chief Justice.  President then nominated Antonin Scalia to fill the associate justice seat held by Justice Rehnquist.  As Reader(s)™ may have heard, the Senate refused to hold hearings on Justice Scalia's replacement until after the winner of 2016 presidential election was inaugurated.  In any event, a GOP-appointed justice has held this seat since 1986 and will do so for the foreseeable future.

Justice Powell retired in 1987.  President Reagan nominated Anthony Kennedy as Justice Stwart's replacement. Justice Kennedy is still on the Supreme Court.  That makes 29 years of this seat being held by a Republican-nominated justice.  

Justice Brennan retired from the Supreme Court in 1990.  President George H.W. Bush, a Republican, nominated Justice Brennan's replacement, David Souter.  Justice Souter retired in 2009 and President Obama nominated Sonia Sotomayor to fill the vacancy.  That makes 19 years that Republican-nominated justice filled Justice Brennan's former seat.

Justice Marshall retired in 1991.  President George H.W. Bush nominated Clarence Thomas to Justice Marshall's seat. Since Justice Thomas is still serving, that means that a Republican-nominated justice as held this seat for 25 years.

By 1991, six of the justices who were in the majority in Roe had retired. All six of those justices were replaced by individuals nominated by Republican presidents. Moreover, five of the six justices were replaced after the Republican Party made overturning Roe a key part of the Republican platform. Given that the two Roe dissenters were still on the Court, one might expect that there would be a 7-2 decision somewhere along the line to overturn Roe. Obviously, that has not happened. I'll come back to that in a moment.

Justice White, one of the Roe dissenters, retired in 1993.  President Bill Clinton, the first Democrat to make a Supreme Court appointment since Roe, picked Ruth Bader Ginsburg to fill Justice White's seat. Justice Ginsberg is a supporter of abortion rights.

Justice Blackmun, the author of the majority decision in Roe, retired in 1994. President Clinton nominated Stephen Breyer to fill Justice Blackmun's seat. Justice Breyer is still on the Court. Justice Breyer, like Justice Blackmun, supports abortion rights. So this seat's perspective on abortion rights is unchanged since Roe.

William Rehnquist, last of the Roe justices to retire, retired in 2005.  Chief Justice John Roberts was nominated by President George W. Bush to become chief justice. So the Chief Justice's vote has been held by individuals nominated by an anti-Roe president for the last 30 years.

Put together, Republican presidents named the replacement to seven of the justices serving when Roe was decided.  Subtracting out President Ford's pick-remember overturning Roe was not part of the Republican Party Platform in 1975-Republican presidents replaced one of the two dissenters in Roe and 5 members of the Roe majority.  Democratic presidents have replaced one of the dissenters, and two members of the Roe majority.  If it were simply a matter of lining up 5 votes to overturn Roe, Republican-appointed justices could have done that at any time in since 1991.  Clearly it is not that simple.  But why not?

Well, some people would say that President George H.W. Bush made a mistake when he nominated David Souter. Supposedly, presidents do not ask potential Supreme Court nominees how they would rule on important issues. I would not argue with anyone who thinks that is a weird way to interview someone for the job. It is an especially weird way to interview potential Supreme court picks when your party's platform is about overturning a Supreme Court decision. Anyway, under this theory, because no one asked Justice Souter his views on abortion, the pro-life cause lost a big chance to overturn Roe.

It is also possible that the White House knew Justice Souter's view on abortion and decided a pro-choice justice was acceptable for the cynical reason of not losing the single-issue voters. However, our discussion is over if we think that the appointment of Justice Souter was the product of duplicity. Let's just take it on faith that there isn't a discussion of likely Supreme Court cases.  Moreover, even if nominating Justice Souter was a mistake, that would only change the vote from 6-3 to overturn Roe to overturning Roe by a vote of 5-4 if each justice voted according to the party platform of the President who nominated that justice.  So why hasn't Roe been overturned?

Well, I think that leads us back to the practical reason for not overturning Roe; that the justices feel overturning Roe is not something the Supreme Court should do as a matter of principle. Put another way, having the Supreme Court to overturn itself on controversial issues simply because of election results is no way to run a country founded on the rule of law.

What do you think Mr. Torvik?  Is the right to an abortion in jeopardy under our new President? Is there a reason that pro-life movement supporters should think that President Trump will do a better job of picking pro-life justices than his three Republican predecessors did when they were picking justices after Roe?  

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