Ann Althouse has a rather interesting article about Justice Steven’s recent speech at the Ninth Circuit’s Judicial Conference in Honolulu, Hawaii. Its obvious from the location of this judicial conference that congressmen aren’t the only ones who take junkets. Regardless, this is the most interesting part of her recap:
I think, after all — he’s talking about Roe against Wade there and so forth — and I think there are powerful stare decisis arguments there, but it’s also true that that has been a controversial decision in recent years.Interestingly, though, it was decided just two or three years before I went on the Court, and at the time, I was not asked a single question about that issue, because it was not then controversial. That’s quite interesting. It was a 7 to 2 decision, a sort of fairly routine decision at the time.
I remember during the confirmation hearings for Justice Thomas he was asked about his discussions in law school about that case, and he said he didn’t remember having any, and that people thought, well, he’s not being forthright. Well, he was being absolutely honest, because I remember, at that time, it was not something law students generally talked about. It was considered a fairly settled, noncontroversial matter.
It became more and more controversial as the years have gone on.
When Thomas was being confirmed, he was ridiculed for telling people that he never discussed the idea in law school. Thomas graduated from Yale Law School in 1974 and Roe was decided on January 22, 1973 so it seems unlikely, but not impossible, that Thomas would go through the second half of his Law School experience without discussing the case. Althouse correctly identifies Steven’s remark a shrewd political move, but I think the notion of Roe being an unimportant decision when it was handed down is rather interesting. My first instinct was to consult my copy of “The Supreme Court” by the late Chief Justice Rehnquist. Well, I couldn’t find it so I had to turn to the next best option, “The American Supreme Court” by the late Harvard Law Professor Robert McCloskey and revised/edited by UT’s own Professor Stanford Levinson. McCloskey seems to believe that Roe served as a major step in the political accent of the pro-life movement but makes no mention of its role in the legal community.
[O]pponents of the decision, many of whom saw it basically as offering constitutional protection to the mass murder of innocent fetuses, mobilized against it. Although it is not self-evident that one’s views on abortion would necessarily correlate with more typical measures of “liberalism or “conservatism,” the antiabortion movement quickly allied itself with the Republican Party, especially the wing sharply crtical of the permissive cultural trends of the 1960′s. By 1978 several Democratic supporters of abortion rights lost their seats in the United States Senate, and tehir can be little doubt that the rise to power of Ronald Regan and the Republican capture of the Senate in 1980 were considerably helped along by the energies of the “right-to-life” movement.
Levinson’s account of the whole Roe saga is a rather interesting take on an overlooked issue although he concludes that “with the 1993 retirement of White and his replacement by Ruth Bader Ginsburg…it is unlikely that Roe will be overruled.” Ha. His book was published in 2005 but if he had only waited a few more months, he would have had to reconsider this assessment in light of the nominations of John Roberts and Samuel Alito. Regardless, I think it would be interesting to research the history behind the alignment of the pro-life movement with the Republican party.
The next place I searched was the New York Times Archive. A subscription is required to access the archives but individuals with a .edu email address get free access to the whole TimesSelect package. To find contemporary analysis of the Roe decision, I specifically searched for ‘abortion court‘ and found a number of hits that dealt with the political and policy implications. A front-page article from January 23 quotes a member of the New York state legislature as saying “I will have to study the decision to see if the language allows room for my bill but I will not change my bill to suit the decision.” Another article from January 23 provides excerpts from the Justice Blackmun’s opinion and from Justice White’s dissent.
As early as April 1973, just 3 months after the decision was released, critical analysis of the Roe decision started popping up in law reviews across the country. The first of which I found was John Hart Ely’s review in the Yale Law Journal and he cuts straight to the privacy matter:
[I]t seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. . . .
Unfortunately, . . . the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Thomas tried to join the Yale Law Journal during his time in the law school but wasn’t accepted. Presumably, if he had joined the Journal, he would have at least read about Roe. In November 1973, Professor Laurence Tribe authored a review of the Court’s 1972 term in the Harvard Law Review and devoted a considerable number of pages to analysis of Roe. At one point he offers commentary that sounds eerily like the commentary Justices would provide decades later in Casey and Carhart.
It is as though the Supreme Court were itself choosing, with the legislature’s help on matters of factual detail, either for itself or for some hypothetical person, between abortion and continued pregnancy
Justice Ginsburg wrote in Carhart:
It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).
Some things never change. Regardless of what Stevens was asked during his confirmation hearings, Roe v. Wade was almost definitely a major issue in the minds of his contemporaries.
Updated 7/30 @ 9:13- I was rereading Tribe’s article in the Harvard Law Review when I ran across this analysis:
When the court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation to severe that no abortion law in the United States remained valid
I’m not sure if I would consider that “a fairly standard, noncontroversial matter.” I found law review articles from 1973 (Supreme Court Review), 1974 (Columbia Law Review and Supreme Court Review), 1975 (California Law Review), and 1976 (Virginia Law Review) all of which discuss the Roe decision at great length.