Recent developments on the US Supreme Court and in the legislatures of several states have persuaded many observers that there is risk to the principle of constitutional (privacy right) protection for a woman’s right to choose whether or not to bring her pregnancy to term. The way various candidates react to those developments may play a large part in the Democratic Party’s primary contest for the presidential nod in 2020.
The landmark Supreme Court decision on abortion rights has stood now for 46 years: it is Roe v. Wade, a case decided by a 7 to 2 vote in January 1973. Justice Blackmun wrote the opinion for that majority.
Intriguingly, through the 1950s Harry Blackmun was the resident counsel of the Mayo Clinic, the famed academic medical center in Rochester, Minnesota. He was, then, a physician’s lawyer, and it is fitting that his 1973 opinion makes the case for leaving certain medical decisions within the privacy of the physician-patient consultation.
The Thing to Know:
Senator Elizabeth Warren (D – MA) has said that Congress should pass a statute giving the force of federal law to the principle of privacy as it applies to abortion. That would likely preempt any contrary state laws, thus codifying Roe.
Midway through his Supreme Court confirmation hearings, Brett Kavanaugh switched teams. He began as a potential player for the Supreme Court Nine in the nonpartisan law league, telling the Senate Judiciary Committee on the first day of hearings, “A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.” He ended a faithful member of a Federalist Society squad in the partisan politics league. The investigation of Christine Blasey Ford’s allegations of sexual assault, he later raved to the same committee, was “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,” as well as “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” Gone was any air or even pretense of nonpartisanship. Kavanaugh appealed exclusively, and successfully, to the Republican Party.
Neal Devins and Lawrence Baum’s new book, The Company They Keep, seeks to explain why every member of the contemporary Supreme Court plays in the partisan politics league. The period following the retirement of Justices David Souter and John Paul Stevens is the first time in history that Supreme Court voting blocs correspond perfectly with the party of the appointing president. Bipartisan majorities and bipartisan dissents occurred in every major case decided by a fractured Court during the nineteenth and much of the twentieth centuries. Republican appointee Harry Blackmun and Democratic appointee Thurgood Marshall joined hands in the Roe v. Wade majority, as did Republican appointee William Rehnquist and Democratic appointee Byron White in the dissent. Hardly any Roberts Court decisions feature both bipartisan majorities and bipartisan dissents. Decisions like Trump v. Hawaii, in which the five conservative Republican appointees outvoted the four liberal Democratic appointees to uphold President Trump’s travel ban, are the norm.
Devins and Baum point to the usual suspects when explaining the increased partisanship of the Supreme Court. The Court is more partisan and polarized because both politics and the elites who disproportionately determine its course—and staff the federal judiciary—are more partisan and polarized. Contemporary presidents pay more attention to ideology when selecting Supreme Court justices than their predecessors did. Harry Truman appointed buddies; George W. Bush appointed movement conservatives.
Courts were not so partisan through much of the twentieth century because most elites played in the same moderate liberal league. Both elite Republicans and elite Democrats during the New Deal and Great Society era favored racial equality, free speech, and secularism. The Warren Court articulated this elite consensus. In cases ranging from school segregation to school prayer to the rights of the accused, Republicans and Democrats on the Warren Court took the positions favored by the Republican and Democratic establishments even when those positions differed from those of a majority of citizens with less education, wealth, and social status. Some justices played on more activist teams than others, but divisions tended to be over which branch of government should pursue moderately liberal policies, not over the constitutionality of New Deal and Great Society liberalism. The partisan Roberts Court differs from the bipartisan Warren Court because elite Democrats and Republicans now differ on the crucial constitutional issues facing the nation.