Roe v Wade - The Inside Story
Here's a Final Jeopardy Question: "Who were the only two Supreme Court Justices who were kindergarten classmates?" The Final Jeopardy Answer: "Warren Burger and Harry Blackmun". Both Burger and Blackmun were appointed by President Nixon who, in 1972, campaigned against a woman's right to an abortion. In Supreme Court history, they were known as the Minnesota Twins, a reference both to the baseball team and the Twin Cities of Minneapolis and St. Paul. Yet, on January 22, 1973, one day after Nixon was inaugurated for his second, and ultimately incomplete, term, the Supreme Court, with Warren Burger as Chief Justice and the majority opinion authored byJustice Harry Blackmun, handed down the historic Roe v. Wade decision, establishing a woman's right to an abortion as a constitutional right. How did this happen? The story, many of the details of which were researched by Bob Woodward and Scott Armstrong in their book The Brethren: Inside the Supreme Court, shows that the 9 justices, far from simply sitting around a table reading law books all day and impartially judging each case based on the Constitution, are, like any 9 colleagues in an office, human beings with varying degrees of ego, intelligence, and jealousy. The story also brings to light some of the inner workings of the Court - workings that were never thought of by the Constitution's framers but which nevertheless are vital to how the Court arrives at its decisions.
The Supreme Court is a different type of workplace than your typical office. None of the justices, in theory, get to pick each other. Instead, according to how the Constitution set the process up, the President nominates each Justice, and he (or she) is confirmed (or not) with the "advice and consent" of the Senate. The justices who decided Roe v. Wade were nominated by 5 different Presidents - Franklin D. Roosevelt (William O. Douglas), Eisenhower (William Brennan and Potter Stewart), Kennedy (Byron R. White), Johnson (Thurgood Marshall), and Nixon (Burger, Blackmun, Lewis Powell, and William Rehnquist). Not only were the Presidents different in personality and background, so were there Supreme Court appointees. The difference, of course, is the the Supreme Court justices are forced to work together, decide on cases which affect all of our lives (sometimes to the point of life and death - a death penalty case in 1972, decided by 5-4, determined whether or not 700 people on death row would live or die), and, on occasion, even show that they act as one harmonious whole.
Sometimes, these petty prejudices and egos become public knowledge. There is an annual tradition that at the beginning of each term, the justices sit for a photograph. You've probably seen a few of them - the justices are solemn faced in their black robes, sitting there like high school seniors in a graduation picture. In 1924, Justice James McReynolds, a racist and anti-semite, refused to sit next to Louis Brandeis, the first Jewish Supreme Court Justice. By custom, which dictates many of these Supreme Court practices (including things like who gets the coffee), he belonged there on the basis of seniority. The result: the 1924 Supreme Court Official Picture shoot was cancelled. McReynolds also refused to speak to Brandeis for three years following Brandeis's appointment and when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement. Yet they still managed to decide critical cases for decades.
The Court that decided Roe v. Wade did not have this type of problem. However, there was plenty of in-fighting and ego bruising battles. Nixon appointed Burger in 1969 to succeed Earl Warren, who was perceived as a liberal interventionist, especially in areas like school desegregation and civil rights, as Chief Justice. Nixon wanted the Court to follow a more conservative, go-slow attitude, especially in civil rights. This was the era of school busing and integration, real political hot buttons. Burger was a conservative Minnesota judge. The Chief Justice, although he has the same one vote as any of the other justices, has a chance to put his (or her, even though there haven't been any woman Chief Justices yet) stamp on the Court. We tend to think of "the Warren Court", "the Burger Court", "the Rehnquist Court", or "the Roberts Court", even though the composition of the court changes during the Chief's term due to death, retirement, and resignation.
The Chief's influence, however, is greater than any of the other justices. One example, which is important to our story, is that the Chief gets to select the Justice who writes the majority opinion, if the Chief is in the majority. However, if the Chief is not in the majority, the senior associate justice (in this case, Justice Douglas), gets to select the Justice who writes the majority opinion. The selector can, of course, select himself. Since the author of the majority opinion gets to shape the law and precedents, this is important.
Appointed in 1969, Burger had only been Chief Justice for a short time. His kindergarten playmate, Harry Blackmun, was appointed in 1970, a relatively short time compared to, say Justice Douglas who had been on the bench since 1939. Burger and Blackmun continued their friendship, as they also went to the same elementary school, in Dayton's Bluff, a working class suburb of St. Paul, Minnesota. Even though they went to different high schools and their law careers sent them their separate ways, they remained in close contact. Blackmun was best man at Burger's wedding in 1933, for example. So at the time of Roe v Wade, both Burger and Blackmun still had not placed their stamps on the Court.
How Blackmun came to sit on the Supreme Court is a story inside our story. Blackmun was hardly Nixon's first choice to replace Justice Abe Fortas, who resigned under a cloud of scandal in 1969. Fortas, while sitting on the Court, had been receiving a $20,000 a year payment as a consultant for the Wolfson Foundation. Wolfson had been convicted of securities fraud, serving a year in prison. When it became public knowledge that Fortas was on the payroll of a convicted felon's foundation, he was forced to resign.
Blackmun was Nixon's third attempt at appointing the replacement for Fortas. Nixon first nominated Clement Haynsworth, from Greenville, South Carolina, a judge on the Fourth Circuit Court. It turned out that Haynsworth had decided on cases in which he had a financial interest, and he had expressed segregationist views. The Senate, controlled by the Democrats, defeated his nomination, 55-45, with 17 Republicans also voting against him.
Nixon's next nominee was Judge Harold Carswell, from Georgia, a judge on the Fifth Circuit Court. Nixon, persisting in his southern strategy of hiring judges who wanted to go slow on integration, went a bit too far on this nomination. It turned out that Carswell had expressed white supremacist views while running for office in Georgia. He fought against integration of a public golf course in Georgia. The American Bar Association labeled Carswell "mediocre", which prompted one of his Senate supports, Roman Hruska, to proclaim, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?". The Senate killed the Carswell nomination, 51-45. Carswell eventually retired from the bench, unsuccessfully ran as the Republican Senate candidate in Georgia, and was arrested for exposing himself to a boy in a mens room.
After twice being bloodied so badly, Nixon needed a nominee who could pass through without a fight. Chief Justice Burger, according to Woodward, was also concerned that the prestige of the Court would suffer as well. Blackmun, Burger's kindergarten playmate, held steady, conservative views. Before becoming a judge, Blackmun was the chief lawyer for the Mayo Clinic, the prestigious Minneapolis medical organization. This would turn out to be important for his Roe v Wade decision. The background check, done by William Rehnquist, who was then Assistant Attorney General but later became Blackmun's colleague on the Supreme Court, didn't turn up any red flags. Blackmun, Nixon's third choice, was confirmed unanimously, without incident.
The Roe decision, from the start, was designed to be the signature decision for both Burger and Blackmun. Who was Jane Roe? The case originated in Texas in March 1970 at the behest of young attorneys Linda Coffee and Sarah Weddington. Coffee and Weddington filed suit on behalf of Norma L. McCorvey ("Jane Roe") who claimed her pregnancy was the result of rape. Wade was the Texas Attorney General, responsible for enforcing the Texas abortion law. Jane Roe is the female equivalent of John Doe, a name used to hide someone's real name. The appeal process, of course, took a lot longer than McCorvey's pregnancy, and she ended up delivering the baby and surrendering the child for adoption.
This fact brought up a legal issue, relevant to the Supreme Court reviewing the case. The process, called "granting cert", requires that the appellant (the person making the appeal) have "standing" - i.e., that he or she woould be affected by the decision. Since by the time the Court had the cert petition, McCorvey had delivered the baby, did she have standing? In granting cert, the Court reasoned that because of the length of the appeals process, nobody would ever have standing and they could therefore never rule on the underlying abortion issue. Since they viewed the issue as meriting review, they granted the cert petition.
Roe v Wade was first argued on December 13, 1971. It was reargued on October 11, 1972. The decision was handed down on January 22, 1973. We're talking over a year here. Blackmun, who was known for his delays in writing opinions, took his time on this one, with extensive drafts and revisions. His early drafts focused neither on the right of the mother to have an abortion, nor on whether the fetus is a living being, entitled to 14th Amendment protection. Instead, Blackmun, the former chief lawyer for the Mayo Clinic, focused on the freedom of the doctor to perform abortions. Blackmun had worked closely with doctors, respected them highly, and wanted to ensure that they could practice medicine to the maximum of their professional skills. He considered that the Hippocratic Oath forbade abortions, but in practice abortions had been practiced throughout recorded history, from ancient Egypt and Greece to the present. The relevant sentence in the Hippocatic Oath is:
I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion
In fact, he spent the summer of 1972 buried in the library of the Mayo Clinic researching this history. This aspect of the abortion controversy is overlooked today. States such as Pennsylvania, as I described in my episode about Planned Parenthood v Casey, can pass laws dictating what doctors may or may not say and do in abortion matters.
In later drafts, Blackmun added references to the right of privacy. He was influenced by Justice Douglas, who had written about the penumbras, i.e., implied rights to privacy, in Griswold v Connecticut, a 1965 case involving a Connecticut contraception law that I discussed earlier. Douglas wrote the majority opinion in Griswold. He also was influenced by Justice Brennan, a Catholic who was a strong advocate of privacy rights and who would vote with the majority in Roe.
Blackmun had to come up with a formula that would not allow abortions up to actual birth. His fellow Twin, the Chief, had said that he would not join Blackmun's opinion if he did that. Blackmun had to determine at what point the fetus was viable, and at that point a state interest in its life was created. Blackmun came up with a "trimester" formula, dividing the 9 months of childbirth into 3 3 month periods, which both provided some guidance and dodged the question of when life starts. In the first trimester, he held, a woman had an unqualified right to an abortion. In the second trimester, the right to an abortion was still available but states could make laws to protect the health of the mother. In the third trimester, somehow the rights of the fetus get into play and by some magic the rights of the mother and the fetus had to be balanced. Abortions could even be prohibited. Blackmun didn't pretend to make a medical determination of when the fetus is viable, so he used words like "approximately" in his decision.
The 7-2 decision, Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, and Powell in the majority; White and Rehnquist dissenting, was handed down on January 22, 1973. White and Rehnquist could not find any text in the Constitution that stipulated that a woman had a right to an abortion. The date is significant. Nixon, who had run against a woman's right to an abortion, had been inaugurated on January 20, 1973, two days before. The Chief has some leeway in announcing exactly when a decided case is publicly announced. Burger, the Chief Justice, ever the political animal, did not want to emabrrass Nixon with the Roe decision coming before Nixon's inauguration, so he delayed the decision date until two days after.
The abortion issue will be revisited in the Court's current session. The Court has agreed to rule in the Carhart case, in which a Nebraska doctor is challenging the state's ban on so-called "partial birth abortions". Perhaps the Court will rule definitively on when life begins and how much Blackmun's trimester formula applies. Perhaps not.