A Season for Chameleons: Abortion and the Court

When the helicopters lifted off the roof of the American embassy in Saigon in 1975, and that project of American arms was allowed to collapse, President Gerald Ford went on television to reassure and calm the country. His message was that this was no time for recriminations. To which a friend of mine remarked, “What can he mean? This is precisely the time for recriminations.”

That line came flashing back with passion one June day in Washington in 1992, when pro-lifers had assembled in Washington for a meeting of the Life Forum, a quarterly gathering of leaders from pro-life groups. Many of them had come in a day earlier because the Supreme Court was about to release its decision in the case of Planned Parenthood v. Casey. Pro-life and pro-choice—representatives from groups on both sides had converged on the Supreme Court, anxious to hear the decision and dash out to the reporters and cameras to provide their spin. For this was the first major case on abortion since Clarence Thomas had joined five other justices appointed by Presidents Reagan and Bush. With six of them in place, there was a possibility that the Court could take the first step in a movement to start undermining, and even dismantling, Roe v. Wade.

But, to the bitter surprise and astonishment of the pro-lifers, three of those judges defected. Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter joined together, in fact, in writing the lead opinion, a “plurality opinion,” for no one opinion commanded a majority of the Court. It was not merely that these judges, appointed by pro-life administrations, had passed up the chance to move the Court in a different direction. They weighed in, rather, far more decisively to confirm Roe, to entrench it even further and to abjure ordinary citizens, spread through the land, to cease their agitation over this issue. Nearly 20 years after the Court had created the “right to abortion,” the opposition had not abated but deepened. The Republican defectors pleaded with those members of the public to recede from their intransigence, to let this law finally become “settled.”

It was the purest expression of legal “positivism”: to accept the law mainly because it had been posited or proclaimed, quite apart from its moral substance. The justices took seriously the notion that many women, venturing into careers, had actually arranged their lives “in reliance on the availability of abortion.” Regardless of the rights and wrongs of the matter, they would feel dispossessed if they were suddenly deprived of a franchise they had come to regard now as a “first freedom.” It was all so thoroughly “pragmatic,” so eminently “realistic,” and so morally empty. And it was the fruit served up in the twelfth year of the Reagan-Bush administrations, after the pro-life movement invested so heavily in the Republican Party.

This was not a moment to seek consolation—that would come later. This was indeed the time for recriminations—to denounce what truly merited moral outrage and to demand an accounting. And that is what took place at the meeting of the Life Forum, as anger built through the day. Calls finally went out to aides in the Bush White House to send over staff, to offer a reaction—and to review their notes: How did this go wrong? Who had recommended these judges? On whose credit were they accepted—and who would pay the cost for their treachery? For treachery it truly was.

The Change of Kennedy’s Colors

Anthony Kennedy was known as a formidable teacher, but it was not his genius at jurisprudence that caused him to be plucked from the federal bench and suddenly wafted to the highest court. He had been on the board of a Reaganite think tank in San Francisco, and he would not have been chosen unless there had been confidence, on all sides, that he fitted the character, and commitments, of the Reagan administration.

But what of his position on abortion? It was politically risky to ask any nominee to the Court about his view on abortion, lest it come out in the confirmation hearings that a “litmus test” had been in play. The deepest assurance had come from one of Kennedy’s colleagues on the Ninth Circuit, who sought to be delicate but decisive: “He’s a serious Catholic,” he said of Kennedy, “and let’s say no more than that.” But in case there was any trace of doubt, Kennedy himself sought to remove it. A friend of mine, who was in the Department of Justice, and interviewed Kennedy, reported later that Kennedy leaned in at one moment, unsolicited, and offered this bit of assurance: There was no need, he said, to worry about Roe v. Wade.

But only a couple of years later, there was indeed a need to worry about it. Kennedy was invited to lecture at Princeton and spend a day, being dined and received in this handsome enclave of the liberal establishment. One professor on the scene remarked later on Kennedy’s curious tendency to make derisive comments about Ronald Reagan, the man who had appointed him. From that incident, some of us drew the inference already that his position in Roe was in doubt. A man so anxious to gratify his liberal hosts in a prestigious school might be even more anxious to gratify the liberal professors and journalists who would make his reputation. He knew just who would put together those admiring volumes, those anthologies of his writings, with the title Mr. Justice Kennedy: A Life in the Law.

And then, just a year or two later, Casey. Kennedy would join Justices O’Connor and Souter in bringing forth an opinion that would ever be marked by the so-called “mystery passage”: that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Three judges sprung from the best law schools in the country revealed something telling in their sensibility as they disclosed what evidently counted, for them, as profundity. For the sake of vindicating the right to abortion, they were willing to affirm solipsism as a principle. How better to remove abortion from reproach or condemnation than to deny altogether the ground for casting judgments of any kind on anyone else?

Constitutional Protection for Human Life

The words of the judges were philosophically untethered, but they were not inadvertent. This bantering, this rhetorical play with relativism, had been at work for many years. And the melancholy lesson conveyed in these decisions is that the conservative judges have their own peculiar openness to moral relativism. For them, it takes the form of legal positivism, leading into moral skepticism. The melancholy part is that I speak here of friends, of men whose judicial sense of things is usually so savvy and so rightly aimed. Still, in a notable speech in the 1970s, Justice (and later Chief Justice) William Rehnquist said that our moral views represent only our “value judgments” until they are enacted into law. “It is the fact of their enactment,” he said, “that gives them whatever moral claim they have upon us as a society.”

Rehnquist was one of the two dissenters in Roe, but his jural understanding was struck from the cast of New Deal jurisprudence with a hefty mixture of positivism: Nothing in the Constitution expresses or implies a “right to abortion,” and therefore, nothing in the Constitution prevents the citizens of Texas from having laws that forbid abortions. But if the legislature of Texas went the way of the legislatures in New York and California, and permitted abortions, nothing in Rehnquist’s jurisprudence would cast up any objection.

In the same way, Justice Scalia has remarked that if the majority in any state wished to install a liberal regimen of abortion, he might not find the policy congenial, but he would have no authority as a judge to overturn it. In a similar vein, he remarked in the Cruzan case in 1990 that the point at which life becomes worthless or open to protection is neither “set forth in the Constitution,” nor is it “known to the nine Justices of this Court any better than… [to] nine people picked at random from the Kansas City telephone directory.” Here we fall into a quarrel among friends, which I will leave to a fuller argument on another day. But as John Paul II has reminded Americans of late, their institutions presuppose the most emphatic understanding of nature, or the “human person,” and the ground of human worth.

When the matter of abortion is taken out of the hands of judges and returned to legislatures in the separate states, who are the beings fit to serve in legislatures or vote for their members? Are the cattle and dolphins voting? James Wilson, one of the premier figures among the American founders, noted in his lectures on jurisprudence that the purpose of the Constitution was not to invent new rights but to secure and enlarge the rights we already possess by nature. Foremost among them was a protection from the lawless taking of life. And in two separate clauses on “due process,” the Constitution registers its concern for the terms on which legislatures arrange, through the laws, for the taking of life. We might aptly ask, Would that principle not encompass a concern for the permissions, granted explicitly by legislatures, for the private taking of life? It does not take an imagination untethered, or the soul of a judicial “activist?’ to find in the Constitution a much larger authority for the protection of human life. But that imagination seems to run, these days, well beyond the reach of “conservative jurisprudence?’

 Change of the Guard

I bother to mention these things because they remind us of the many layers of complication that afflict conservatives and pro-lifers as they focus their strategy, in politics, on changing the membership of the Supreme Court and the lower federal courts. Of course, that membership makes a profound difference. If Robert Bork had been confirmed in 1987, and if George Bush had appointed Edith Jones from Texas, instead of David Souter, Roe probably would have been overturned. Not only would the cast of the laws have been different, but real lives would have been saved.

During the term of the next president, three justices may retire, and one might well be the chief justice. If their successors are appointed by Al Gore, their jurisprudence will weave Roe even more firmly into the fabric of our laws: May Congress continue in its refusal to fund abortions? May medical schools refuse to train students in performing abortions? May Catholic hospitals refuse to perform them, if they are receiving federal funds?

But beyond abortion itself, there are those deeper premises of personal “autonomy” that stand behind the culture of abortion and extend its reach ever further: The fragile coalition so far resisting “assisted suicide” and the “right to die” may readily come apart. On the other hand, we could expect no such hesitation when it comes to gay rights: The judges in the lower courts have already shown a powerful inclination to strike down any law that casts an adverse judgment on homosexuality, and that attitude may be extended into a willingness to sustain measures that would ban from the public schools any speech that would call homosexuality into question. Coming to the end of his second term, Clinton has appointed 40 percent of all federal judges (342, so far, out of 852). That things are not indeed worse than they have been is half-owing to the fact that conservatives still mark a strong presence in the federal courts of appeal, the lingering effects of appointments, over twelve years, by Reagan and Bush.

No one could have the least doubt then that the composition of the federal courts makes the most profound difference. It might even be said that this control of the courts marks the deeper interest at stake in the election for either party. After all, what accounts for the Robert Rubins or the Steven Spielbergs, the urbane rich nestled firmly as Democrats in New York and Hollywood? They want a Democratic Party that can live with vast wealth in private hands—why should they not want even more a party that would lower the marginal tax rates on creative people, rather like themselves, who manage to generate, with their inventiveness, the jobs that sustain families? But these people are put off by what they see as a divide in “culture” that separates them from that collection of evangelicals and small businessmen who often define the Republican Party. Nothing stands more decisively as the marker of that difference in culture than you-know-what. The issue of abortion, they keep insisting, is peripheral; it should not be part of the business of government. But for the sake of keeping that issue out of the hands of legislators, they will continue to make it the foremost concern in their voting.

Hence, a stockbroker I know in Chicago, a man whose interests inclined him in 1992 to vote for Bush, but who finally voted for Clinton, for the sake, he said, of his daughter. Her interests, he presumed, her future and her prospects, depended on preserving the right to abortion. But instead of voting, as a citizen, for legislators who will secure that right, he votes for the president who will spare him the need to vote in that way as a citizen. For that president will ensure that the authority in these vital matters will remain in the hands of judges.

The Power to Overturn Roe

And yet that is precisely the vice that even pro-lifers manage to back into, without quite noticing. They have suffered by now numerous shocks, administered by Republican judges, who have betrayed their faith, and made a wreckage of the trust they had invested in conservative administrations. But many pro-life activists continue to talk and plan about the political situation as though the ultimate aim is to affect, through the president, the appointment of the right judges. No one has caught the sense of the situation more chillingly—or more accurately—than David Forte, of the Marshall Law School in Cleveland: The president becomes important in this scheme, Forte says, because he is converted into the Chief Elector. We elect him because he is the one, in turn, who will choose the men and women who truly do govern us.

There is a need to be delivered from this beamish slumber with a jolt of recognition: President Lincoln did not manage to check and overturn the Dred Scott decision simply by appointing new judges to the Supreme Court. He led a political movement whose object it was to resist that decision with a moderate, firm policy, and he began to resist it, with measures executive and legislative, as soon as he came into office. In June 1862, Congress passed, and Lincoln signed, a bill that barred slavery from the territories of the United States. It was nothing less than a move to check and reverse the decision in the Dred Scott case, not through a constitutional amendment but through an act of ordinary legislation. The dismantling of the Dred Scott decision was not left to the work of judges. It was part of a larger design that would be carried through politically. And what made possible the shifts in the Court was the climate of opinion shaped by Lincoln and the Republican Party as they made their case in public.

One seasoned observer of the political scene has remarked that conservatives and pro-lifers can count on George W. Bush to do the right thing, but not to say the right thing. But if Governor Bush is unwilling to make the case in public, then how would he mold the climate of opinion in which it becomes possible for the judges to begin moving in another direction? And what would any administration of his do, separately, in shaping that climate of opinion with its own measures?

On his first day in office, Bill Clinton signed executive orders that reversed major policies of the Reagan and Bush administrations on abortion: In a stroke, he removed the Mexico Policy, which barred the use of federal money in promoting abortion abroad; the order that barred the counseling or promoting of abortion in clinics funded by the federal government; the directive that barred research in the transplantation of fetal tissue, in projects supported by federal funds; and the order that barred the performance of abortion in military hospitals. Would a second President Bush be prepared, on his own first day, to reverse those policies and install anew the orders held in place by his father? And what would he do on the second day?

The risk is this: If there is no legislative program, no strategy, no schedule of measures to be unfolded, no scheme for tutoring the public, step by step—if there is none of that, why should we be astonished if judges drift off on their own and administer the kinds of surprises that Republican judges have been administering since the days of Harry Blackmun and Lewis Powell?

Who Will Select the New Judges?

Still, with all of the reasons for wishing Bush would find his voice, his heart seems to be in the right place, and against the doubts about Bush, there must stand the conviction even surer that John McCain would be worse. Like Bob Dole before him, he cites his “pro-life” record of voting, and like Bob Dole, he is persistently unable to explain the reasons underlying his judgments.

But the sign that should set off all the alarms is the presence of Warren Rudman, the former senator from New Hampshire, as one of his premier advisers. Rudman, as a Republican senator, preserved an open hostility to the pro-life cause. He was the one who brought forth the gift of David Souter, and if there was true responsibility in politics, Rudman would have been taken as a hostage in payment for Souter. One can only hope that McCain is winging it again when he suggests that Rudman could be the attorney general in a McCain administration, the man who would choose the people who choose judges. The complexion of a McCain administration would look dramatically different if he tagged, as his attorney general, a pro-lifer like Lindsey Graham of South Carolina, who has been one of his most energetic supporters. But unless there is a dramatic sign of that kind, a McCain administration promises to be little more than a slow-acting poison for the pro-life movement.

And yet, who would be in charge of selecting judges in a Bush administration? The word has been going around Washington, D.C., for a long while that Bush would rely on an old friend, placed in one of the most prestigious law firms in D.C.—and a man who happens to be particularly close to Anthony Kennedy. As the speculation runs, Kennedy has not severed his ties to the Republicans, and he still harbors hopes of becoming chief justice. In any sober reckoning, this wish would have to count as a fantasy. Still, this ambition nurtured by Kennedy may be wholesome, and it could have its benign uses.

After all, Kennedy has continued to vote with the Reagan-Bush appointees on issues of affirmative action and federalism, even while David Souter has aligned himself firmly with a bloc on the Left. And as the Court released its first decisions of the new century, the cluster of Reagan-Bush judges minus Souter has held tightly together in cases involving the discretion of the police in dealing with urban crime (Illinois v. Wardlow) and the procedural stalls on the death penalty (Weeks v. Angelone). If Kennedy truly hopes for an ascension at the hand of a Republican president, he might be led to discover certain nuances in his position on abortion, certain angles that permit him to take a second look and form again, with his colleagues, a majority to sustain restrictions on abortion.

There is nothing extravagant in that suggestion, for that is precisely what Kennedy and his colleagues did in Planned Parenthood v. Casey. Perhaps the refinements were lost when set against the dominant message that the judges were reaffirming Roe. But Kennedy was willing to sustain virtually all the restrictions that were sustained in the lower court, and in doing that, he and his colleagues were willing even to overrule an earlier decision. In a case in the early 1980s, the Court struck down the requirement of a 24-hour waiting period because it bore no necessary relation to the decision conclude that a decision might be more informed if attended by “some period of reflection.” Neither did the requirement have to justify itself in terms of the health of the woman. Kennedy, O’Connor, and Souter apparently thought it was legitimate to give a woman information about the state of the unborn child—that the concern for the child might be as important to her as the concern for herself. As the plurality put it, “a State is permitted to enact persuasive measures which favor childbirth over abortion, even if these measures do not further a health interest.”

The fact was that none of these measures, strictly speaking, was incompatible with the right to choose abortion, and therefore, none of them strictly required the overruling of Roe. That makes it all the more plausible to offer a different reading of Casey, and Kennedy might well be open to that reading. In this construal, Kennedy and the Republican defectors had a tenable point as they read the political landscape: The judges could sustain restrictions on abortion, from case to case, far more readily than they could announce overnight that they were dispossessing people of something they had once proclaimed as a “fundamental right.” That kind of news might be altogether too sensational for the public to receive.

A Slow Reversal

On the other hand, it was possible to preserve the facade or the shell of Roe even as the right to abortion was moderated, on abortion and to the health of the pregnant woman. But Kennedy and his colleagues now thought it reasonable to checked, scaled back, in a series of cases unfolded gradually. The chief justice caught this sense of things in Casey, in 1992, when he remarked that “while purporting to adhere to precedent, the joint opinion [written by Kennedy, O’Connor, and Souter] instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.”

Justice Kennedy could earnestly explain that while he held to Roe, the right to terminate a pregnancy could not mean the right to kill a child at the point of birth, as in partial-birth abortion. Neither might it mean the right to kill a child solely because the child was afflicted with spina bifida or Down’s syndrome. Justice White was one of the original dissenters in Roe, but he once startled some of his colleagues by suggesting that he too could accept Roe v. Wade in a more modified construction. Roe could be scaled back to mean that there was a right to abortion in those rare instances where it might be justified—which means, for most people, when the life of the mother seems endangered.

But with that construal, the permission to perform abortions could be brought closer to its state in the common law before Roe. There is ample reason to believe that the public would agree with every step as abortions are subject to more restrictions. Over time, then, it would become less and less unthinkable that the final step could be taken and Roe cast aside, with a flick of the judicial wrist—if indeed there was even a need any longer to flick it aside.

Can Kennedy Find His Pro-Life Roots?

But all of that suggests a political design in which the burden of leading the change would not be left to the courts. A scheme of this kind would require a schedule of measures, an ongoing stream of legislative moves and executive orders, unfolding in sequence. All of them will be challenged in the courts, and the task of Kennedy and his colleagues would simply be to use their arts to sustain them, one by one. For that work Kennedy would be eminently suited, both in his skills as a judge, and in the convictions that were once planted within him, the convictions that he may be pleased to summon once again.

But in the annals of finesse, the maneuver that should be preserved in legend and song was the move carried through subtly by Lyndon Johnson to remove Nicholas Katzenbach from the Department of Justice. Johnson lured Katzenbach into the State Department, with the expectation, fed by rumors, that Dean Rusk would soon be retiring. Katzenbach would be in place then to become secretary of state, as Johnson’s trusted man in the department. As it turned out, though, Rusk never did retire as secretary of state, and Katzenbach languished in the department, waiting for the promotion that never came. At the same time, however, the departure of Katzenbach managed to remove, from the Department of Justice, the last loyalist attached to Bobby Kennedy.

If a Republican president were elected, and the conservative judges were reinforced, Justice Kennedy might discover again the interests that made him part of a ruling coalition, perhaps even a shaper and leader of that coalition. That ambition might be encouraged. But in the strange alchemy of success, the chief justice too may find his own morale lifted, as he comes to be the leading figure again of a majority buoyed by new members. Suddenly, the art of exercising power may become fun again, and the chief may decide to stay on after all. For Justice Kennedy, that chief justiceship may not arrive, and yet there would be consolations. He may discover a certain satisfaction in finding his way back to the convictions that once settled easily with his character; and in discovering again home ground, he may be surprised by the quiet joy of meeting again his better self.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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