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Were Republican-appointed Justices who favored Roe in 1973 “liberal”?

May 22, 2008

My original claim was two-fold: 1. “Liberal” Supreme Court Justices alone are not to be blame for Roe; 2. Republican-appointed Justices over the past 35 years not only were responsible for Roe, but also were responsible for sustaining Roe. I shall expand on the second aspect of my claim in another post. Here I will attempt to diffuse the mist of a revisionist history that deems the 1973 Supreme Court a “liberal” Bench.

To begin, let me reiterate that Roe v. Wade came before a Supreme Court whose make-up was six Republican-appointed Justices and three Democratic-appointed Justices. Of course, nothing precludes a Republican president from nominating a “liberal” Justice, just as nothing precludes a Democratic president from nominating a “conservative” Justice. But that’s theory. I’m interested in the historical reality. The final vote in favor of Roe was 7-2, with five Republican-appointed Justices and two Democratic-appointed Justices in step. Were all five Republican-appointed Justices really “liberals”? Let’s look at each Republican-appointed Justice who voted in favor of Roe to determine whether or not he was discernibly “liberal” when he cast his vote.

Justice Harry Blackmun

Blackmun, who wrote the Majority opinion for Roe v. Wade, was appointed by Richard Nixon. Prior to his Supreme Court appointment, Blackmun was a strong Republican, and he generally was viewed as a conservative by his peers. In 1972 and again in 1976 (three years after Roe), he voted in favor of the death penalty in the cases of Furman v. Georgia and Gregg v. Georgia. In 1971, Blackmun dissented from the Court’s decision in Cohen v. California, which overturned the California Court of Appeals’ decision that wearing a jacket that said “F*ck the Draft” in a courtroom was crime. That same year, he dissented in the New York Times Co. v. United States, arguing against the right of the New York Times to publish classified Pentagon papers. During and in the wake of Roe v. Wade, Blackmun had a track record of conservative positions. It was not until a decade after Roe that Blackmun began to align himself with more liberal policies, and in the mid-1990′s he changed his mind on the death penalty. Notwithstanding his shift to the left in the 1980′s and 1990′s, Blackmun’s political and judiciary views were rather conservative and predictable leading up to, and immediately following, Roe.

Chief Justice Warren Burgher

Burgher, also appointed by Nixon, joined with Blackmun’s lead on Roe. Prior to his appointment to the Supreme Court in 1969, Burgher was a staunch Republican supporter, working on a number of campaigns including Dwight Eisenhower’s. Burgher was a strong critic of the liberal Chief Justice Earl Warren (Eisenhower would later remark that appointing Warren was the biggest mistake of his presidency), and was viewed as a strict, constructionist Justice. Though he worked against segregation, his views on the death penalty were quite conservative and were on display in his dissent from Furman v. Georgia, which sought to invalidate capital punishment. He voted to reinstate the death penalty in 1976 with Gregg v. Georgia. Into the 1980′s Burgher remained conservative on his views of gay rights, upholding the criminalization of sodomy, and on his views of crime and punishment, dissenting in the case of Solem v. Helm. Apart from his support for Roe, Burgher’s tenure as Chief Justice was remarkably uncontroversial and moderately conservative.

Justice William Brennan

Brennan, who was appointed by Dwight Eisenhower, was a Democrat placed on the Court in order to help with Eisenhower’s reelection bid in 1956. A known liberal since his time on the Warren Court, it was not surprising that he joined Justices William Douglas and Thurgood Marshall in supporting Roe.

Justice Potter Stewart

Stewart, who was also appointed by Eisenhower, grew up in a Republican home (his father was the conservative mayor of Cincinatti and a justice on the Ohio Supreme Court). He was known as a moderate and a dissenter within the more liberal Warren Court, arguing that its interpretation of First, Fifth and Fourteenth Amendment rights extended beyond the intentions of their framers. He supported the invalidation of the death penalty under Furman v. Georgia in 1972, but then led the Majority in reinstituting its use under Gregg v. Georgia in 1976. Stewart’s voting record remained moderate throughout his tenure on the Court, though he dissented far more in the liberal Warren Court than in the centrist Burgher Court.

Justice Lewis Powell

Powell, appointed by Nixon, had a solid reputation as a moderate Justice, often seeking consensus and supplying the “swing vote.” In Regents of the University of California v. Bakke in 1978, he was alone in providing an compromise opinion that some affirmative action policies should be struck out and that there were others that could be consitutional. In Bowers v. Hardwick, Powell was the “swing vote” that upheld Georgia’s anti-sodomy laws. Powell’s record on the Supreme Court is remarkably centrist and, one might argue, one of appeasement.

I encourage a study far more comprehensive and indepth than my meager summary here. But there is no question that the notion that the 1973 Supreme Court that ruled in favor of Roe was “liberal” does not stand up to historical scrutiny. Blackmun and Burgher were conservatives in 1973 (the former defecting left in the 1980′s and 1990′s), and Stewart and Powell were moderates. Brennan is the only Republican-appointed Justice of the Roe Court who was truly a liberal.

No matter how one slices it, the Supreme Court in 1973 had three (Brennan, Marshall, Douglas), arguably four (Stewart), “liberal” justices. That is not a majority, and it certainly does not explain why and how seven Justices pulled in favor of Roe. Bottom line, conservative and moderate Justices joined with liberal Justices to rule in favor of Roe, and of the five Republican-appointed Justices among them, only one can truly be labelled a “liberal.”

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32 Comments
  1. May 22, 2008 2:32 pm

    Poli,

    Why does it matter what their politics were before or after the decision? It is primarily the decision itself that demonstrated they at least all subscribed to a liberal understanding of the Constitution. That is, they all clearly agreed with the liberal idea that previously unseen rights could be discovered implicit in the Constitution.

  2. May 22, 2008 2:37 pm

    Another way of saying this is that there’s a difference between someone’s political views and someone’s jurisprudence.

    When we are saying they are liberal we are referring to their jurisprudence.

  3. May 22, 2008 2:39 pm

    OK not that I have any authority here but I think this is getting silly. So before it spills over again, here’s my cent. Poli, your point is simple, informative-and modest-enough. That is it is questionable whether the Roe v Wade decision was a liberal one. This does not preclude that is right in fact, it is simple a quick and dirty-yet effective- argument to suggest that there is no monopoly on the interpretation. All the other nuance is good dialogue to have, in general, but you should not feel it does anything to your point. Unfortunately some people invest quite a bit too much into blog musings and such. As for me, your point is well taken, for what its worth (which is not to much by design, I assume?).

  4. May 22, 2008 2:41 pm

    forgive my terrible grammar and spelling there, i am sure you can fill in the gaps and understand it as evidence that I am not investing too much in these posts…

  5. M.Z. Forrest permalink
    May 22, 2008 2:45 pm

    Zach,

    If we can only determine these ex post facto, what point is there in attempting to discern liberalism/conservatism before the fact? You are arguing your conclusion as your premise.

  6. May 22, 2008 2:48 pm

    M.Z.,

    I wasn’t attempting to discern whether a justice is liberal/conservative a priori – that’s Policraticus’s goal.

    Was I ?

  7. May 22, 2008 3:03 pm

    Poli,
    I would refer you to the Posner/Landes paper I referenced in my earlier comment. Save the following target link as a .pdf and you should be able to open it. (link).

    The pertinent part is the ideological rankings, with 1 as a strict constructionist and O as a liberal.

    Burger (not Burgher): .737
    Blackmun: .478
    Brennan: .267
    Stewart: .562
    Powell: .680

    To set this in the context of the post Carter Republicans:
    Rehnquist: .806
    Thomas: .803
    Scalia: .754
    O’Conner: .685
    Kennedy: .645
    Souter: .418
    (Alito and Roberts are not tested, presumably for a lack of sufficient decisions.)

    So what does it show? The post-Carter Republicans are genuinely more conservative than the pre-Carter Republicans, and that you need truly strict constructionists following the Carter years are in fact consistently anti-Roe.

  8. M.Z. Forrest permalink
    May 22, 2008 3:12 pm

    Zach,

    If you are going to use it as argument for voting for a particular candidate who will appoint certain justices, a reliable a priori assessment seems essential.

    Mr. Braunlich,

    The test shows that the candidates are more strict constructionist. Originalism has gone in and out of vogue depending on whose ox was being gored.

  9. Drillbit #24 permalink
    May 22, 2008 3:14 pm

    Republican-appointed Justices over the past 35 years not only were responsible for Roe, but also were responsible for sustaining Roe.

    Precisely. I commend you on your critical-thinking skills.

  10. May 22, 2008 3:22 pm

    M.Z.

    Agreed, but that’s not the argument I was making.

    I was saying that we know from history, from that particular decision, that those justices agreed with the fundamental premise of liberal jurisprudence – that rights can be discovered in the Constitution by enlightened Justices.

    As to what you are saying – of course, we need to know what types of Justices a potential president will nominate.

    I’m gonna stop posting because it’s fairly clear I’m making no sense to anyone here. If you’d like to hear my whole take on this ridiculous subject please see my site. Sorry!

  11. jpf permalink
    May 22, 2008 3:25 pm

    To be honest, whether “liberal” or “conservative” or “Republican” or “Democrat” the primary connection between all of these Federal judges is the willingness of most to take power away from the States and local governments and to concentrate power in the hands of the Federal Government. This is something that Liberal/Conservative and Republican/Democrats at the Federal level all find acceptable since it concentrates power in their hands.

    As was pointed out in the previous string of comments prior to Roe abortion was legal in some states, e.g., New York and California where Republican Governors Rockefeller and Reagan signed laws legalizing abortion in their respective states. All Roe did was to make Abortion a Federal issue and to take it out of the discretion of state governments (as the court also did capital punishment, gun control and a multitude of other issues).

    Roberts and Alito were not chosen primarily for any pro-life or anti-Roe beliefs they may have expressed in the past, rather they were chosen for their support of the ever increasing powers of the Unitary Executive.

    Republican’s are all for appointing strict constitutionalists so long as they tend to forget about the separation of powers and the 10th Amendment.

  12. May 22, 2008 3:36 pm

    I suppose the real question is if we are graced with a McCain White House and he puts up a Justice that odds are has the tempermant to overturn ROE v Wade if all of us will fight for him tooth or nail. Or we will sigh and then bash McCain when he has to put a more moderate up in case we don’t help give him the political cover to get the guy or gal on

  13. Policraticus permalink*
    May 22, 2008 3:36 pm

    Why does it matter what their politics were before or after the decision? It is primarily the decision itself that demonstrated they at least all subscribed to a liberal understanding of the Constitution. That is, they all clearly agreed with the liberal idea that previously unseen rights could be discovered implicit in the Constitution.

    The claim is not: Roe was not a “liberal” decision.

    The claim is : Roe wasn’t decided by a “liberal” Court. There is nothing a priori about this, as it is based on the historical (and empirical) data of voting trends among the Justices of the Supreme Court. Conservative and liberal Justices put Roe into motion.

  14. Christopher Gant permalink
    May 22, 2008 4:05 pm

    Is federalism really all that pro-life? Returning abortion policy to the states is consistent with many states, including states with a majority of the population of the U.S., continuing to permit abrtion with little restrictions. It seems to me that a truly pro-life constitutional vision would not want to return abortion policy to the states at all. Rather, it would hold that state laws permitting abortion are unconstitutional because they deny equal protection of the laws to a whole class of human beings (fetuses) inviolation of the Fourteenth Amendment. Of course, under the originalist theory of constitutional interpretation there is no way to arrive at this understanding of the Foureenth Amendment. Notice also the way that the conservative critique of Roe centers entirely on issues of federalism and the role of the courts in making policy, while the pro-life critique centers entirely on the personhood of the fetus. The conservative critique has pro-lifers talking about thnigs that are really tangential to the pro-life cause. The pro-life movemnet has spent the last 25 years trying to get the courts and the American people to agree with a conservative vison of the constitution that does not affirm the personhood of the fetus or provide any constitutional protection to them. That’s a bit stange huh?

  15. Jillian G. permalink
    May 22, 2008 4:19 pm

    With Democrats controlling congress and on target to increase their margins, it will hardly matter who a President McCain would nominate to SCOTUS. He will be completely ineffective in that regard.

  16. Michael Enright permalink
    May 22, 2008 4:33 pm

    I think the problem is that we just don’t always mean the same thing when we use the word “liberal”.

  17. May 22, 2008 4:35 pm

    A return to federalism represents an incremental gain for the pro-life movement. Although it would be preferable to have the courts recognize the right to life’s extension to unborn people, barring that I would prefer to have a policy in which Alabama, South Carolina, Nebraska, Michigan and other states could go further than current judicially mandated restrictions allow.

  18. May 22, 2008 5:15 pm

    Clarence Thomas used to be a staunch Democrat and Hillary Clinton a staunch Republican. Jane Roe used to be pro-choice and Ted Kennedy used to be pro-life. I find such facts useless in determining their present positions.

    Is there any doubt as to how Scalia, Thomas, Alito, and Roberts would vote if the opportunity to overturn Roe came up? So then what’s the problem? McCain will appoint someone like them or he will face the wrath of the right a la Harriet Miers. Instead of “What would McCain do?” you’re trying to argue that the question should be “What would McCain do if he were Eisenhower or Nixon and we were living in the 70′s?”

  19. M.Z. Forrest permalink
    May 22, 2008 5:17 pm

    For the record, I think it is abundantly clear from his rulings so far that CJ Roberts would not overturn Roe. He may exception piece by piece, but I think the evidence is overwhelming that he wouldn’t reverse Roe.

  20. May 22, 2008 5:27 pm

    “For the record, I think it is abundantly clear from his rulings so far that CJ Roberts would not overturn Roe. He may exception piece by piece, but I think the evidence is overwhelming that he wouldn’t reverse Roe.”

    I am not seeing that yet. I so thinkl that Roberts has concerned about setting a fondation that he overturned it that that would not be reversed over new political fortunes

  21. May 22, 2008 5:36 pm

    “Is federalism really all that pro-life? Returning abortion policy to the states is consistent with many states, including states with a majority of the population of the U.S., continuing to permit abrtion with little restrictions. It seems to me that a truly pro-life constitutional vision would not want to return abortion policy to the states at all. Rather, it would hold that state laws permitting abortion are unconstitutional because they deny equal protection of the laws to a whole class of human beings (fetuses) inviolation of the Fourteenth Amendment”

    I allows it to get back in play again. It also allows that the dicussion and winning of hearts minds and souls will have to occur on a local level. Something I hate to say perhaps many of us fear because that means we might have to work instead of blaming it on Bush or Reagan or to look at some post here Nixon and Eisenhower for goodness sake!!!

    We have seen that as to state mandated State executuon it works why not abortion!!

  22. May 22, 2008 5:40 pm

    “For the record, I think it is abundantly clear from his rulings so far that CJ Roberts would not overturn Roe. He may exception piece by piece, but I think the evidence is overwhelming that he wouldn’t reverse Roe.”

    Based on?

    If you’re going to throw around words like “abundantly clear” and “overwhelming,” you should probably explain how you reached this rather novel assessment of Chief Justice Roberts’s jurisprudence.

  23. M.Z. Forrest permalink
    May 22, 2008 5:53 pm

    No problem Feddie. I would start with his opinion in Bong Hits 4 Jesus. (Morse v. Frederick) In Gonzales v. Carhart, Roberts declined to join Thomas’s concurrence, preferring to join Kennedy’s more limited opinion.

  24. May 22, 2008 6:04 pm

    MZ-

    Perhaps you could point to the language in BH4J that you find especially troubling. As for Carhart, I don’t see how Roberts’s decision not to join Thomas’s concurrence is any way telling. The issue in Carhart was much narrower than that at issue in Casey, where the core holding of Roe was up for reconsideration. Thomas’s concurrence went beyond the issue before the Court, and while I greatly appreciate the substance of his concurrence, I think it is a significant stretch to reach the conclusion that you’ve reached about Roberts from this inaction. i will await your response as to BH4J though before reaching any final conclusion about the merits of your contention.

  25. May 22, 2008 6:17 pm

    Christopher is (if I’m not misunderstanding) actually getting at something extremely important, in my view.

    Conservative pro-lifers are approaching the problem of abortion in a manner that is bound to turn non-abortion-related jurisprudence in a direction that is far more radical than a majority of Americans would appreciate.

    One of Movement Conservatism’s fondest dreams is to nullify the new roles that government assumed during and after the New Deal. A strict constructionist application of the Constitution would likely result in just such an outcome.

    Overturning Roe through the means of appointing enough Strict Constructionist judges to overturn it might result in those same judges also overturning lots of other established law and precedent, including extremely popular programs and even whole departments of the federal government, resulting in lots of deeply unpopular chaos. I’m sure the Republicans know this.

    I think a constitutional amendment that guarantees the right to life from the moment of conception (and, the societal consensus that would be necessary to enact that) would be a far more effective means of preventing abortions than an (over-turnable) SC decision.

  26. May 22, 2008 6:20 pm

    Matt-

    Please name one Supreme Court justice who is a “strict constructionist.”

  27. May 22, 2008 6:38 pm

    Feddie – Justices Thomas and Scalia?

  28. May 22, 2008 6:41 pm

    Matt-

    Both Justices Scalia and Thomas are originalists, not strict constructionists. Moreover, Justice Scalia explicitly denounces strict constructionism is his book, “A Matter of Interpretation.”

  29. May 22, 2008 6:51 pm

    Point taken, Feddie – I was using the looser definition that encompasses related elements of conservative jurisprudence. I forget that there are lots of lawyers here :)

  30. M.Z. Forrest permalink
    May 22, 2008 8:38 pm

    Feddie,

    My apologizes. After reviews bh4j, I didn’t see what I thought was there. I may have instead been projecting what I had read by several authors including Sunstein here:

    This, in the chief justice’s view, is entirely desirable. “If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more,” he said.

  31. May 22, 2008 9:15 pm

    That’s a fairly typical and proper sentiment of many judicial conservatives, and while I tend to be impatient with the incrementalist approach taken by Roberts and Alito, I don’t think it is fair to read into that jurisprudential temperament a reticence to overrule Roe when the time is ripe to do so.

    I understand the broader point that you and Poli are making (i.e., that placing all of one’s eggs in the Supreme Court basket hasn’t necessarily worked out well for prolifers), but, respectfully, I think it is overstating matters to conclude that there is overwhelming evidence that Roberst and Alito will not vote to overrule Roe. Roberts and Alito both upheld the federal PBA act, Roberts has gutted several precednts of late, and Alito dissented in the Casey decision as a federal circuit judge when it was before the Third Circuit, arguing that many of Pennsylvania’s restrictions on abortion were constitutional.

    In sum, I actually believe there is quite a bit of evidence to support judicial conservatives and pro-lifers’ hope that Roberts and Alito will rule the right way when the time comes.

  32. Michael Enright permalink
    May 22, 2008 11:13 pm

    Matt–

    I think your analysis of conservative legal thought is somewhat off. You are confusing two different conflicting currents of conservative/libertarian legal thought.

    Most of the fight around New Deal measures regards the idea of rights that aren’t spelled out in the constitution. Those attacking the New Deal basically said that there are economic rights that the New Deal violated that are not spelled out in the Constitution. They drew on a set of cases involving, for example, the right to be allowed to send your children to private school and other parenting rights. These are considered “substantive due process” rights of the economic type. Those supporting the New Deal basically said that these rights that aren’t written in the Constitution don’t exist, and that majoritarian democracy cannot be limited by these non-rights.

    Much later, a different line of “substantive due process” rights sprang up. These cases, most notably involving contraception and abortion, also saw themselves in the line of the turn of the century parenting rights cases. They make claims to support rights not explicitly written in the Constitution. The original intent people that oppose abortion generally make the same type of arguments that those supporting the New Deal, that these rights are not in the Constitution. That is to say the same type of “orriginal intent” arguments that are made to oppose abortion rights cannot be made to attack the new deal, in fact, they support the new deal. Both New Deal supporters and abortion opponents are largely fighting against what they see as rights not in the constitution, and they both see themselves as fighting for the powers of the majoritarian democracy against a usurping judiciary who make up rights and get in the way.

    I have been at national Federalist society conventions. I have to say that those opposing new deal measures are in the minority, and are generally disagreed with as most of the “orriginal intent” people see the parallels above and don’t believe that there are constitutional rights not explicitly written in the Constitution. This is not to say that there are not movement Conservatives who oppose both abortion and the new deal. However, they can’t use the same reasoning to oppose both, and generally they are seen as contrasting lines of thought.

    That being said, I think it is strange to see that people who have a moral message against abortion all seem to end up talking about orriginal intent. They all seem to espouse the same theory of constitutional interpretation as if the issue was actually about the constitution and not really about babies.

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