Standing firmly pro-life: A JFK legacy?
Catholics tend to harbor a mild ambivalence toward John F. Kennedy, whether it be induced by the alleged extra-marital affairs or the supposition that his faith meant nothing to his politics. Say what you will about JFK, there is one element of his presidency that I think deserves a return of Catholic appreciation: his nomination of Supreme Court Justice Byron White.
The ruling on Roe v. Wade was the result of a 7-2 vote, five of the majority votes coming from Republican-appointed Justices. Byron White was the senior dissenting judge, joined by a young William Rehnquist, who had been appointed by President Nixon. In his written opinion, White comments are apropos:
With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.
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The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
When the legality of abortion was once again on the line before the Supreme Court during the 1993 Planned Parenthood v. Casey case, White was part of the initial six Justice majority that would have, at best, overtuned Roe and would have, at least, upheld the numerous restrictions on abortion for which Governor Bob Casey of Pennsylvania had fought. But as we know from history, Bush-appointed David Souter and Reagan-appointed Anthony Kennedy defected to join with Reagan-appointed Sandra Day O’Connor to craft the Court’s plurality opinion, which is the precedent of the Court. White remained stalwart, nonetheless, once more taking a stand with Chief Justice Rehnquist along with Republican-appointed Justices Clarence Thomas and Antonin Scalia.
White’s positions on such issues as the death penalty and civil rights, likewise, provide White with some solid pro-life credentials. But it his uncompromising stand against judicial sanction of the legality of abortion in the United States that is most impressive about White’s Court tenure in terms of the pro-life cause. Again, say what you will about JFK. While he in no way could have anticipated the drama of Roe, he nevertheless gave the U.S. a judge who would truly work for justice for the unborn. In this regard, Catholics ought to consider always this aspect of JFK’s legacy alongside whatever criticisms they may want to level against the man.
More on White: Wiki, University of Colorado obituary, Oyez, Encyclopedia of World Biography
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White was an excellent justice.
I agree as to White, but I don’t think it tells us much about JFK himself. Presidents don’t deserve much blame or credit for all of the unforeseen ways in which judges rule in the years or decades after that President leaves office. Abortion wasn’t an issue in the early 1960s, and JFK’s appointment of White came about not because he foresaw Roe but because 1) he and White had been long-time buddies both at Oxford and in the Navy, and 2) White had the most impressive resume of any lawyer who has ever lived (Rhodes Scholar, Supreme Court clerk, and champion NFL football player!). Similarly, it is impossible to blame Reagan for Kennedy’s last minute flip in Casey (which was completely unanticipated,).
I agree as to White, but I don’t think it tells us much about JFK himself.
Right, which is why I mentioned that JFK would not have known how White would have viewed the abortion question. Nevertheless, while I do not think prescience can be the object of a value judgment, I think Supreme Court nominations are invariably linked to their nominating presidents and, in some measure, carry with themselves that president’s legacy.
SB:
My limited understanding of the Kennedy nomination is that there was significant pressure to ensure, as much as possible, that he would vote to overturn the judicial fiat of Roe, and that even his priest was informally consulted (not on his legal mind, but on his character).
Fortunately, there has developed a strong and deep well since the 70s and 80s for a GOP president to choose from.
It doesn’t matter how White viewed the question of a woman’s right to privacy and abortion. He did not dissent based upon these grounds. Read the quote:
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.
We so often forget now 30+ years after Roe that there was no Federal law prohibiting abortion at that time. It was prohibited by the States. At the time of Roe two states, New York and California, and agreed to by their Republican Governors Nelson Rockefeller and Ronald Reagan.
White bases his dissent on the issue of State’s Rights. Do State’s have the right to pass laws against abortion? Should this matter be left to the people and their local governments or should it become a matter for the Federal courts. White felt it was a matter that should remain with the States. He states this more clearly in other sections of the dissent that are not quoted:
The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
Given that in the early 1960’s State’s Rights were an extremely important issue, I would imagine that President Kennedy would have known his opinion on that issue prior to appointing him to the court.
Roe, if it ever is overturned (which I hope it is) will return the abortion issue to the state. I know there are many out there who want it to be a Federal issue and a Federal ban, but you have to remember that any federal government powerful enough to outlaw abortion in the states is also powerful enough to legalize it in the States (same with the issues of same sex marriage, right to bear arms, death penalty, etc.).
One final point if the Republicans ever wanted to end this issue (even as a stop gap measure) all they would have had to do would have been to pass legislation – by simple majority vote – that would have stated that federal courts do not have the jurisdiction to review state laws involving abortion. Such a bill has been introduced, the Sanctity of Life Act by Congressman Paul, but it has received little, if any, Congressional support.
The second paragraph should read:
We so often forget now 30+ years after Roe that there was no Federal law prohibiting abortion at that time. It was prohibited by the States. At the time of Roe two states, New York and California, and agreed to by their Republican Governors Nelson Rockefeller and Ronald Reagan, had already legalized abortion. Of course, Reagan later said it was a bad decision, but what else could he say when running for the Republican nomination for president. When given the chance to give the pro-life cause more than lip service his actions were clearly pro-abortion, i.e., signing a liberalized California abortion law and appointing pro-Roe Justices to the Supreme Court.