American Enterprise Online | 9.13.05
By Alan W. Dowd

It’s the autumn of 1953, and a Senate panel is grilling the President’s nominee to the Supreme Court about his views on segregation. Some senators, committed to the old and ugly “separate but equal” doctrine fashioned by the Court a half-century earlier, want to make sure this nominee will support the “law of the land” as determined in Plessy v. Ferguson.

But the nominee, suspected of holding progressive views on race and civil rights, fails to reassure the status-quo senators. Instead of telling them that Supreme Court decisions are irreversible—and by implication that each Court is infallible—he bluntly explains that he would be open to reviewing and if necessary overturning decisions that encroach upon any American’s right to life, liberty, pursuit of happiness or equality before the law.

Days later, a divided Senate fails to confirm the nominee. When Brown v. Boardof Education comes before the Supreme Court the following year, Earl Warren is not there to convince and cajole his colleagues that separate is inherently unequal or to author the decision that would finally reverse the Court’s backwards writ in Plessy.

Thankfully, that’s not exactly how things transpired in 1953. In fact, President Eisenhower used a recess appointment (gasp) to install Governor Warren, who became Chief Justice Warren and helped undo his predecessors’ illiberal handiwork. Despite the imperfect parallels, perhaps this alternate history adds some perspective to the debate over what Supreme Court nominees should be allowed to think, how they express it and even whether there’s room on the Bench for someone who disagrees with yesterday’s decisions.

Dark Days

Although they say otherwise, with their soft-spoke sobriety, several senators oppose any nominee who would dare nudge the Court away from the status quo laid down by Roe v. Wade in 1973. The pre-confirmation skirmishes over John Roberts only underscore this.

Consider Senator Barbara Boxer, who has threatened to filibuster anyone who might threaten Roe’s supposed protected status. “We cannot go back to the dark days,” she said in July. “Roe must remain the law of the land.” Along with a handful of other senators, Sen. Boxer launched a website to help Americans find out where Judge Roberts “stands on the issues that will impact their lives like the environment, their right to privacy, corporate and business practices, the education of their children, the health care of their families and their civil rights.”

Likewise, Sen. Charles Schumer concludes that Judge Roberts must “prove that he is not an ideologue.” According to Sen. Schumer, “It is vital that Judge Roberts answer a wide range of questions openly, honestly, and fully in the coming months. His views will affect a generation of Americans and it is his obligation during the nomination process to let the American people know those views.” In other words, Sen. Schumer expects Judge Roberts to reveal how he would rule on cases that might encroach upon Roe.

Then there is the sad case of Sen. Dick Durbin. According to numerous published reports, including a Los Angeles Times essay by respected George Washington University professor Jonathan Turley, the senator asked Judge Roberts “what he would do if the law required a ruling that his church considers immoral.” Turley reminds us why Durbin would ask such a question: “Roberts is a devout Catholic and is married to an ardent pro-life activist.”

One is left to infer from Durbin’s question that being Catholic and/or pro-life is grounds for concern—why else would he ask?—if not for outright rejection of a nominee.

As Dick Polman of Knight-Ridder smartly observes, “Today's Democrats, above all, want specificity on abortion.” However, Polman found that there is more at work here than blind devotion to Roe. There is also hypocrisy. “Sen. Pat Leahy said…that if a nominee doesn't declare advance support for Roe vs. Wade, ‘I don't see how they get confirmed.’ Yet back in 1999, Leahy told PBS, ‘You cannot have a small clique decide they want to know exactly how judges are going to rule before they go on the bench.’”

In short, according to these senators and more than a few others, the sanctity of Roe is beyond debate or dissent; and anyone who thinks otherwise doesn’t belong anywhere near the Supreme Court. Never mind that Americans have always been troubled by Roe and are increasingly squeamish about what it has spawned.  

For example, a 1995 Gallup poll found 56 percent of Americans called themselves pro-choice; only 33 percent said they were pro-life. A 2005 Gallup poll revealed a virtually even split, with 48 percent labeling themselves pro-choice and 44 percent saying they are pro-life (a statistical dead-heat). Even these numbers are a bit deceiving, however: Gallup has found that fully 75 percent of Americans support restrictions of some sort on abortion.

The shift in attitudes is no doubt being spurred by scientific advances. Pre-natal imagery is giving us a new window on life at its very earliest stages. Recall the head-turning GE commercial: “When you see your baby for the first time on the new GE 4D Ultrasound system, it really is a miracle.” (Italics added.)

Micro-surgery is now, incredibly, being performed both inside and outside the womb. As a Newsweek cover story explained, “No matter what legislators, activists, judges or even individual Americans decide about fetal rights, medicine has already granted unborn babies a unique form of personhood—as patients.” Again, I add italics to underscore how one of the traditional bastions of abortion rights—the mainstream media—is being buffeted by change.

A Crumbling Case

In short, medicine can no longer avoid recognizing the continuity of human life, stretching not from birth to death, but from conception to death; the media can no longer use euphemism to conceal what abortion does; and whether they realize it or not, the American people are brushing up against the last frontier of civil rights—equality and opportunity for the very weakest among us.

Why should the High Court be immune from this cultural ferment? If the American people are reevaluating their views on abortion, what’s wrong with a Supreme Court nominee saying it’s time for the Court to do the same? For that matter, what’s wrong with a nominee having strong views about abortion?

Nothing, it appears, as long as those views protect the status quo. Consider the case of Ruth Bader Ginsburg, who won Senate approval 96-3. In 1993, prior to being confirmed, she argued that the right to abortion “is something central to a woman's life, to her dignity. It's a decision that she must make for herself.  And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.” (So much for Sen. Schumer’s ideologue test.) Ginsberg’s are bold, ideological words. They reflect the sentiment of millions of Americans. Doubtless, Justice Ginsberg promotes and defends those views with her colleagues on the Court.

But what works for one side should work for the other. Why couldn’t—why shouldn’t—a Supreme Court nominee be able to say something equally bold about the other side of the abortion equation, something like the following?

The state has an important and legitimate interest in protecting the potentiality of human life. In light of present medical knowledge, the compelling point is at viability.State regulation protective of fetal life after viability has both logical and biological justifications. If the state is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period.

No matter what Chuck Schumer, Dick Durbin and Barbara Boxer want to believe, that’s not a “far-right-fringe” view. How can I be so sure? Because that’s what Justice Harry Blackmun, Roe’s author, penned in 1973. I recognize that he trumped those phrases with loopholes that had the effect of legalizing abortion on demand, but I suspect most Americans and even most Roe supporters are unaware that his fateful decision includes such “anti-choice” language. In fact, it includes pro-life language: Blackmun actually slipped and used the word “mother” in the Roe decision—an unintended admission that abortion opponents have it right: It is a child. After all, there can be no mother without a child.

A future Court—perhaps “the Roberts Court”—may wish to accept Blackmun’s invitation to revisit Roe “in light of present medical knowledge.” More than 30 years of scientific advancement have obliterated the line that once separated the “viable” from the “unviable,” reminding us that birth is arbitrary but conception is not. People are born at ten months, seven months, five months and earlier—each premature birth pushing the bounds of viability further back and haunting the conscience of a nation.

This arbitrary label of viability will continue to change; our limited understanding of life will continue to be challenged; and Roe’s foundation will continue to crumble. Perhaps someday it will even go the way of Plessy and so many other decisions made by flawed and fallible judges.


Meet the Press, July 24, 2005.

CNN/USA Today/Gallup Poll, June 24-26, 2005

Gallup Poll, May 2-5, 2005

JUSTIN M. NORTON, “Boxer: Filibuster to block anti-abortion Supreme Court candidate,” Associated Press Writer, July 5, 2005

Dick Polman, “Dems want Roberts to make stances clear,” Knight Ridder Newspapers
Jul. 31, 2005

“Roberts found 'deep regard' for court arguing cases,” By Joan Biskupic and Toni Locy, USA TODAY, July 19, 2005.