SHOULD CONSERVATIVES GIVE UP ON SUPREME COURT?-HUMAN EVENTS 7/11/92 In the wake of the Supreme Court's June 29 decision in which a plurality of two justices appointed by Ronald Reagan and a third named by George bush went out of their way t reaffirm the court's 1973 invention in Roe v. Wade of a purported constitutional right to have abortions, stunned conservatives were asking themselves what more, if anything, can be done to bring a halt to the arbitrary - and blatantly unconstitutional-usurpation of power by judges in this country. There have been five vacancies on the nine-member court since 1981. On each and every one of those occasions liberals accused the White House of administering ideological "litmus" tests on a variety of political issues to potential nominees. And just as frequently Administration spokesmen denied the imposition of such tests, insisting that, in choosing justices, Presidents Reagan and Bush had only one overriding objective: that those selected for the court would honor their solemn obligation as judges - indispensable to our system of separation of powers - to interpret the Constitution, not impose their own personal whims about what they would like it to say. Yet in their jointly written plurality opinion in Planned Parenthood v. Casey, Reagan-appointed Justices Sandra Day O'Connor and Anthony Kennedy, together with Justice David Souter, a Bush appointee, committed the one transgression that the chief executives to whom they owe their high positions had taken pains to avoid - judicial activism. At issue in the case was the constitutional validity of a Pennsylvania statute placing several restrictions on the process of obtaining an abortion in that state, and many had thought that the High Court might use the case to reverse the controversial holding in Roe that purported to discern a constitutionally protected "right" to an abortion. The Bush Administration, in its amicus brief, had sought such a reversal. In the end the court, with the concurrence of O'Connor, Kennedy and Souter, upheld most, though not all, of the limitations enacted by Pennsylvania. Yet, far from overturning Roe, the three Reagan-bush appointees went out of their way to reaffirm what they termed Roe's "central holding": that the availability of abortion prior to "viability" of the fetus - i.e., the point when the unborn child is capable of living outside the mother's womb-is a right grounded in the Constitution. In conjunction with the even stronger pro-abortion position of the court's long-time zealots for abortion-on-demand - Justices Harry Blackmun, who wrote the 1973 opinion in Roe, and John Paul Stevens - the effect of the plurality opinion was to reaffirm the notion of a constitutional "right" to an abortion, despite the absence of any credible evidence for such a finding. As Justice Antonin Scalia noted in a scathing dissenting opinion that was joined by Chief Justice William Rehnquist, Justice Byron White, and the most recent addition to the court, Clarence Thomas, it is obvious that abortion is not a constitutionally protected "liberty" for the same reason that it's obvious "that bigamy is not constitutionally protected - because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." Indeed, as Chief Justice William Rehnquist explained, the historical traditions of the American people in no way support the view that the right to terminate one's pregnancy is "fundamental." On the contrary, wrote Rehnquist, "The common law which we inherited from England made abortion after 'quickening' an offense. "At the time of the adoption of the 14th Amendment [cited by O'Connor-Kennedy-Souter as the locus of the constitutional abortion "right"], statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then 37 states and eight territories had statutes banning or limiting abortion. by the turn of the century virtually every state had a law prohibiting or restricting abortion on its books." By the middle of the current century, the chief justice continued, "a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the states prohibited abortion unless necessary to preserve the life or health of the mother. "On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as 'fundamental' under the Due Process Clause of the 14th Amendment." As in Roe, then, the "right" to abortion elaborated in Planned Parenthood v. Casey had nothing to do with the Constitution. It was a judge-made law, pure and simple. Illegitimate in any case, a judicial power grab of this kind is particularly disgraceful coming from justices heretofore known as judicial conservatives or moderates. Most shocking about this court decision was the role of Justice Kennedy. When nominated by President Reagan in 1987, following the defeat of the Robert Bork nomination, then-Judge Kennedy of the Appeals Court for the 9th Circuit brought with him a record of well-enunciated respect for judicial restraint. As a justice of the High Court, Kennedy not only continued to burnish that record in general, but, on the specific issue of abortion, he joined just three years ago in a plurality opinion in Webster v. Reproductive Health Services that would have directly overturned Roe, saying that there was no more right to terminate a pregnancy than to engage in any other action not specifically protected by the Constitution. Whether legally or philosophically, there is no way to square the position taken by Kennedy last week with his position in Webster. The judicial unrestraint in Casey represents a shift so abrupt that it is hard to view it as less than a betrayal of principle. Though O'Connor had always been regarded as somewhat less faithful to judicial conservatism than Kennedy, her position in Casey also represented a reversal of some of her past pronouncements on abortion and a pronounced step toward unabashed judicial activism. As the New York Times reported last week, "In her early opinions, Justice O'Connor proposed replacing Roe v. Wade with an 'undue burden' test that would have allowed more restrictions than the test she, Justice Kennedy and Justice Souter adopted today. "Because she had initially referred to the state's interest in the life of the fetus as 'compelling, it had not been at all clear whether her original 'undue burden' test would find it unconstitutional for a state to ban abortion"- something a state explicitly cannot do under the opinion co-authored by O'Connor in Casey. Souter, of course, was a pig in a poke from the outset, having brought to his confirmation hearings virtually no "paper trail" and little more than an endorsement by the moderate, pro-abortion Sen. Warren Rudman (R.-N.H.). But Souter's current disposition, along with that of O'Connor and Kennedy, seems all too clear. Together, the three justices have sent a loud signal that, in cooperation with the court's liberals, Blackmun and Stevens, they intend to forge a new direction for the court that is far less judicially conservative than had been expected. For those who were paying attention, a warning shot came even before Casey when, by the same 5-to-4 majority, the court on June 24 banned the use of prayers at public-school graduation ceremonies- a practice that has been as ubiquitous a part of American tradition since the time of the Founding Fathers as legal abortion conspicuously has not been. As if to turn the knife after first sticking it into those who revere the tradition of judicial restraint, the three justices not only jointly authored the plurality opinion, which is unusual, but the read their decision from the bench for dramatic effect. Their clear goal was to emphasize that, no matter that millions of Americans resent the hijacking of the Constitution represented by Roe, the controversial decision is still going to be, for the foreseeable future, the unrepealable law of the land. It was a thoroughly disgusting performance. As both Chief Justice Rehnquist and Justice Scalia observed, Justices O'Connor, Kennedy, and Souter could not even bring themselves "to say that Roe was correct as an original matter." Instead, they said that what was important "is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding." So instead of arguing that Roe was correctly decided, the unholy trio devoted many pages to a discussion of stare decisis, the legal doctrine that states that, when possible, the court should "abide by, or adhere to, decided cases." Yet, noted Rehnquist and Scalia, the plurality decision's discussion of stare decisis was actually bogus since Kennedy et al. did not actually uphold Roe and related cases in their original form but imposed their own new version of what Roe should mean. While acknowledging that they may not have supported Roe had they been on the court in 1973, the three justices argued that people have come to rely on the Roe precedent, that "people have organized intimate relationships and made choices that define their views of themselves and their places in society" based on the availability of abortion, and that it would be disruptive to reverse the decision now, even if it was wrongly decided in the first place. The plurality gave as still another reason for not overturning Roe that to "overrule under fire... would subvert the court's legitimacy." In short, they did not want to be seen as bowing to pressure from right-to-life activists who have demonstrated against a decision that they are convinced was wrongly decided. But this was silly on its face. For one thing, the justices do not seem to mind that Roe v. Wade might be seen as having catered to the demands of those who favor abortion-on-demand. The Chief Justice pointed to the obvious when he noted that the court has been subjected to "political pressure" from both sides of the abortion issue. Moreover, as Justice Scalia wrote, for a court majority that says it can make up the law as it goes along, "unrestrained by meaningful text or tradition," to then state that the court "must adhere to a decision for as long as the decision faces 'great opposition' and the court is 'under fire' acquires a character of almost czarist arrogance. "We are offended by these marchers who descend upon us, every year on the anniversary of Roe to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people...must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change-to show how little they intimidate us." As still another excuse for refusing to overturn Roe whether or not it was correctly decided initially, the three justices wrote that, when the court has decided a case "in such a way as to resolve the sort of intensely divisive controversy reflected in Roe," the court should stand its ground and tell both sides to acquiesce in the court's decision. But this description of what the court had achieved in handing down Roe suggests that the three justices have lost their grip on social reality. Far from "resolving" a controversy, the court's Roe edict took what was a relatively mild dispute in some of the states and fanned it to a new level of intensity nationwide. In words that remind us of the value of our heritage of federalism and states' rights, Scalia noted: "Not only did Roe not, as the court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. "Profound disagreement existed among our citizens over the issue-as it does over other issues, such as the death penalty-but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each state was not as closely balanced as it was among the population of the nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was not possible." But, said Scalia, "Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act... "Many favor all of those developments," said Scalia, "and it is not for me to say that they are wrong. But to portray Roe as the statesmanlike 'settlement' of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian." That justices appointed by Reagan and Bush have turned their back on restraint and apparently set the stage for the court to undertake a new round of the judicial activism that conservatives had thought a thing of the past is a profound disappointment. Have the Supreme Court appointments of Reagan and Bush been for naught? many wonder. Such frustration is understandable, but there have been some gains. Thus, even while maintaining that there is a constitutional right to abortion, last week's court decision allowed some state limits on abortion that had not been allowed before. Most importantly, the Casey decision did newly specify that states can ban abortion except to save the life or health of the mother once an unborn child has reached "viability," which had not been allowed under some past court rulings. The court also allowed Pennsylvania to require parental notification before a minor can get an abortion and upheld the state requirement of a 24-hour waiting period after giving informed consent to a physician. (On the other hand, the court disallowed a provision requiring wives to inform their husbands before aborting a baby that was also his child.) Probably the best grounds for hope at this stage, however, is that, for all of the disappointment of last week's decision, the court fell only one vote short of overturning Roe ad of upholding school prayer, which means that further changes in the composition of the court may yet make a reversal possible. It should be remembered, moreover, that other Reagan and Bush nominees have not disappointed but, indeed, form the hard core of the court's current conservative bloc. President Bush, who is in trouble with conservative groups, may be able to regain some conservative support by pledging, if reelected, to redouble his commitment to choosing only judges who will interpret and not make the law. Last week's betrayal shows how difficult such a quest is, but it is clearly not impossible. As constitutional scholar Bruce Fein points out, the key lesson that should come out of last week's decision is that, in nominating new judges, it is not enough to select candidates who have judicially conservative instincts; they must have judicially conservative convictions.