Monday, April 26, 2010
Linda Greenhouse's Justice John Paul Stevens as Abortion-Rights Strategist is a terrific article in the latest issue of the UC Davis Law Review's excellent symposium on soon-to-be-retired Justice Stevens. Greenhouse seeks "to give Justice Stevens his due as a major contributor to the contours of the right to abortion that exists today. Indeed, he has served as an indispensable strategist in the preservation of that right at its moment of greatest need." She notes that her supporting evidence is "hiding in plain sight in the pages of the United States Reports." But, for the "backstory to the cases in which Justice Stevens participated," she relies on the collected papers of Justice Harry A. Blackmun in the Library of Congress. Greenhouse is certainly an expert in Blackmun's papers, using them extensively in her biography Becoming Justice Blackmun. Here, her impressive reportorial skills and her incisive analytic skills combine to produce engaging scholarship.
For example, Greenhouse discusses Webster v. Reproductive Health Services., 492 U.S. 490 (1989), considering the statutory preamble that “life of each human being begins at conception.” Chief Justice Rehnquist's plurality opinion said this statement was without operative force, simply a “value judgment” that the state could make without a need for judicial scrutiny:
Justice Stevens saw the matter otherwise: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution,” he wrote in his separate opinion, concurring in part and dissenting in part.
Stevens was “deeply concerned about the future of the right to abortion. He sent an acerbic response to Chief Justice Rehnquist upon receiving his draft majority opinion (which did not turn out to be a majority opinion because Justice O'Connor, adopting a more cautious stance, declined to join it). Chief Justice Rehnquist did not explicitly call for overruling Roe. Rather, he wanted to replace the strict scrutiny analysis of Roe with a new standard under which a regulation would be upheld if it “reasonably furthers the state's interest in protecting potential human life.”
“A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test,” Justice Stevens objected in a letter to Chief Justice Rehnquist, with copies to the other Justices. The letter ended: “As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”
How Roe v. Wade will be tossed about in future years depends, in part, on the Justice who will take Stevens' place. Greenhouse reminds us that Stevens was the first Justice to be appointed after Roe v. Wade was decided. Stevens was also the last of his kind: "the last Republican-appointed Supreme Court Justice who was not vetted in light of the party's official opposition to Roe" and the last Justice to join the Court "before abortion became an essentially partisan issue."