I have a piece up at Vox debunking the too-clever-by-half theory that Roe has survived because Republican elites have a secret plan to keep it, which is in fact completely ahistorical. The survival of Roe was in fact the product of a hard-fought victory by Democrats, Supreme Court nomination norms that are deader than Earl Warren, and pure luck. The luck just ran out:
Was this what Republican elites wanted all along? There is not, in fact, any reason to believe so. If one looks at the circumstances that brought each of the Casey three to the Court, it’s clear that Casey wasn’t the product of clever scheming by Republicans.
O’Connor was Ronald Reagan’s first Supreme Court nominee because Reagan had promised to nominate the first female Supreme Court justice. While O’Connor had displayed some moderation on abortion as a state legislator in Arizona, she was the most conservative woman who was considered a viable nominee. She wasn’t chosen because of her relative moderation on abortion. (Indeed, had Gerald Ford nominated a woman instead of John Paul Stevens in 1975, it is highly likely that Reagan would have chosen an anti-Roe conservative as his first nominee.)
Kennedywas confirmed to the Court only because a Democratic Senate rejected Reagan’s first choice, Robert Bork, an icon in conservative legal circles whom Republican elites certainly wanted to be confirmed. Bork, who labeled Roe an “unconstitutional decision” in congressional testimony in 1981, unquestionably would have voted to overrule it. Had Reagan nominated another orthodox conservative without Bork’s extensive history of inflammatory public comments in 1987, it is overwhelmingly likely Roe would have been dead in 1990. (His next pick after Bork dropped out, Douglas Ginsburg, was also forced to withdraw amid controversy over his personal conduct, including his admission that he had smoked marijuana several times.)
As for Souter — long the bane of conservatives for being a moderate who got on the Court under a Republican — he was hardly the product of a conscious plan to preserve Roe. As Jan Crawford reported in her book about the Roberts Court, the Souter choice emerged out of odd intra-administration conflicts; most notably, some conservatives in the Department of Justice torpedoed the potential nomination of orthodox conservative Ken Starr because he disagreed with them on an obscure federalism issue. Bush then went to Souter in large measure because two New Hampshirites in his inner circle — Chief of Staff John Sununu and Sen. Warren Rudman — assured him that Souter was a reliable, solid conservative. They were wrong, but Bush certainly wasn’t trying to select a liberal.
It’s worth noting that if Bush had had a secret plan to preserve Roe, he likely would not have nominated Clarence Thomas in 1991, a staunch conservative widely and correctly perceived to be anti-Roe. It’s also worth noting that in 1991, there was nothing in the record of Anthony Kennedy — who joined Rehnquist’s opinion in Webster, not O’Connor’s more moderate concurrence — to suggest he supported upholding Roe. That means that irrespective of Souter’s position on the question, Kennedy voting against Roe, as his Webster vote suggested, would have made Thomas the fifth and decisive vote.
Now, it’s fair to say that during this period, Republican presidents were not single-minded about Roe. But in the years since, abortion has become nothing less than a litmus test. The rise of the Federalist Society, which was founded in 1982 and became steadily more influentialover time, was in large measure to ensure that another accident like Souter didn’t happen.
The fact remains, however, that none of the post-1980 Republican justices were selected for the purpose of preserving Roe. And had Reagan simply gotten his first choice in 1987, Roewould have been dead.
To echo a point Paul made about John Paul Stevens in comments yesterday, it wasn’t even exactly wrong to label Souter — whose hero is the second John Marshall Harlan — a “conservative.” It’s just that 1)the transformation of the Republican Party post-Reagan makes an old-fashioned New England conservative look like Eugene Debs, and 2)Harlan’s style of common-law judging produces very different results after Warren Court precedents have been established than when they’re being created. Anyway, Roberts and Kavanaugh are quintessential post-Reagan Republican operatives; the fact that Souter turned out to be a liberal is about as relevant to how they’ll vote as the fact that Herbert Hoover nominated Benjamin Cardozo.
Also, the “actually Republicans need Roe to run the rubes” line is the kind of punditry that sounds sophisticated at first glance but falls apart if you think about it a little:
To see what Republicans really think about abortion, just look at the two-track strategy of doing as much as possible to limit access to abortion under existing law while teeing up vehicles to get Roe overruled. Ohio is an example of a state that has pursued both approaches. In addition to the “fetal heartbeat” bill that directly challenges Roe, it has also targeted abortion clinics with onerous legal restrictions, with the result that the number of abortion clinics in the state has been reduced from 45 in 1992 to 10 today.
In addition, theidea that Roe being overturned will mean that evangelicals will no longer have the issue to rally around is puzzling. If Roe is overruled, the result would be conflicts over abortion laws in most states as well as Congress. And preserving the movement’s legislative victories would still require maintaining control of the Supreme Court.
Pundits who refuse to believe that Republicans mean what they say and do on abortion are the equivalent of the voters in focus groups who assume you have to be lying when you tell them what Paul Ryan’s agenda is. And of course they can afford to be wrong because it’s not the rights of them or the people they know that are at stake.