In the nearly five decades since Roe, few if any issues have contributed more to polarization, anger, and division in our political process than has the arrogance of a Supreme Court majority declaring that the people had no right to decide the issue of abortion for themselves. As a result of Roe, Supreme Court nominations and confirmations are now gladiatorial battles. Robert Bork’s and Clarence Thomas’s bloody confirmation spectacles were the direct result of the justices’ setting themselves up as arbiters of an issue that otherwise would have been left to the people.
Likewise, the sad carnival attached to the confirmation of Brett Kavanaugh was driven, at its heart, by the Court’s usurpation of power in Roe. Indeed, after Justice Kavanaugh was confirmed, one of the lead lawyers who presented the uncorroborated sexual assault allegations against then-Judge Kavanaugh admitted publicly that savaging the reputation of a Supreme Court nominee thought to be skeptical of Roe is “part of what motivated” her client, Dr. Christine Blasey Ford. As a result, Kavanaugh “will always have an asterisk next to his name,” Dr. Ford’s lawyer said, so that “when he takes a scalpel to Roe v. Wade, we will know who he is, we know his character.”
Following Roe, our nation convulsed and divided into two warring camps: pro-life and pro-choice, although neither uses the terminology preferred by the other. Had the issue remained in the hand of elected legislatures, those warring camps would have had a natural outlet: an avenue to express their views, to make their arguments, to marshal their scientists, to present their evidence. They would have had myriad elections in which to engage, and our country would have reflected a diversity of views. Nobody believes California would choose to enact the same abortion laws that Texas would. Or that New York would enact the same laws as Alabama. Part of the genius of our Constitution’s Framers was establishing a system in which fifty states can enact fifty different standards to reflect the values and policy judgments of their respective citizens. But when nine unelected judges instead decree what is and is not acceptable on a policy as personal and far-reaching as abortion, it produces enormous social division.
Everyone thought Roe was going away thirty years ago. President Ronald Reagan nominated three new justices who were confirmed to the Court. Sandra Day O’Connor was Reagan’s first nominee to the Court, and she became both the first woman nominated and the first woman to serve on the Court. Antonin Scalia was the second Reagan nominee to the Court, and Anthony Kennedy was third. At the same time that Reagan nominated Scalia, he elevated William Rehnquist to be chief justice of the United States. Then, President George Herbert Walker Bush had two more Justices confirmed: David Souter and Clarence Thomas.
In 1992, the case that most observers believed would return the issue of abortion to the elected state legislatures made its way to the Court. In Planned Parenthood v. Casey, Court-watchers, the media, the legal academy, and the political world all counted noses and assumed the votes were finally there to end the Supreme Court’s dominance of abortion issues.
But sadly, when the Court issued its opinion, three of the justices expected by observers to respect the limited role of the Court—a role constrained to the constitutional text—made a different decision instead. Justices Kennedy, O’Connor, and Souter joined together in a rare joint opinion. Typically, a given opinion is authored by a particular justice, and right at the front of the opinion, it will say which justice authored that opinion. Other justices then can choose to join an opinion or not. Or, alternatively, they can write a concurrence (agreeing with the result but for different reasons) or a dissent (disagreeing with the result).
In Casey, the “joint opinion” has no author. Instead, each of the three justices sought to hide behind the others. One portion of Casey is particularly notable, and it has since been acknowledged that it was authored by Justice Kennedy. Justice Kennedy opined that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Pause for a moment to reflect upon what particular expertise lawyers or judges might have about the “meaning of the universe,” or about the “mystery of human life.” If we are resolving existential questions, who in their right mind would choose unelected lawyers in black robes to make those decisions for us? If, on the other hand, we are choosing arbiters to apply statutes or the text of the Constitution, then relying on judges makes good sense.
Casey shocked and astonished observers on both left and right and ushered in even greater anger and division over the question of life. Although it refashioned the legal framework the Court set down in Roe, the core holding of an individual constitutional right to abort an unborn child was upheld.
Shortly after Casey, newly elected Democratic President Bill Clinton stood on the floor of the House of Representatives and expressed a desire that abortion be “safe, legal, and rare.”
That is no longer the Democratic position. In the three decades since, the leadership of the Democratic Party has grown more and more extreme on the question of abortion. Nationally, opinion polls show that roughly 9 percent of Americans support unlimited abortion on-demand up until the moment of birth. And yet, increasingly, that is becoming the uniform position of the Democratic Party. Leading politicians like Bernie Sanders and Democratic National Committee Chairman Tom Perez have expressed, as they both did in 2020, that there is “no place” in the Democratic Party for pro-life Democrats.
In the aftermath of Casey, the views of Americans grew steadily more pro-life while Democratic Party leadership grew more extreme. Pro-life activists began focusing
