Some reflections on the long, and now successful, battle to overturn Roe:
1. I was a law clerk for Justice Scalia when the Court decided Planned Parenthood v. Casey in 1992. That case presented a golden opportunity for the Court to overturn Roe. But Justices O’Connor, Kennedy, and Souter instead combined to produce a joint majority opinion that was breathtaking in its grandiose misunderstanding of the Court’s role and that made me long for the sterile incoherence of Justice Blackmun’s opinion in Roe.
In their deservedly mocked declaration 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,” O’Connor, Kennedy, and Souter were asserting an unconstrained power to define for all Americans which particular interests should be beyond the bounds of citizens to address through legislation. And in their command that the “contending sides of a national controversy … end their national division by accepting a common mandate [supposedly] rooted in the Constitution,” they set forth what Scalia aptly labeled a “Nietzschean vision of us unelected, life tenured judges … leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals.’”
2. When Casey was decided, I doubted very much that Roe would ever be overturned. That doubt intensified a year later, when President Clinton appointed Ruth Bader Ginsburg to replace Justice Byron White, who had dissented both in Roe and Casey. As Senate Judiciary Committee counsel to Senator Orrin Hatch, I saw how unwilling so many Republican senators were to engage in a battle over judicial philosophy generally and over Roe in particular.
3. There are at least two large reasons that the long battle to overturn Roe has succeeded. First, pro-lifers did not heed Casey’s command that they give up on working to defend the lives of unborn human beings, and they remained a powerful political force in the Republican party, all the more so as nearly all Democrats had abandoned the pro-life cause. Second, the conservative legal movement grew and flourished, thanks in large part to the Federalist Society and to Justice Scalia and Justice Thomas. Over time, pro-lifers and the conservative legal movement drove Republican senators to fight for and against judicial nominations on the ground of judicial philosophy.
4. One episode that deserves special mention is President George W. Bush’s nomination of Harriet Miers, his White House counsel, to replace Justice Sandra Day O’Connor in early October 2005. That nomination elicited a firestorm of opposition from the conservative legal movement, which did not perceive Miers to be a conservative judicial stalwart and which did not want to see Bush repeat his father’s error in nominating the unknown David Souter to the Court in 1990. Judicial conservatives were seeking a justice with intellectual heft, the sort of justice who could, say, write a forceful opinion overturning Roe. Weeks later, Bush abandoned the Miers nomination and instead nominated Alito.