Conservative Historian

A Brief History of the United States Supreme Court - Part IV: Judicial Activism and the Road to Roe

August 07, 2022
Conservative Historian
A Brief History of the United States Supreme Court - Part IV: Judicial Activism and the Road to Roe
Show Notes Transcript

The landmark Roe V. Wade decision in the early 1970s did not come fully formed.  We explore the road to Roe and the judicial activism that made it possible.  

A Brief History of the Supreme Court - Part IV: Judicial Activism and the Road to Roe


August 2022


The election of Grover Cleveland in 1892 represented the high point of business and the low point of government intervention in this nation. At that point, the United States already had the world’s largest economy. It was number one in oil production and steel manufacturing, and New York was challenging London as the center of world finance. Cleveland famously stated that the role of the government was to serve the American people, “Though the people support the government, the government should not support the people. Then came the Panic of 1893 and the mid-term election of 1894, accompanied by the March on Washington. Not only were the pro-business Bourbon Democrats destroyed, but so was the concept of small government.  


Three powerful bursts of governmental growth and intervention were in the subsequent years. 

The first was under Woodrow Wilson, the second under FDR and his New Deal, and the third, and hopefully, the final great burst came with the advent of the Great Society. Unlike the New Deal, which failed in its aim but was saved by World War II, the Great Society’s failures were seen not generations later but merely a few years afterward. In all three of these progressive spewings, the legislature in the form of Congress was on hand to do the work.  


In the 1912 and 1913 United States Senate elections, Democrats gained control of the Senate from the Republicans. Of the 32 seats, 17 were won by Democrats, thereby gaining four seats from the Republicans. Two seats were unfilled by state legislators who failed to elect a new senator on time. They were the last Senate elections held before ratifying the 17th Amendment, which established direct elections for all seats in the Senate.


These elections coincided with Democrat Woodrow Wilson’s victory in the presidential election amid a divide in the Republican Party. In the Senate, Joseph M. Dixon and Miles Poindexter defected from the Republican Party and joined Theodore Roosevelt’s new Progressive Party. Dixon, however, lost his seat during this election.


This was the first time in 20 years that the Democrats won a majority in the Senate. The New Deal Congresses were even more lopsided. 

In 1932, The Democratic Party won 310 seats in the House of Representatives, as opposed to 117 for the Republicans and 5 for minority parties. The Senate vote gave the Democrats a clear majority—sixty Democratic seats to thirty-five Republicans and one Farmer-Laborite. In Roosevelt’s second campaign in 1936, Roosevelt’s Democratic Party gained twelve net seats from the Republican Party, bringing them above a three-fourths majority. This was the largest majority since Reconstruction. The last time a party won so decisively was in 1866. 

Significant representation from the Progressives of Wisconsin and Farmer-Labor Party of Minnesota is also seen, as these two liberal populist groups gained a foothold.  


As for the Senate, we have seen only 60 seats awarded to a single party in 2008 in a generation. 


In 1964, Lyndon Johnson’s landslide yielded similar numbers. His Democratic Party picked up two seats from the Republicans, bringing their total to 66. As of 2022, this was the last time either party has had a two-thirds majority in the Senate, which would have hypothetically allowed the Senate Democrats to override a veto, propose constitutional amendments, convict and expel certain officials, or invoke cloture without any votes from Senate Republicans. In practice, however, internal divisions effectively prevented the Democrats from doing so. The Senate election coincided with Democratic gains in the House in the same year.


As noted, no party, but especially Democrats, favoring big legislative goals, were to see these kinds of numbers. In 1968, the Republicans picked up five net seats in the Senate just four years later. Republicans would gain another seat after the election when Alaska Republican Ted Stevens was appointed to replace Democrat Bob Bartlett. Same with the House, where the Dems lost five seats but retained their majority.  


This is not to say that there were no incremental gains. Carter created the Education Department, and Obama the Affordable Care Act. And even the Republicans, supposed conservatives, joined in with Nixon’s EPA and Bush’s No Child Left Behind. But for a progressive thirsting for the glory days (they call in the Green New Deal for a reason), incremental is simply not good enough. From 1968 Until Barack Obama in 2008, Democrats were to lose 7 out of 10 elections for the White House. So no would be Wilson’s or FDRs from that bunch. Sure, Obama, but he only had two years of legislative power, and even the ACA was a very near thing, including the near outright bribes to Senators from Louisiana and Nebraska to get even that much done. 


For the progressive, what to do, what to do. Wait a sec, they thought after 1968, we have a liberal majority on the Supreme Court, so let’s trot that out, baby!


When we left off our last podcast, we had included the Brown V Board of education. From this high point, the Court, over the next 20 years, dived a constitutional perspective, a disturbing turn to the left. 


We also covered Franklin Delano Roosevelt’s court-packing scheme. But after threatening the Court to get his National Labor Relations Act and Social Security through, Roosevelt not only got his two biggest triumphs but, after 1937, appointed seven of the justices, six of which were still serving in 1954. And one of these, William Douglas, the latter still on the Court during Roe.  


Felix Frankfurter (1939-1962) Roosevelt

Hugo Black (1937-1971) Roosevelt

Stanley F. Reed (1938-1957) Roosevelt

William O. Douglas (1939-1975) Roosevelt

Robert H. Jackson (1941-1954) Roosevelt

Harold H. Burton (1945-1958) Roosevelt

Tom C. Clark (1949-1967) Truman

Sherman Minton (1949-1956) Truman

Chief Justice Earl Warren (1953-1969) Eisenhower


It was the nucleus of this Court, flush with the Brown victory, then put the concept of judicial activism at the center of the Court. Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider the broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. Judicial activism was not only kept in check but the likes of Felix Frankfurter, a noted judicial restraint advocate, but by the fact that the legislative bodies in the 1950s and especially in the middle of the 1960s were highly active. But with the loss of massive legislative powers, activists, especially those on the left, began looking to the Supreme Court to make a difference. 

The Warren Court showed them the way culminating in the Burger Court and Roe V Wade. 


Writing for the Maryland Judicial Review in 1987, former United States solicitor general Archibald Cox has this view on judicial activism. 

“One extreme view the Court as a political body actually and properly engaged in pursuing policy goals, even though somewhat limited by jurisdictional rules and the tradition of cloaking judicial policymaking in the legal profession. This is often described as an “activist” view of the judicial function. It can be said to “politicize” the process of constitutional interpretation. Especially noteworthy is that the judicial activists are not limited to political liberals. The strong political conservative may also be a strong judicial activist. The mark of the extreme judicial activist is the belief that law is only policy’ and that the judge should concentrate on building a good and just society according to the judge’s vision.”


Of that original group, Frankfurter was a key advocate of judicial restraint and put a sort of break on the Warren Court. Still, with his retirement and the appointment of William Brennan, a leading liberal jurist, in 1956, the Court took an apparent turn towards Judicial activism. 


Except for the desegregation decisions, though, few decisions were unanimous. The eminent scholar Justice John Marshall Harlan II took Frankfurter’s place as the Court’s self-constraint spokesman, often joined by Potter Stewart and Byron R. White. But with the appointment of Thurgood Marshall, the first black justice (the first non-white justice), and Abe Fortas, Warren could count on six votes in most cases. 


Some decisions, such as Gideon v. Wainwright (right to counsel) and Miranda v. Arizona (criminal procedure), were necessary to curb the state’s power. But it was not the laws but the nature upon which the Warren court increasingly ruled. In their book Democracy and Equality, historians Geoffrey R. Stone and David A. Strauss illuminate this thinking. “Ordinarily, the people’s elected representatives should make the important political decisions in a democracy. But, if the courts are to step in, they must have a reason why a particular issue should not be left to ordinary democratic processes.”


In one case, as we saw with the previous podcast, Brown v. Board of Education, the decision was tied to the 14th Amendment, a law passed by and within the democratic processes. But Stone and Strauss are saying that when the nine justices (or five of them) feel that something must be done, and the democratic processes are not doing that, SCOTUS is obligated to step in. I’m afraid that’s not right. It leaves the interpretation of societal ills that need revisions up to the opinions of five justices. It not only untethers SCOTUS from the elected bodies but untethers it from the law. I have made this very argument that in Plessy V. Ferguson, seven justices ruled not on the law but the biases existing then in the United States and within the opinions of the justices, untethering the 14th Amendment.  

This became apparent in Griswold. Griswold v. Connecticut (1965) was the Warren Court affirmation of a constitutionally protected right of privacy emanating from the Due Process Clause of the Fourteenth Amendment, also known as substantive due process. After Warren’s retirement, this decision was fundamental for the outcome of Roe v. Wade and the consequent legalization of abortion.


In 1879, Connecticut passed a law that banned the use of any drug, medical device, or another instrument in furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control clinic in New Haven in conjunction with Estelle Griswold. The latter was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law, and higher state courts affirmed their convictions. They planned to use the clinic to challenge the statute’s constitutionality under the Fourteenth Amendment before the Supreme Court. Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?


The argument is the presence of a right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal. In a 7-2 decision authored by William O. Douglas, the Court ruled that the Constitution did protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments generate the right to privacy in marital relations, or so Douglas, and here is that word again, inferred. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void. 


But was there an inherent right of privacy written into the Constitution? Writing for National Review in 2019, Declan Leary writes of Griswold, “Pro-choice writer Asha Dahya warned: “When they scream ‘Roe,’ they whisper ‘Griswold.’ Let’s hope so. Griswold v. Connecticut is among the most indefensible bits of jurisprudential acrobatics in the entire American legal tradition. And a good portion of the other rulings that could challenge it for that dishonor are those later decisions — Roe v. Wade is the prime example — that cite the supposed “right to privacy” that the Court invented out of thin air to justify its ruling in Griswold


In his dissenting opinion to Griswold, Justice Hugo Black observed, “The Court talks about a constitutional ‘right of privacy as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” To claim that there was, the majority, led by Justice William O. Douglas, employed a highly questionable method of jurisprudence known as “penumbral reasoning.” Named after the half-darkened fringe at the edge of a shadow (the penumbra), this tactic attempts to discover other rights supposedly implied by those few enumerated in the Constitution. From there, it claims that these “penumbral” rights are, by extension, constitutionally enshrined. Thus, a right to privacy is supposedly deduced from explicitly protected rights such as due process, free speech, and freedom from self-incrimination. There is no end to what a court might be able to rationalize using this strategy. And (as Justice Black realized) there is no clear and consistent standard by which the rights thus constructed could be applied without corroding the rule of law.”


Hey, the right to privacy sounds good. As a conservative with libertarian leanings, I want privacy from my neighbors and my government. The problem is that this “right” can be twisted into several different meanings. 

As noted by writers Robert P George and David Tubbs, writing in the Catholic Education Resource Center, “No one doubts that there are true privacy rights in the Constitution, especially in the Fourth Amendment, which protects against unreasonable searches and seizures and ensures that warrants issue only upon a showing of probable cause that a crime has been committed. (Indeed, these rights prevented any aggressive enforcement of the laws struck down in Griswold.) But the justices in Griswold produced a non-text-based and generalized right. Privacy functioned as a euphemism for immunity from those public-morals laws deemed by the justices to reflect benighted moral views.


To Justices Black and Stewart, the right to privacy cloaked a naked policy preference. As a result, justices in the majority were, without constitutional warrant, substituting their judgments for those of the elected representatives in Connecticut. This, according to jurists across the political spectrum, is precisely what had brought shame on the Court during the Lochner era, from roughly 1890 to 1937, when in the name of unwritten liberty of contract, the justices invalidated state social welfare and worker-protection laws. But the crucial distinction underscored by Black and Stewart between the desirability or justice of a policy and the states constitutional authority to enact it lost much of its currency as the right to privacy expanded.”


One of the bases for Roe was the right to privacy. The application of such a right in Roe v. Wade, in which the Court somehow determined that the fictitious right to privacy enables a woman to procure an abortion and that any attempt by the government to protect the life of a preborn child must be weighed against that right.


In addition to the penumbral rights, the Court discussed due process. “Erwin Chemerinsky has described the substantive due process as “the question of whether the government’s deprivation of a person’s life, liberty, or property is justified by a sufficient purpose.” According to substantive due process, the Court can overturn a law based not only on the propriety of the process by which it was passed (procedural due process) but even on a claim that the law — no matter the textual or procedural validity of its institution — infringes on some right the Court perceives to be fundamental. 


Note the Court says it is fundamental, not the direct language of the Constitution or existing law. Claims of substantive due process have been employed in some of the Supreme Court’s most controversial rulings — most notably, Dred Scott.” And it was based on Due Process that Roe came into being.  

Roe is the biggest result of these rulings, but by the penumbral standard, rights can be whatever five justices determine them.  


And now Roe.  


In 1969 Earl Warren retired and was succeeded as Chief Justice by Warren Burger. In 1972, the Court was now made up of William O Douglas (nominated by FDR and considered one of the most liberal justices ever), Potter Stewart (Eisenhower), William Brennan (also highly liberal and appointed by Eisenhower and Justice Antonin Scalia called him one of the most influential justices in the 20th century – not necessarily a compliment), Thurgood Marshall (Johnson), Lewis Powell (Nominated by Richard Nixon), Burger (Nixon), and Harry Blackmun (another Nixon appointee, who wrote the Roe opinion.  

The two who dissented on Roe were Byron White (nominated by John F Kennedy) and William Rehnquist (also nominated by Nixon).


I list out the nominating presidents to note that in that era, justices were not presumed to vote in lockstep with the political parties upon which the presidents were members. For example, consider that of the seven concurring Roe votes, Nixon nominated three and Eisenhower two. 

This is not chicken and egg.   But that is for the next podcast. 


And before we proceed a few words on Brennan, Patricia Brennan Washington Post Staff Writer writing Brennan in 1996, noted, “Brennan also believed that the meaning of the Constitution is to be found in the current day, not in the intent of its 18th-century creators, as his colleague Antonin Scalia believes.” 


Roe v. Wade (1973) was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and state abortion laws.  


The case was brought by Norma McCorvey—known by the legal pseudonym “Jane Roe”—who, in 1969, became pregnant with her third child. McCorvey wanted an abortion, but she lived in Texas, where abortion was illegal, except when necessary to save the mother’s life. And this is another of those lies spread by pro-abortion activists. All 50 states have laws, ectopic laws, that protect the life of the mother. Her attorneys, Sarah Weddington and Linda Coffee filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas’s abortion laws were unconstitutional. A special three-judge court of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor. The parties appealed this ruling to the Supreme Court.


On January 22, 1973, the Supreme Court issued a 7–2 decision holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental “right to privacy,” which protects a pregnant woman’s right to an abortion. However, the Court also held that the right to abortion is not absolute and must be balanced against the government’s interests in protecting women’s health and prenatal life. The Court resolved these competing interests by announcing a pregnancy trimester timetable to govern all abortion regulations in the United States. The Court also classified the right to abortion as “fundamental,” which required courts to evaluate challenged abortion laws under the “strict scrutiny” standard, the most stringent level of judicial review in the United States.


Blackmun wrote, “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”


It is worth going back to the 14th Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” But, of course, there is no mention of pregnancy termination in these words. 

Instead, the justices took the concept and decided to extend it to all kinds of privileges.  


Of the critical and continuously unresolved question of when life begins, the Court punted, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology cannot arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” And, of course, they did. Making a statement that life begins at any point before actual birth would negate the STATED life provision within the same 14th Amendment used to justify Roe.  

Surprisingly, Roe was not the instant lightning rod of the recent Dobbs v Jackson decision overturning Roe; it wasn’t until seven years after its passage, with the Reagan administration, that the decision became a rallying cry for conservatives who made it a long-term aspiration to reshape the courts with judges and justices who would reject Roe-era thinking.


But the criticism of the ruling itself was more widespread than current pro-abortion advocates would have us believe. Virtually every recognized constitutional scholar who has published a book or article on Roe – including many, like Harvard’s Laurence Tribe, supports Roe’s outcome on other grounds (although he’s switched grounds over the years).5 Yale Law School professor John Hart Ely spoke for many when he stated: Roe v. Wade “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” 


Writing on the Secular Humanism blog, Tom Flynn notes that Roe v. Wade settled the abortion battles of the 1960s and 1970s in an unstable and ultimately undesirable way: by [judicial] fiat. Enforcing a pre-emptive victory for those in favor of abortion rights brought the grass-roots debate about the subject to a premature end. The critical questions, such as “When does a fetus become a human person?” were never really thrashed out. So we arrive at today’s situation, where abortion rights exist only by court order because advocates never got the chance to build a broad-based constituency for them.


But don’t take my word for it. Here’s the late, much-lamented lioness of the High Court, Ruth Bader Ginsburg, in a 1992 lecture: Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”


It’s often forgotten how friendly the legal and cultural climates were toward abortion rights in the early 1970s (Roe was decided in 1973). I summarized it thusly thirty-one years ago: When we look back at the years before Roe, it is clear that a movement to build a true national consensus favorable to abortion on demand was gaining momentum. Sixteen states had already liberalized their abortion statutes in the years before Roe. Many adopted the ALI Model Penal Code, which drew on New York State’s pioneering reform legislation. In addition, between 1967 and 1970, the American Medical Association (AMA) reversed itself on abortion: In 1967, the AMA’s Committee on Human Reproduction advocated adopting a strict anti-abortion policy. Yet, by 1970, the climate had changed to the point where the entire AMA adopted abortion guidelines that were strongly pro-choice.


But that was then. Now, after decades of religious-Right activism carried out in the shadows of Roe, that choice between moral options of roughly equivalent weight has given way to a lopsided faceoff between conservatives’ insistence that abortion is murder and liberals’ far gauzier assertion of the “right to choose.” This profoundly disadvantaged abortion-rights advocate. 


And the final word, from a court clerk to Blackmun himself. Edward Lazarus, writes:


Regarding constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. . . . .


What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. ...

The proof of Roe’s failings comes not from the writings of those unsympathetic to women’s rights but from the decision itself and the friends who have tried to sustain it. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.


I do not think an unrestrained abortion regime, including the harassment of pro-pregnancy centers, is a good policy. But as I have stated in other formats and venues. Roe was not overturned because it was bad or good policy, but because it was simply bad law. 

It was the culmination of a court that, beginning with good things in the 1950s and 1960s, began to do bad things in the 1970s to become the legislature for the entire nation.