The recent death of Sandra Day O’Connor recalls the seemingly lost art of consensus-building. As the many appreciations appropriately noted, she was the first woman to serve on the U.S. Supreme Court and the last justice to hold elective office.
O’Connor was Ronald Reagan’s initial high court pick. Later judicial selections by Reagan and his successor, George H.W. Bush, created an expectation the court would overrule Roe v. Wade.
The decision legalizing abortion was then less that two decades old when O’Connor wrote the 1992 majority opinion in Casey v. Planned Parenthood that instead upheld abortion rights.
Conservatives were outraged that one of Bush’s court picks, David Souter of New Hampshire, concurred. Bush’s second and final selection was Clarence Thomas, almost opposite Souter in jurisprudence and temperament.
But the Casey decision stood the test of time, or so we thought. Its crucial provision scrapped the awkward “trimester” system Roe created and substituted a better judicial standard — that laws couldn’t place “an undue burden” on women seeking abortions.
O’Connor personally opposed abortion, but her experience as Arizona Senate majority leader convinced her that imposing one’s beliefs on a citizenry that, with reservations, supports abortion rights wouldn’t work.
A new wave of politically charged appointments, exacerbated by Donald Trump, who vowed only to appoint justices opposed to abortion, brought us the Dobbs decision in 2022. Justice Samuel Alito’s opinion not only overthrew Roe and Casey but destroyed a national consensus.
O’Connor understood, as Alito, Thomas and three Trump appointees evidently did not, that trying to “resolve” profound moral issues by judicial fiat is doomed to fail.
The only comparable Supreme Court decision is 1857’s Dred Scott. Chief Justice Roger Taney tried to “resolve” conflicts over slavery by removing Congress’s authority to restrict it and declaring blacks had “no rights which the white man was bound to respect.”
The Civil War followed, and a less violent but no less consequential revolt against Dobbs is now underway.
Republican legislatures leaped at the opportunity to enact abortion restrictions unrealistically early in pregnancy — 15 days, in a new filing New Hampshire will consider next year.
Yet in every state with abortion on the ballot, right-to-life forces have lost. There’s no reason to think it will be any different in 2024.
This presents particular difficulties for the Republican Party, whose candidates were uniformly “pro-life” when Roe and Casey were still in effect, paying no penalty because their position had no practical effect. Those days are over.
In rethinking the question, they might go back to Roe’s early days, when abortion was by no means partisan. Many elected Republicans were abortion rights supporters; Maine Sen. Susan Collins may be the last.
Back then opposition came principally from the Catholic Church, and most elected Catholics were Democrats.
Prominent figures such as New York Gov. Mario Cuomo and Maine Sen. George Mitchell evolved positions that Justice O’Connor also adopted.
Though personally opposed to abortion — Mitchell wrote many long letters on the subject — they would not impose those views on constituents, a large majority of whom wanted abortion to remain legal, with restrictions.
It was an honorable and defensible position, one today’s Republicans should consider carefully. It doesn’t satisfy those who believe “abortion is murder,” but that conviction is held by only a small minority.
As the issue has become binary, with no sense of compromise or nuance, Democrats have sometimes left consensus behind, too.
The abortion bill Maine’s Legislature passed earlier this year at Gov. Janet Mills behest without meaningful restrictions at any point in pregnancy is an example of legislation going farther than necessary.
Given national tides, the new law is unlikely to cost Democratic candidates in 2024, but it’s an unsettling reminder that extremes are rarely what the public wants.
Supporters of abortion rights might also avoid terms like “abortion care” or formulations like “abortion is health care.” This fails to respect those who believe rights need to be balanced, that they are not unlimited — in this case, most Americans.
Traditionally, presidents chose as Supreme Court nominees both lower court judges and practicing politicians with legal skills.
Abraham Lincoln picked Salmon Chase, his secretary of the Treasury, as chief justice. William Howard Taft was president before he became chief justice.
Recent presidents pick only judges, some of whom are tracked for advancement almost as soon as they graduate from law school.
The earlier system, though not without its pitfalls, was better. Judges need to understand the real-life consequences of their decisions, not just the legal doctrines they may have adopted as guides.
Had the current court included justices with those experiences, Dobbs might never have been handed down.
Send questions/comments to the editors.
