Why the Supreme Court Really Killed Roe v. Wade

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Once, conservatives warned of judicial activism. This critique gained currency in the 1960s when Earl Warren was chief justice and the Supreme Court was reading the open-textured provisions of the Constitution that promise things like liberty and equal protection to establish new procedural protections for criminal defendants and enforcing desegregation orders. When some Republican appointees joined Democratic counterparts to expand those rights, conservative activists insisted that judges were out of touch with the American people. Progressives, in turn, sought to justify the Warren court’s legal creativity by insisting that guarantees of equality and liberty were as important to a functioning democracy as majority rule.

Now, as the right has become more dependent on judges to entrench favorable policies and create obstacles to reform, conservatives have looked to close the distance between movements and the courts.

This shift has taken decades. Leaders of the conservative legal movement weren’t very interested in abortion at first, and the anti-abortion movement had struggled to influence them. In the 1980s, the early Federalist Society included lawyers with a variety of views on abortion and had sought to play down an issue that seemed unnecessarily divisive.

Furthermore, in the academy, conservative thinkers wanted to focus on methods, seeking to develop a version of constitutional originalism or textualism that might pass for a legitimate judicial approach rather than just window dressing for conservative outcomes. Anti-abortion activists, known for expansive claims about a constitutional right to life, rowdy rallies and even law-breaking blockades, did not seem to be the kind of allies that the Federalist Society needed. In the 1980s and 1990s, anti-abortion lawyers worked to cement their ties with the GOP and the conservative legal movement by stressing textualist arguments popularized by heroes of the Federalist Society like Robert Bork and Antonin Scalia: Roe had no basis in the Constitution’s text or history.

But soon abortion opponents realized a judge’s party affiliation was inadequate to guarantee success for their cause. In Casey, which was decided in 1992, three Republican appointees — David Souter, Sandra Day O’Connor and Anthony Kennedy — wrote a joint opinion preserving what the court called the essence of Roe.

Casey prompted anti-abortion activists to refine what they wanted in nominations to the federal bench. Simply relying on Republicans to identify the usual partisan judges had failed. Thomas struck many as an example of the ideal jurist. By the time of his confirmation, Thomas was not only a beloved figure in the conservative legal movement, he also routinely denounced legal abortion, which he considered to be no different from infanticide. Conservative PACs bankrolled pro-Thomas ads lambasting Democrats who had been critical of the nomination.

Thomas’ defiant response to the sexual harassment accusations raised by Anita Hill — he described the scrutiny as a “high-tech lynching” — struck anti-abortion leaders as important, too. It was a proxy for Thomas’ ideological commitment to conservative causes and his refusal to back down. He modeled a suspicion of institutions and a distrust of elites that anti-abortion activists shared. For activists, the question became how to identify or cultivate more judges like Thomas — ideologically committed and willing to buck both legal orthodoxy and popular politics.

Abortion opponents gained an ally in Leonard Leo, an attorney who had helped Thomas during his 1991 confirmation hearings. By 2001, Leo had become the head of the Federalist Society’s lawyers’ division, was profoundly opposed to legal abortion and wanted to dethrone the American Bar Association from its traditional role rating judicial nominees — which activists saw, as Leo put it, as rejecting conservative judges “on ideological grounds.” In building new networks between movements and judges, and devising more sure-fire selection methods, Leo became both a patron and an entrepreneur.

Following the election of George W. Bush, Leo joined three other men in a group that called itself the Four Horsemen; the group included not only Republican legal veterans like C. Boyden Gray and Edwin Meese III but also prominent Christian conservative Jay Sekulow of the American Center for Law and Justice. Leo, who had long worked as a Republican Party liaison with Catholics, helped steer John Roberts’ Supreme Court nomination through the Senate.

Sandra Day O’Connor’s 2005 retirement led to an inflection point in constitutional politics. Leo initially tried to tamp down conservative anger about the selection of Harriet Miers, a close confidante of the president who had served as Bush’s White House counsel. But anti-abortion activists feared that Miers would turn out to be just another partisan judge or preservationist who might uphold the precedent of Roe.

Social conservatives insisted on a nominee who resembled Thomas — someone with a more clearly defined jurisprudential approach and ideological bent with the fortitude to withstand to public criticism. When Miers stepped aside, Bush selected Alito, a very different kind of nominee. Alito rarely missed the chance to tell people about his deep conservative beliefs or his admiration for conservative icon William F. Buckley Jr. Conservative movement leaders regarded Alito as a safer bet — someone expected to disregard the kind of backlash that might follow the reversal of a decision like Roe v. Wade. As a judge, he frequently gave speeches before Christian organizations that reinforced a sense of shared purpose.

Leo, meanwhile, went on to gain further influence, helping choose the three Trump Supreme Court picks who would ultimately overturn Roe. The money has also flowed: He obtained a $1.6 billion donation last year from a wealthy conservative businessman named Barre Seid for his legal network, likely the largest political gift in American history.

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