When Vice President Kamala Harris told Meet the Press host Chuck Todd recently that the Supreme Courts June decision overturning Roe v. Wade was done by an activist court, she was in a limited sense right, but in a wider sense wrong.
The Supreme Court first convened in 1789. For the next 184 years, until the Roe v. Wade decision on Jan. 22, 1973, there was no constitutional provision for abortion, nor, of course, any stare decisis (meaning stand by things decided) precedent supporting so-called abortion rights. In fact, the 1973 Burger court, presided over by Chief Justice Warren Burger, was the activist court, findingor rather creatinga right to abortion and to privacy that previous high courts had not managed to find for 184 years.
In those 184 years, 99 justices served on the Supreme Courtand none had declared abortion or privacy a constitutional right.
The doctrine of stare decisis defended abortion for only 49 years, from the time of the Roe decision to June 24, 2022. So, Vice President Harris was accurate about stare decisis for 49 years, but for the prior 184 years, she was wrong.
During these 184 years and 99 justices, abortion was available at the state level by virtue of the 10th Amendment: powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. This past summers decision, written by Associate Justice Samuel Alito, merely restored the status quo antethe situation prior to Roe.
The arguments in support of the constitutional right to abortion that the Burger court used in 1973 are not persuasive. They cited the Fourth Amendment, which focuses on illegal searches and seizures of such things as ones home, car, office, and other possessions. We doubt the framers of the Constitution were thinking about a womans body when they conceived the Fourth Amendment and that abortion would be seen as an illegal search and seizure. But many today want to read it that way.
Defenders of abortion also cite the 14th Amendment, especially the phrase nor shall the state deprive any person of life, liberty, or property. They focus on the word liberty, arguing that liberty permits a womans right to abortion. But one word alone, absent context, is not enough to argue that it defends abortion. The word liberty alone could be used endlessly to support all sorts of activities none of us would condone.
I worked with, or for, Chief Justice Burger for more than nine years until his death. We became close friends and confidants. I even wrote a book about Mr. Burger. He would come to my office in the court, or I to his, virtually every day. Twice I asked him about his vote in Roe v. Wade. Both times he became angry, saying exactly the same thing: I wrote that it was not to be abortion on demand, which, of course, it became. The vote on Roe was 7 to 2, with only William Rehnquist and Byron White dissenting.
The Supreme Courts position on abortion is not likely to change for many years because of the age of current justices. Clarence Thomas is the oldest at 74, and Justice Alito is next at 72.
Soon after Mr. Thomas was confirmed by the Senate, I had a chance to meet with him privately and asked: What are you going to do about Anita Hill? He responded immediately, Stay on the bench for 40 years. He still has eight to go.
Justice Alito did his homework on the full history of the Supreme Court, placing the history of abortion in the full context of the courts history. I believe his analysis of abortion was not personal, social or political, but honest and courageous.
Courage, C.S. Lewis observed, is the most difficult virtue because it is all virtues at the testing point. Justice Alito had the courage to focus on what the Constitution says and does not say.