By Dave Andrusko
Over the decades since Justice Harry Blackmun unleashed the Roe v. Wade pestilence, periodically you will read stories, occasionally the bulk of entire books, which maintain that Blackmun was essentially a dolt whom other justices had to help reach his abortion-on-demand conclusion.
One of the earlier “inside the court” books was, “The Brethren.” Bob Woodward and Scott Armstrong highlighted Justice William Douglas’s early role (the case that took years to finally get settled) in pushing the High Court in a pro-abortion direction.
Justice William Brennan Jr. is often pointed to as someone who, for example, “manipulated the timid Justice Harry Blackmun in Roe to create an abortion-on-demand regime,” according to Gregory Sullivan.
In reviewing Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel, Sullivan wrote that “Brennan’s role in the case was central.”
As Stern and Wermiel comment: “Brennan felt a strong enough sense of ownership in the Roe and Doe opinions that his clerks included them in the bound volume of his opinions for the term Brennan maintained for his own use. The accompanying note explained that the opinions ‘were substantially revised in response to suggestions made by Justice Brennan.’”
There were other suggested influencers amongst the justices who made up the original Roe court.
But the recent death of Justice John Paul Stevens affording pro-abortion Linda Greenhouse, for many, many years the hugely influential Supreme Court correspondent for the New York Times, the opportunity to write about those justices who came later and who were instrumental in thwarting fundamental challenges to Roe.
“The Invisible Hand of Justice Stevens on Abortion: He was a leading if often unseen strategist who helped protect a woman’s right to choose” ran in the Times on Sunday.
Greenhouse begin writing about Stevens’ “behind-the-scenes” role by first talking about with how admirers had “posted lists of their favorite and not-so-favorite Stevens opinions” shortly after his death.
“Items on these lists, posted on blogs and websites, ranged widely, Greenhouse wrote. “Missing, however, were opinions dealing with abortion.”
It’s a lengthy piece so let just give a brief overlay. As is her wont, Greenhouse likes Justices who “grow” in their pro-abortion commitment, one reason among many she wrote a biography of Justice Blackmun.
She also likes the stealthy way (my description) Stevens emerged “as a leading, if often invisible, strategist who helped keep the right to abortion alive in an increasingly hostile climate at the court.”
Part of that, a big part, is the influence Greenhouse says Stevens had on other justices. “He worked hard, for example, to increase Justice Sandra Day O’Connor’s comfort zone with abortion,” she wrote. O’Connor “had written harshly about Roe v. Wade in the first abortion case she confronted after arriving at the court in 1981.”
But under Stevens’ crafty tutelage, O’Connor took a half-way position on a parental involvement case. “Just two years later in 1992] , hers was one of the five votes that preserved the right to abortion from what was until then its most serious challenge,” Greenhouse concludes with pride.
As evidence of his “growth,” Greenhouse tells us “Justice Stevens himself had no particular affection for Roe v. Wade itself, telling his colleagues in a 1985 memo that he didn’t know how he would have voted had he been on the court in 1973.”
But “[H]is approach started to change as the trickle of new restrictions on abortion became a flood.” And, happily for Greenhouse, “He became a trusted adviser to Justice Blackmun.”
As we have written many times, Blackmun started out a reluctant convert to full-blown abortion-on-demand militancy. (Initially he saw state abortion limitations more as an imposition on doctors than as an abridgment of a woman’s “right” to abortion.) But he moved all the way over to the dark side in rapid fashion.
It was Justices like Stevens whose backroom dealings have kept Roe hanging on by a thread.