The Supreme Court having overturned Roe v. Wade is strange. Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization tries hard to make it seem not strange, with a page-and-a-half footnote of other times the Court has abrogated precedents. But that footnote doesn’t cite any case in which the Court has overruled a long-standing precedent clearly supported by the public.
Alito is eager to draw comparisons to when Brown v. Board of Education overruled the separate-but-equal doctrine of Plessy v. Ferguson. But Gallup found that 55 percent of Americans supported the decision. Before Obergefell v. Hodges—the case that tops Alito’s footnote—established equal marriage rights in 2015, support for same-sex marriage was rapidly rising in polls, crossing the majority threshold about three years before. Scientific polling was in its infancy in 1937 when the Court reversed itself and upheld minimum wage laws, but the year before, President Franklin D. Roosevelt, who had criticized the Court for nullifying such laws, won reelection in a landslide.
But among the polls taken in the past two weeks, support for Dobbs limply ranges from 31 to 45 percent. And plenty of polling ahead of the decision showed that Roe had solid public support.
Of course, whether a Supreme Court opinion has merit should not be determined by polls. The rationale behind lifetime appointments is to insulate judges from the passions of the moment, as majority rule is not a great way to protect constitutional rights. Nevertheless, the overturning of popular, long-standing precedent is incredibly unusual, which prompts the question: How did it happen?
Let’s start at the beginning.
Republican appointees have composed the majority of the Supreme Court for 50 years. At the onset of this period, in 1973, Roe was decided.
Republicans never took pride in the achievement. In 1976, President Gerald Ford expressed support for a constitutional amendment allowing states to ban abortion. The GOP platform that year went further, expressing support for “a constitutional amendment to restore protection of the right to life for unborn children.”
Yet Republican presidents kept nominating justices who flinched at overturning Roe. The Ronald Reagan appointees Sandra Day O’Connor and Anthony Kennedy, along with the George H. W. Bush appointee David Souter, reaffirmed a constitutional right to abortion in 1992.
One could be forgiven for wondering whether, despite the party’s anti-abortion rhetoric, Republican leaders were genuinely committed to Roe’s demise.
Reagan always insisted that he did not apply a litmus test on abortion when making judicial nominations, and he could back up the claim. While he pleased social conservatives when he nominated Antonin Scalia and (unsuccessfully) Robert Bork to the Court, O’Connor had a pro-choice record as Arizona state senator, and pro-life leaders opposed her nomination. As reported in First, by Evan Thomas, when the far-right Senator Jesse Helms repeated to Reagan false claims about O’Connor circulated by an anti-abortion Phoenix doctor, Reagan told Helms the accuser was a “fanatic.” Helms concluded that opposition to O’Connor was futile.
As noted in Jon Meacham’s Destiny and Power: The American Odyssey of George Herbert Walker Bush, the first President Bush did not ask Souter or his other Supreme Court nominee, Clarence Thomas, about their abortion views. He wrote in his diary about Thomas, “If he rules against what I think on Roe v. Wade, so be it.”
Then, in 1992, when Planned Parenthood v. Casey brought Pennsylvania’s abortion restrictions to the Court’s attention, five Republican appointees—including three from Reagan and Bush—voted to reaffirm a constitutional right to abortion.
Republicans didn’t get another opportunity to fill a Court vacancy until 2005, when O’Connor retired in July, and Chief Justice William Rehnquist died in September on President George W. Bush’s watch. Conservative frustrations had reached the boiling point by then, and the pressure on Bush to appoint proven opponents of Roe had been intensifying.
One year earlier, a band of House conservatives resisted Bush’s plan to expand Medicare with a prescription drug benefit. The vote had been called at 3 a.m., then was kept open because House leaders didn’t yet have a majority. In his book Days of Fire: Bush and Cheney in the White House, Peter Baker detailed how Bush was woken at 4:45 a.m. to meet with the holdouts. Representative Trent Franks said, “If we could get the president of the United States to give his word of honor tonight that he would only appoint Supreme Court justices that he knew would overturn Roe v. Wade, uphold personhood of the unborn in the Constitution, and be strict constructionists, we could get this done right now.” Franks walked out of the meeting believing he got that commitment, though the Bush aide David Hobbs recalled that the president only said, “I don’t have a litmus test. You know what’s in my heart. You know what kind of judicial philosophy I have.”
When O’Connor retired, Bush interviewed five prospects, three of whom—John Roberts, Samuel Alito, and Michael Luttig—were on a list provided by a group of conservative lawyer-activists organized by the White House political adviser Karl Rove known as the Four Horsemen. Baker reported that the final two were Roberts and Luttig: “Alito was a more reserved figure, without Roberts’ easy charm or Luttig’s forceful intellect.” Roberts had also been a judge for a much shorter time than the other two and had a thinner paper trail. Baker observed, “Given that it was O’Connor’s seat, it was easier to nominate someone without a record as a full-throated conservative.”
Keep in mind that the Bork debacle remained traumatizing for Republicans. The original originalist, Bork was openly critical of the Griswold v. Connecticut decision that asserted a constitutional right to privacy and laid the foundation for Roe. His nomination was defeated on the Senate floor with bipartisan majority opposition. After Reagan’s second pick foundered because of marijuana use, the relatively moderate Anthony Kennedy was selected. Bush could not be confident that another aggressive conservative wouldn’t become another political liability. Still, many conservatives in Washington knew Roberts and liked him, including Franks, who put Roberts on his list for Bush.
Before Roberts was confirmed to replace O’Connor, Rehnquist died, and Bush chose to nominate Roberts as chief justice. As he thought about who to pick for the open associate justice slot, making ultraconservatives happy was not atop the president’s mind. Bush was already having a rough 2005. His signature Social Security privatization proposal was rebuffed. The Iraq War had become a quagmire, and public support for it was sagging. Then, days before Rehnquist’s death, Hurricane Katrina struck New Orleans, and Bush was excoriated for bungling the response. The last thing he wanted was a messy confirmation.
Moreover, the First lady had publicly pressured him to select a woman, and, according to Days of Fire, the chief of staff gave a directive to the search committee: “No white guys.” But those on the list of sitting Republican female judges were generally considered too right wing or not right wing enough. Bush, however, was quietly considering the head of the search committee: his White House counsel, Harriet Miers. In late September, Senate Democratic leader Harry Reid told Bush he would support Miers. (Reid believed that the Court had too many justices from the federal judiciary’s insular world and not enough with real-world experience.)
But committed conservatives did not view Miers as up to the job. “She had never expressed a rigorous judicial philosophy,” Baker wrote. Leonard Leo, the Federalist Society leader and one of the Four Horsemen, was “literally speechless” when told Miers was the pick two hours in advance.
Many Republicans did something audacious: They opposed the Supreme Court nomination of a Republican president. Just 12 minutes after the announcement, the well-connected conservative activist Manuel Miranda trashed Miers in an email statement as “possibly the most unqualified choice since Abe Fortas,” the political ally of Lyndon Johnson’s who was forced to resign from the Court. When Bush aides tried to sell Miers to a group of conservatives, the activist Paul Weyrich told them, “I’ve had five ‘trust-me’s in my long history here … the president saying he knows her heart is insufficient.”
Bush had won the endorsement of the social conservative leader James Dobson after telling him that Miers attended a church that opposed abortion. But three weeks after the announcement, The Washington Post uncovered a speech Miers gave in 1993 in which she discussed abortion and school prayer and said, “The more I think about these issues, the more self-determination makes sense.” She also declared, “When science cannot determine the facts and decisions vary based upon religious belief, then government should not act.” Whether or not that meant she would uphold Roe is unclear; when running for the Dallas City Council in 1989, she expressed support for an anti-abortion constitutional amendment. But for conservatives already suspicious of Miers, any ambiguity was damning.
Bush tried to stick by Miers. “I do not care about them at all,” Bush privately vented about Miers’s critics. But, as Days of Fire explained, Miers proved out of her depth during her practice sessions and in private meetings with senators. Baker wrote, “In the end, it was not the attacks by conservatives that would do in Miers. It was her own performance.” However, you can’t easily separate the two. If conservatives weren’t already revolting against Miers, Bush would not need to be as concerned about any imperfections at the hearings. And if the conservative reaction were not important, he wouldn’t have been compelled to replace Miers with someone with a long record of conservative jurisprudence, let alone someone who, two decades earlier in the Reagan administration, was strategizing how to overturn Roe.
According to Baker, Alito got the nod over Luttig because Bush thought Alito was “not as easy a target for Democrats.” Still, Alito provided conservatives with something they had craved since the Bork defeat: a judicial nominee with a long conservative paper trail. And that did give Democrats something with which to work.
At the confirmation hearing, Senator Lindsey Graham sought to blunt Democratic attacks by treating Alito’s record as a Roe opponent to be no big deal: “If I wanted to work for Ronald Reagan, one of the things I would tell the Reagan administration is I think Roe v. Wade was wrongly decided.”
Questioned about his stated opposition to Roe back in 1985 by Senator Arlen Specter, Alito answered,
Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration. Today if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we’ve been discussing, and that’s the issue of stare decisis. And if the analysis were to get beyond that point, then I would approach the question with an open mind … When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.
The “open mind” line is often repeated today as an example of Alito misleading the Senate to win confirmation. But he dropped hints that the repeal of Roe remained a life goal and that he had thought about how to do it. When Specter asked if the Court would risk legitimacy by overturning Roe, Alito replied, “I think that the legitimacy of the Court would be undermined in any case if the Court made a decision based on its perception of public opinion.”
“The rule of stare decisis is not an inexorable command,” he told Senator Dianne Feinstein, adding, “One situation in which there is a special justification for overruling a precedent is if the rule has proven to be unworkable.” He recalled when he adjudicated Casey before it reached the Supreme Court as an appellate judge on the Third Circuit: “Trying to apply the undue burden test”—O’Connor’s preferred standard for determining if an abortion regulation made it too hard for a woman to get an abortion—“was extremely difficult.” The undue burden standard became the controlling standard once the Supreme Court decided Casey. In the Dobbs majority opinion, Alito repeated the frustrations from his confirmation hearing: “The [undue burden] test is full of ambiguities and is difficult to apply.”
Alito’s confirmation was a massive triumph for the renegade conservatives. They not only successfully outmaneuvered a Republican president, but they also christened a judicial nomination strategy that GOP leaders were slow to embrace after the Bork bust. After confirmation hearings without glaring stumbles from the low-key nominee, public support for Alito’s confirmation ticked up from 49 to 54 percent, with only 30 percent in opposition. Conservative judges need not cloak their views throughout their careers to get confirmed. Democratic base voters might grind their teeth, but swing voters would shrug—no more need for “trust me” nominees.
In early 2016, then-Senate Majority Leader Mitch McConnell employed this political logic when he refused to consider any nominee from Barack Obama to replace the deceased Antonin Scalia. Instead of worrying that such an audacious move would alienate swing voters, he apparently concluded that judicial politics are primarily of interest to base voters and therefore playing for keeps was worth the risk.
By May, Donald Trump had effectively wrapped up the Republican presidential nomination, but the promiscuous celebrity had yet to convince socially conservative voters—who had largely backed Ted Cruz—that he would advocate for their interests. Two weeks after becoming the presumptive nominee, Trump released a list of judges—developed with help from the conservative Federalist Society and Heritage Foundation—that he said would guide his Supreme Court selections. During the presidential debates, the New Yorker flatly pledged that his judicial nominees would overturn Roe. He won, and they did.
But would McConnell and Trump have done what they did if Harriet Miers had glided onto the Supreme Court? Conservative activist expectations, and the Republican establishment’s willingness to go the extra mile and meet those expectations, grew exponentially because the Alito gambit worked. (And if Miers were on the Court instead of Alito, perhaps she would have sided with Roberts or even the liberals in the Dobbs case—that is, if the Dobbs case had even been taken up by the Court, and the rest of the Court’s composition was the same.)
What lessons should be drawn from the Miers-Alito episode? On the one hand, it is a testament to the tenacity of ideologues. For decades, anti-abortion conservatives maintained their determination to overturn Roe, no matter what the polls or Republican Party leaders said. They shook off defeats and took advantage of every opportunity.
But they won without the public. The Alito triumph, and the blockade of the Garland nomination, proved that swing voters didn’t care about judicial nominations. But that is not the same thing as earning a public mandate. Trump was not exactly rewarded at the ballot box in 2020 for ramming through the Amy Coney Barrett nomination in the waning days of the campaign. And there’s little in the post-Dobbs polls to suggest that most Americans are happy to see abortion rights vanish. Republican politicians could face blowback in 2022 and beyond.
The anti-abortion right played an insider long game to perfection. Now they have to go outside and face the voters.