In an interview with Salon, Green Party Presidential candidate Jill Stein made the following observations about the U.S. Supreme Court during President Nixon’s administration:
“We are the ones who should be pressuring the Supreme Court. This is how we got Roe v. Wade to start with an extremely conservative court. This is how we brought the troops home from Vietnam, how we got the EPA, the Clean Air Act the Clean Water Act, and protections for workers under one of the most corrupt conservative presidents ever in the form of Richard Nixon. ”
Since I’m a historian of reproductive rights, I’ll focus on her remarks about Roe v. Wade. Yes it is true that Chief Justice Warren Burger’s court was more conservative than its predecessor. According to an article by Ira Krakow from Daily Kos,
“Nixon appointed [Warren] Burger in 1969 to succeed Earl Warren, who was perceived as a liberal interventionist, especially in areas like school desegregation and civil rights, as Chief Justice. Nixon wanted the Court to follow a more conservative, go-slow attitude, especially in civil rights. This was the era of school busing and integration, real political hot buttons. Burger was a conservative Minnesota judge.”
Justice Harry Blackmun, who wrote the opinion for Roe v. Wade, was also a Nixon appointee. Blackmun also served as an attorney for the Mayo Clinic, so he was as concerned with the right of physicians to practice medicine as we was with women’s rights to privacy (maybe even more so). Krakow writes,
“Blackmun had worked closely with doctors, respected them highly, and wanted to ensure that they could practice medicine to the maximum of their professional skills. He considered that the Hippocratic Oath forbade abortions, but in practice abortions had been practiced throughout recorded history, from ancient Egypt and Greece to the present. . .
In later drafts, Blackmun added references to the right of privacy. He was influenced by Justice Douglas, who had written about the penumbras, i.e., implied rights to privacy, in Griswold v Connecticut, a 1965 case involving a Connecticut contraception law that I discussed earlier. Douglas wrote the majority opinion in Griswold. He also was influenced by Justice Brennan, a Catholic who was a strong advocate of privacy rights and who would vote with the majority in Roe.”
As I’ve written elsewhere, the right of privacy described in the Griswold opinion was a reflection of its era, one of traditional family values and the sanctity of marriage. The the Court declared that marriage involved “a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” The Court asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” Even the two dissenters, justices Hugo Black and Potter Stewart, who said there was no constitutional “right of privacy,” nevertheless considered the Connecticut statute “an uncommonly silly law.”
In 1972, the Court extended the right of privacy to unmarried persons seeking birth control, stating in their ruling Eisenstadt v. Baird that “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” A year later, the right of privacy was extended to cover abortion in Roe v. Wade.
However, none of this was the result of activists pressuring SCOTUS. Justices are appointed by the President and approved by the Senate. They are not beholden to voters or activists. So, Dr. Stein’s claim that we can pressure a court to do what we like is shear fantasy.