NRL News
Page 18
April/May 2010
Volume 37
Issue 4-5

Justice John Paul Stevens: Unacknowledged Master Pro-Abortion Strategist

By Dave Andrusko

As John Paul Stevens approaches his final months on the bench, the 90-year-old Associate Justice is being lauded and bathed in sympathetic profiles by reporters and columnists alike. Many, such as the Los Angeles Times’ David Savage, try to paint Stevens’ hard-line pro-abortion position as merely a reflection of a man who essentially stood still while the Court “shifted right.”

“As he [Stevens] saw it,” Savage wrote, “he held to the center. On abortion, prayer in schools and campaign spending, he tried to maintain the law as it was when he joined the court.” How accurate is this? And what does that mean?

As best I can tell, there is not a lot of systematic study of Stevens’ views on abortion or, perhaps more importantly, what role he played in romancing other justices to embrace his position. Employing her research talents, my associate, Liz Townsend, miraculously found a piece written by Linda Greenhouse, formerly the New York Times’ Supreme Court correspondent for many years.

“Justice John Paul Stevens as Abortion-Rights Strategist” appeared in the February University of California, Davis Law Review (http://lawreview.law.ucdavis.edu/issues/43-3_Greenhouse.pdf). This is a compelling analysis of the abortion jurisprudence of the first justice appointed after Roe was handed down in 1973.

Greenhouse (the Knight Distinguished Journalist-in-Residence and Joseph Goldstein Lecturer in Law at Yale Law School) has a long track record as unabashedly pro-abortion. A few years ago, she wrote a laudatory biography of Blackmun, and it apparently was by reading through his trove of private papers that Greenhouse was able to piece together Stevens’ behind the scenes role.

It’d be fair to characterize Greenhouse’s view of Stevens as consigliore to Justice Harry Blackmun, the author of Roe v. Wade and for many years afterwards its most incendiary protector. As the original 7–2 pro-Roe majority gradually dwindled, Blackmun’s rhetoric grew increasingly apoplectic, which Stevens believed served no good purpose.

Whereas Blackmun never missed a chance to preach the coming Apocalypse (the reverse of Roe), Stevens worked the gears of the Court to make sure the basic “right” to abortion was maintained. (According to Greenhouse’s account, Stevens’ efforts to convince Blackmun that it was counterproductive to preach the end of the world fell on respectful but unreceptive ears.)

Greenhouse unpersuasively portrays Stevens as a would-be middle of the roader on abortion. “But that was a luxury that he was not to enjoy,” Greenhouse writes (a.k.a. an infusion of right-wingers “made him do it”).

“While the absence of interest in Justice Stevens’s abortion views in 1975 is understandable,” Greenhouse writes, “the real mystery is the lack of appreciation today of his role in the Court’s abortion jurisprudence. Beyond describing how his views evolved, this Article’s further purpose is to give Justice Stevens his due as a major contributor to the contours of the right to abortion that exists today. Indeed, he has served as an indispensable strategist in the preservation of that right at its moment of greatest need.” It would only be stating the obvious that Greenhouse hardily approves of Stevens’ “major” contributions.

As noted above, according to Greenhouse, Stevens was instrumental in maintaining legal abortion even as the original co-authors of Roe retired or died. Stevens “became both an indispensable ally to Justice Harry A. Blackmun and a strategic advocate who won the trust of Justice Sandra Day O’Connor, without whose vote the right to abortion would not have been preserved,” Greenhouse writes. “The purpose of this Article is to trace Justice Stevens’s evolution and to give him his due as an important strategist of abortion rights.”

How did he weave his magic? Lots of ways, most of which appear to be just knowing human nature. Stevens ladled out generous doses of flattery, appealed to his fellow justices to respect stare decisis (respecting precedent—when the precedent was one he agreed with), and continually regrouped when justices at conference signaled they would be taking a position contrary to that of Stevens/Blackmun.

The best example is the famous 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey. Various justices are given “credit” for coming up with results that “adhere to the essence of Roe’s original decision.” But Greenhouse points to Stevens as the key player.

It’s too complicated to address at length, but the gist of it is that Stevens coaxed along justices who might have initially been willing (at least theoretically) to use the case to reverse Roe. According to Greenhouse, Stevens ran “interference between Justice Blackmun and the other three Justices (Souter, O’Connor, and Kennedy).” He continually offered counsel, flattered them shamelessly in letters, and persuaded them to restructure the way they justified their decision, which Greenhouse considers a major coup.

So, if Greenhouse is to be believed, by playing a “singular and unanticipated role,” this cagey backroom Court politician kept the abortion “liberty” as much in tow as could ever have been expected, given the Court’s changing composition.

But to return to the original question, was Stevens merely standing in place while the Court moved right?

In 1973, Roe gutted the abortion laws of all 50 states, but the unanswered question was were there any limitations the Court would accept? The “details” of what Roe meant have been spelled out over the last 37 years.

Stevens hated the Hyde Amendment, quickly pitched overboard his initial support for parental consent, and by 2000 would accept no limitations on even something as extreme as partial-birth abortion. No, this was no “moderate” standing athwart “right-wingers,” but a man who did his level best to assure that no state or the federal government could ever do anything to protect unborn babies.