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.)
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
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.