<mediadc-video-embed data-state="{"cms.site.owner":{"_ref":"00000161-3486-d333-a9e9-76c6fbf30000","_type":"00000161-3461-dd66-ab67-fd6b93390000"},"cms.content.publishDate":1656123471057,"cms.content.publishUser":{"_ref":"00000165-15c6-d22c-a1ef-97efc26a0001","_type":"00000161-3461-dd66-ab67-fd6b933a0007"},"cms.content.updateDate":1656123471057,"cms.content.updateUser":{"_ref":"00000165-15c6-d22c-a1ef-97efc26a0001","_type":"00000161-3461-dd66-ab67-fd6b933a0007"},"rawHtml":"
var _bp = _bp||[]; _bp.push({ "div": "Brid_56105433", "obj": {"id":"27789","width":"16","height":"9","video":"1039977"} }); ","_id":"00000181-98a6-ddcb-a3e1-dde6a1650000","_type":"2f5a8339-a89a-3738-9cd2-3ddf0c8da574"}”>Video EmbedAs he denounced the Dobbs v. Jackson Women’s Health Organization decision Friday, President Joe Biden identified one of the biggest changes since the Supreme Court last considered a challenge to the 1973 Roe v. Wade abortion case almost 30 years ago.
“In the five decades that followed Roe v. Wade, justices appointed by Republican presidents, from Eisenhower, Nixon, Reagan, [George H.W.] Bush, were among the justices who voted to uphold the principles set forth in Roe v. Wade,” Biden said. That didn’t happen again in Dobbs, but it did decades earlier.
When the Supreme Court handed down its decision in Planned Parenthood v. Casey in June 1992, eight of the nine justices were appointed by Republican presidents. Republicans who campaigned on Roe’s reversal had been in the White House for nearly 12 years. The sole Democratic nominee left on the high court, Justice Byron White, was one of the two dissenters in Roe. The sitting chief justice at the time of Casey, William Renquhist, was the other.
Many thought Casey would therefore be the end of Roe. Instead, the core holding of the landmark decision was upheld, even as it was substantially revised and some of Pennsylvania’s abortion laws at issue in the case were allowed to stand.
The plurality opinion was written by Justice Anthony Kennedy, who was nominated by conservative President Ronald Reagan. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy wrote. All five votes for continuing nationwide abortion rights in the 5-4 ruling came from GOP-apppointed justices. All three votes for the plurality opinion were selected by Reagan or the elder Bush, both antiabortion presidents.
That’s what Biden meant when he claimed that Roe “was a constitutional principle upheld by justices appointed by Democrat and Republican presidents alike.” The president added, “Roe v. Wade was a 7-2 decision written by a justice appointed by a Republican president, Richard Nixon,” referring to Justice Harry Blackmun.
“It was three justices named by one president — Donald Trump — who were the core of today’s decision to upend the scales of justice and eliminate a fundamental right for women in this country,” Biden said.
But Republican presidents previously nominated justices who turned out to hold a mix of judicial philosophies following their confirmation. Not since John F. Kennedy’s selection of White, before abortion was a contested issue, has a Democratic president tapped a justice who went on to vote mostly with the conservative bloc on the court. Several Republican appointees, including Blackmun, went on to align with the liberal bloc.
Democratic presidential candidates often specifically pledged to make Roe a litmus test for their Supreme Court choices. This includes Biden, who said his nominees must “respect foundational precedents like Brown vs. Board of Education and Roe v. Wade,” putting abortion alongside ending segregation in public schools.
Reagan’s judges split on Roe. Renquhist, a Nixon-nominated justice Reagan promoted to chief, and Justice Antonin Scalia, voted to overturn the abortion precedent. Kennedy and Justice Sandra Day O’Connor, the first woman on the Supreme Court, voted to uphold it.
The same was true of Reagan’s successor. Bush-appointed Justice Clarence Thomas voted to reverse Roe in Casey while Justice David Souter, his other nominee, reaffirmed it.
Senate Democrats voted unanimously for Scalia while they were in the minority. But they recaptured the majority in the 1986 midterm elections and then rejected Reagan’s nomination of Robert Bork, who believed Roe was wrongly decided. Kennedy filled the seat instead. They nearly blocked Thomas, who also faced sexual harassment charges from Anita Hill, in 1991. Biden chaired the Judiciary Committee during both fights.
After Casey, outside conservative groups rejected the “stealth nominee” strategy of avoiding prospective justices with longer paper trails in the hopes of winning Senate Democrats’ support. Organizations like the Federalist Society began cultivating a reliable conservative legal network. “No more Souters!” was the battle cry.
Senate Republicans went along more gradually. They overwhelmingly backed the confirmation of Democratic President Bill Clinton’s two nominees, Justices Stephen Breyer and Ruth Bader Ginsburg. But they did balk when President George W. Bush, a fellow Republican, nominated his aide Harriet Miers rather than a more proven conservative.
Bush withdrew Miers’s nomination. Justice Samuel Alito, the author of the majority opinion in Dobbs, was nominated and confirmed instead.
By the time Barack Obama was president, Senate Republicans under the leadership of Sen. Mitch McConnell (R-KY) were ready to block Democratic judicial nominee using the filibuster while in the minority. When Scalia died in early 2016, Republicans were back in the majority. They kept Scalia’s seat empty for almost a year and did not give Merrick Garland, Obama’s nominee to replace him, a hearing, much less an up-or-down vote.
Trump pledged to nominate a justice in “the mold of Scalia.” Because his connections to legal conservatives were tenuous, Trump compiled a list of potential nominees from judges approved by the Federalist Society and its allies. After beating Hillary Clinton, he stuck to his word.
Democrats blew up the filibuster for lower court nominees to expedite the confirmation of Obama’s judges. McConnell and the GOP in 2017 did the same thing for Supreme Court nominees under Trump.
Justice Neil Gorsuch ended up filling Scalia’s seat instead of Garland. Justice Brett Kavanaugh succeeded Kennedy. Then Ginsburg, whom Obama had attempted to persuade to retire when he was in office and Democrats still controlled the Senate, died during Trump’s last year. She was replaced by Justice Amy Coney Barrett.
All three Trump nominees voted with the majority in Dobbs to junk Roe, joining Thomas and Alito. Along with Chief Justice John Roberts, the conservative-controlled court voted 6-3 to uphold Mississippi’s ban on abortion after 15 weeks.
“The system, it’s explicitly designed to avoid another Roberts type,” the conservative Judicial Crisis Network’s Carrie Severino previously told the Washington Examiner. “In the Trump era, there’s also been a focus on courage.”
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Trump exulted in a statement that this was “only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court.”
Roberts sought a ruling in Dobbs similar to Casey: expanding the range of permissible abortion restrictions and eroding Roe but not overturning it. In the final vote, taken weeks after a draft of Alito’s opinion leaked, he found himself alone.
