A People's History of the Supreme Court

by Peter Irons

  Coffee had talked with a Dallas Times-Herald reporter about the lawsuit, and the paper ran a front-page story the evening she filed the complaints. A followup article reported estimates of three thousands illegal abortions in Dallas each year. The paper’s editors evenhandedly deplored both the Texas abortion, law, which they called “badly in need of an intelligent overhaul,” and the suits against it, for “tossing an extremely sensitive and complex moral issue into the laps of a mere handful of individuals—the judges who are to decide the case.”

  Linda Coffee and Sarah Weddington drew a good panel of federal judges to decide the “sensitive and complex moral issue” of abortion. All three were elderly—their average age was sixty-six—but all had been appointed by Democratic presidents and were considered liberal by civil rights lawyers. Irving Goldberg, who presided at the hearing on May 22, 1970, was a native Texan with a Harvard law degree who had practiced in a powerhouse Dallas law firm before President Johnson named him to the Fifth Circuit Court of appeals in 1966. District judge Sarah Hughes, born in Baltimore in 1896, had earned a law degree while she worked as a police officer in Washington, D.C. She moved to Dallas in 1922, was elected twice to the state legislature, and served as a state judge from 1935 to 1961, when President Kennedy named her to the federal bench. On November 23, 1963, Judge Hughes administered the presidential oath to Lyndon Johnson after Kennedy’s assassination in Dallas. The third panel member, Judge William Taylor, had practiced law in Dallas from 1932 until President Johnson placed him on the bench in 1966.

  Six lawyers sat at the counsel tables when Judge Goldberg opened the hearing. Linda Coffee and Sarah Weddington spoke for Jane Roe and the Does; John Tolle and Jay Floyd represented District Attorney I Henry Wade and Texas attorney general Crawford Martin. Fred Brunner and Ray Merrill appeared for Dr. James Hallford, an “intervenor” who had been indicted for performing illegal abortions. Dr. Hallford’s patients included rape and incest victims, and women who had contacted German measles, or rubella, during their pregnancies and faced great risks of having deformed babies. His complaint asked that the state criminal charges be dismissed because the Texas abortion law violated the federal Constitution.

  Linda Coffee led off, moving from questions of federal jurisdiction into the constitutional issues raised in the complaint. She spoke confidently, certain that Judge Hughes—for whom she had clerked the year after law school and Judge Goldberg were sympathetic. Coffee started running down the list of five constitutional amendments—from the First to Ninth—that she claimed the Texas abortion law violated. Judge Hughes cut her off at the First and directed her to the Ninth. The judge had obviously read Justice Arthur Goldberg’s concurrence in Griswold and liked his Ninth Amendment argument. Coffee agreed and sat down, sensing victory.

  Sarah Weddington then stood up, nervous in her first court appearance. Judge Hughes “gave me a reassuring smile and a slight wink,” she later recalled. More relaxed, Weddington addressed the question of the state’s interests in limiting or preventing abortions; even a constitutional right can be overcome by a “compelling” state interest. fudge Goldberg interrupted, asking her to assume that the Ninth Amendment applied to abortion: Could Texas require that abortions be done in hospitals, or be limited to married women? Weddington’s answers were superfluous; Goldberg and Hughes had already decided the case on Ninth Amendment grounds. The remaining lawyers went through the motions, but they also knew the inevitable outcome. Arguing for the state, Jay Floyd asked the judges to dismiss Jane Roe’s complaint for lack of proof she was still pregnant. Judge Hughes was not impressed. “Apparently you don’t think anybody has standing,” she retorted. Floyd answered the question Judge Goldberg had asked Weddington by asserting that the state’s “compelling” interest in banning abortion was to protect unborn fetuses. Asked for evidence that Texas lawmakers had ever asserted this interest, Floyd confessed he had none. The hearing ended with John Tolle’s claim that “the right of the child to life is superior to that of a woman’s right to privacy.”

  The panel’s opinion came down on June 17, 1970, less than a month after the hearing. It was short and unsigned; all three judges agreed on the outcome. They dealt with the “sensitive and complex” issue of abortion in two words. Linda Coffee and Sarah Weddington, the judges wrote, claimed the Texas abortion laws “must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children. We agree.” The judges quoted Justice Goldberg’s concurrence in Griswold, ignoring Justice Douglas’s opinion for the Court. But they also declined to enjoin state officials from enforcing the abortion law, citing the “strong reluctance of federal courts to interfere with the process of state criminal procedure,” a reference to the charges against Dr. Hallford. However, the judges had just declared unconstitutional the law under which he was prosecuted. This seemingly inconsistent ruling, giving both sides a partial victory, signaled the lawyers that either side could ask the Supreme Court to review the case. Just as Judge Hughes had winked at Sarah Weddington, both sides got the message and promptly sent petitions for certiorari to Washington.

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  “The Raw Edges of Human Existence”

  The petitions for certiorari in Roe v. Wade arrived at the Supreme Court clerk’s office in October 1970. But they languished there until May 21, 19 71, when the Court issued a brief notice that Roe had been granted review along with a Georgia case, Doe v. Bolton. The latter case involved a more “liberal” abortion law than the Texas statute; Georgia allowed abortions to protect a woman’s “health” and had a rape exception, but it required the approval of three-doctor panels and imposed restrictions on abortion procedures. A three-judge panel had struck down most of Georgia’s law but also denied injunctive relief; again, both sides asked the Supreme Court for review.

  The Court set both abortion cases for argument on December 13, 1971. But only seven justices sat on the bench for that session. Hugo Black and John Harlan had resigned within six days of each other in September; both had cancer and both died before the year ended. Although President Nixon nominated both of their successors—Lewis F. Powell, Jr., and William H. Rehnquist—on October 21, the new justices did not take their seats until January 1972. Of the seven who did hear arguments, only four had voted in Griswold 1965: Justices Douglas, Brennan, White, and Stewart. The first two were certain to vote against the Texas and Georgia abortion laws, along with Thurgood Marshall, who had joined the Court in 1967. Stewart had dissented in Griswold and White had written a narrow, almost-dissenting concurrence. The two newest justices, Warren Burger and Harry Blackmun, were questionable: both had been appointed by President Nixon, and both had displayed reluctance to strike down state laws, especially in criminal cases; the Texas and Georgia abortion statutes were, in fact, criminal laws, Justice Brennan, who learned to count votes at his father’s knee, could tally only three sure votes against the Texas and Georgia abortion laws. Winning the crucial fourth vote—assuming the Court would decide the cases without Powell and Rehnquist—would take all of Brennan’s persuasive skills. If the Court put off deciding the cases until the two new Nixon, justices took their seats, the task would be even more daunting.

  Justice Brennan decided to focus his efforts on Harry Blackmun, who had joined the Court after Abe Fortas resigned in disgrace in May 1969. Blackmun, was the lucky beneficiary of Richard Nixon’s political blundering. George Wallace, waving the Confederate flag, had almost cost Nixon the 1968 election. Determined to curry favor with southern whites, Nixon promised to fill the next Court vacancy with a southerner. He got his chance when Fortas resigned, but made bad decision in choosing federal appellate judge Clement Haynsworth of South Carolina to succeed him. After the Fortas scandal, the Senate wanted squeaky-clean justices; investigators discovered that Haynsworth had serious financial conflict-of-interest problems, and his confirmation lost by ten votes. Nixon immedia
tely vowed to find another “worthy and distinguished protagonist” of southern conservative views. His second nominee was far worse than the first. News reporters discovered that federal judge G. Harrold Carswell of Florida had affirmed his “firm, vigorous belief in the principles of White supremacy” in 1948. His later disavowal of that statement did not save Carswell from Senate rejection by six votes, but the fact that forty-five senators voted to confirm both of these tainted nominees speaks poorly for “the world’s greatest deliberative body.”

  Nixon abandoned his “Southern strategy” with a final blast at the “vicious assaults” on judges who believed in “the strict construction of the Constitution.” In April 1970, almost a year after Abe Fortas resigned, Harry Blackmun became the third nominee for his seat. Blackmun was born in 1908 in Illinois, but moved with his family in childhood to St. Paul, Minnesota. His major asset as a judical nominee was his boyhood friendship with Warren Burger in St. Paul. Blackmun had other impressive credentials, including a Harvard law degree and nine years as counsel for the prestigious Mayo Clinic in Minnesota. President Eisenhower placed Blackmun on the federal appellate bench in 1959, where he almost always voted to uphold state laws and sided with government in conflicts over individual rights. But he impressed his fellow judges as “the most studious member of the court,” looking closely at case records before he voted. Senator Strom Thurmond of South Carolina overlooked Blackmun’s Yankee origin and proclaimed him a “strict constructionist,” assuring his confirmations. Breathing a sigh of relief after the Haynsworth and Carswell debacles, the Senate approved Blackmun without dissent in June 1970. The press labeled Chief Justice Burger and Blackmun as the “Minnesota Twins,” and during Blackmun’s first term they agreed on more than 80 percent of the cases. However, Blackmun was modest and unassuming, in stark contrast to the pompous and self-important Chief Justice. Although he wrote some five hundred opinions before retiring in 1994, Blackmun. will always be known as the author of the Court’s Roe opinion. “I suppose I’ll carry Roe, to my grave,” he once said. Every news account of Blackmun’s death in March 1999, at the age of ninety, began with his authorship of the Roe opinion, his legacy to American women.

  Before the abortion case arguments, however, not even Harry Blackmun knew how he would vote. From the lawyers’ podium, he sat in the far-right seat when the session began on Monday, December 13, 1971. Sarah Weddington recalled being “extremely nervous” before her first Supreme Court argument. “Once I was in motion and into the argument, I was fine.” She first asked the justices to focus on her nameless client, fudging the facts slightly, “Jane Roe brought her suit as soon as she knew she was pregnant. As soon as she had sought an abortion and been denied, she came to federal court.” Weddington widened the Court’s focus. ”In Texas, the woman is the victim,“ she said. The state’s abortion laws forced thousands of pregnant women to undergo illegal abortions, “which certainly carry risks of death, all the side effects such as severe infection, permanent sterility, all the complications that result” Weddington argued that abortion “is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice” of childbirth or abortion.

  Justice Stewart politely interrupted. “Mrs. Weddington, so far on the merits, you’ve told us about the important impact of this law and you’ve made a very eloquent policy argument against it. I trust you are going to get to the provisions of the Constitution you rely on.” This proved to be a tough question. “We had originally brought the suit alleging the due process clause, equal protection clause, the Ninth Amendment, and a variety of others,” Weddington began. Stewart broke in: “And anything else that might obtain?” The courtroom erupted in laughter as Weddington answered, “Yeah, right.” She tried to salvage her argument. “One of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives.” But she left the podium without showing the justices a clear constitutional path to the destination she urged them to find.

  Jay Floyd argued for Texas as he had in Dallas. He first smiled graciously at Sarah Weddington and Linda Coffee at their counsel table. “It’s an old joke,” he said, “but when a man argues against two beautiful ladies like this, they’re going to have the last word.” No one laughed, and Chief justice Burger looked annoyed. After an embarrassed silence, Floyd argued that the case was moot be cause Jane Roe was no longer pregnant. “What procedure would you suggest,” Justice Steward asked, “for any pregnant female in the state of Texas ever to get any considerations of this constitutional claim?” Floyd had lost this argument in Dallas, and he lost again in Washington. “I do not believe it can be done,” he replied. This was a case in which “no remedy is provided” for Jane Roe to challenge the law, Floyd insisted. She could not choose between childbirth and abortion in Texas. “I think she makes her choice prior to the time she becomes pregnant,” he stated. As he had with Weddington, Justice Stewart prompted laughter at Floyd’s expense. “Maybe she makes her choice when she decides to live in Texas,” he quipped.

  Justice Blackmun quieted the chamber with a serious question. “In a constitutional case of this kind,” he said, “it becomes quite vital sometimes to rather precisely identify what the asserted interest of the state is.” Sarah Weddington had stumbled over the constitutional issues, and Floyd did no better, tripping over his words. “The protection of the mother, at one time, may still be the primary,” he asserted. That did not satisfy Blackmun, who reminded Floyd that “it’s important to know what the asserted interest of the state is in the enactment of this legislation.” Floyd was still floundering. “I am, and this is just from my—I speak personally, if I may. I would think that even when this statute was first passed, there was some concern for the unborn fetus.” Blackmun realized that Floyd had no idea what motivated the Texas lawmakers who adopted the criminal abortion statute in 1854.

  Justice Marshall demanded to know when life begins in Texas. “We say there is life from the moment of impregnation,” Floyd answered. Marshall made Floyd’s life more difficult. “And do you have any scientific data to support that?” Floyd pointed to his brief, assuring that it documented “the development of the fetus from about seven to nine days after conception.” Marshall poked his squirming victim. “Well, what about six days?” Floyd surrendered. “We don’t know”. Marshall poked again. “Well, this statute goes all the way back to one hour.” Floyd waved his white flag again. “Mr. Justice, there are unanswerable questions in this field.” The audience snickered, and Marshall ended Floyd’s torment. “I withdraw the question?” Expressing his relief, Floyd showed how rattled he had become. “Thank you. Or when does the soul come into the unborn, if a person believes in a soul? I don’t know.” Before he sat down, Floyd regained his composure. “There is nothing in the United States Constitution concerning birth, contraception, or abortion,” he concluded. “We think these matters are matters of policy, which should be properly addressed by the state legislature.”

  Daniel Webster and John W. Davis had brought tears to many eyes in the Supreme Court chamber defending a “small college” in New Hampshire and segregated schools in South Carolina. But the arguments on the “sensitive and complex moral issue” of abortion raised more laughter than emotion. The seven justices who heard the arguments in Roe v. Wade left the chamber feeling annoyed at both Sarah Weddington and Jay Floyd. Neither lawyer had given them much help on the constitutional issues.

  Three days after the arguments, the justices gathered in their conference room to discuss—and possibly decide—the abortion cases. There was considerable discussion but no decision. Chief Justice Burger led off, getting tangled in the facts of the Texas and Georgia cases, but he firmly supported both state laws. However, Burger reserved his vote. This practice, which Earl Warren had rarely used, infuriated Justice Douglas, who suspected that Burger wanted to see how the vote came out, so he could join the majority and assign the Cour
t’s opinion. If the Chief Justice was in the minority, Douglas would assign the opinion as the senior associate justice. Burger reserved his vote so often, joining the majority at the end, that Douglas had considered venting his anger in a published statement.

  As the justices declared their positions, Douglas counted four votes to strike down most or all provisions of the Texas and Georgia abortion laws: himself, Brennan, Marshall, and Stewart. Although Blackmun voiced reservations about the laws, Douglas felt he would stick with his “Minnesota Twin” on this issue. Justice White counted differently; he tallied four votes to uphold the laws: himself, Stewart, Blackmun, and Burger. Obviously, Stewart and Blackmun were the swing votes, and both sides considered them sympathetic. Douglas was certain, however, that he had at least four votes to invalidate the laws, and equally certain that Burger was in the minority.