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Did Democrats blow it on Roe v. Wade?

The real reason conservative activists might be on the verge of a Supreme Court victory.

This artist sketch depicts Mississippi Solicitor General Scott Stewart speaking to the US Supreme Court on December 1. Justices seated from left are Brett Kavanaugh, Elena Kagan, Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, and Amy Coney Barrett.
Dana Verkouteren via AP

With newly intense speculation that the Supreme Court will overturn or gut the Roe v. Wade decision, after conservative justices sounded set to do so in Wednesday’s arguments in Dobbs v. Jackson Women’s Health Organization, a blame game has ensued among supporters of abortion rights.

Some progressives look at the apparent success of the activists on the right and see a record of feckless failure on their own side: If only Democrats cared about abortion rights more and fought for them harder, as the anti-abortion movement fought to roll back abortion, this could have been averted.

But one of the main reasons conservatives got to the point where Roe’s defeat seems plausible is that they learned to be more like Democrats.

Republicans won most of the presidential elections in the first two decades after the Roe decision came down, and Republican presidents got to fill every Supreme Court vacancy that opened up in that span. But they did not reliably appoint anti-abortion justices. Several Republican appointees — John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter — ended up voting to uphold Roe, which is why it wasn’t overturned decades ago.

In contrast, though there have been fewer Democratic appointees since Roe, every one of them turned out to be reliably pro-abortion rights.

The political triumph of conservative activists, then, was in taking over their own party — pressuring George W. Bush and Donald Trump to rethink how Supreme Court appointments were made, and to only appoint nominees they’d vetted and deemed reliably anti-abortion. Groups like the Federalist Society reshaped the party’s politics and the conservative legal network so that recent GOP presidents not only could appoint justices believed to have anti-abortion views (due to better vetting) but felt they had to appoint such justices. Again, this was not necessary for Democrats, who had no trouble appointing justices who supported abortion rights.

Once it became the case that the anti-abortion party apparently only appoints anti-abortion justices, and the party in favor of abortion rights only appoints justices who support those rights, then Roe’s fate came down to which of those parties would win elections at key moments. The GOP did — taking the Senate in 2014 and the presidency in 2016, allowing them to fill three seats between then and 2020, in part because they aggressively used their Senate control to prevent President Obama from filling one of those seats. If Democrats can be said to have “blown it” on Roe v. Wade, that’s how they did so — by losing those hugely important elections.

Past Republican presidents appointed many justices who disappointed conservative activists

In the first two decades after Roe, spanning 1973 to 1992, six Supreme Court seats newly opened up — all while Republicans who said they opposed Roe v. Wade and would like it overturned were serving as president. (Technically there were seven openings, as William Rehnquist moved from associate justice to chief justice in this time, but he was already on the Court so I’m not counting his promotion as a new appointment.)

So by the time the Planned Parenthood v. Casey case reached the Supreme Court in 1992, the math did not look good for Roe. Eight of the Supreme Court’s nine justices had been appointed by Republican presidents (including Harry Blackmun, who authored Roe in the first place); the sole Democratic appointee was Byron “Whizzer” White, who had dissented from Roe.

But that year, four of those recent Republican appointees — Stevens, O’Connor, Kennedy, and Souter — joined Blackmun, providing a five-vote majority that prevented Roe from being overturned. (The other two new Republican appointees, Antonin Scalia and Clarence Thomas, joined Rehnquist and White in dissent.)

This was a stunning failure from a party that had promised its supporters they’d get Roe overturned. And it happened for several reasons.

One is that most of these nominees (all but O’Connor and Scalia) had to make it through a Democrat-controlled Senate. President Reagan did try to appoint the conservative, Robert Bork, to one vacancy, but Democrats blocked him, so Reagan nominated Anthony Kennedy instead — a fateful switch. Others, like Souter, may have been selected due to their lack of a “paper trail” of controversial conservative statements.

Another reason, though, is that the party just handled judicial appointments differently at that time. Republican presidents weren’t so laser-focused on appointing judges who they believed would pass an anti-abortion litmus test. Reagan, for instance, initially prioritized appointing the first woman to the Court, O’Connor, over a nominee who’d be more conservative. And activists who thought about the Court more politically didn’t yet have the juice to bend the president to their will every time.

How a balanced Court swung to the right

The final appointment before the Casey decision, George H.W. Bush’s appointment of Clarence Thomas, pointed the way to the future in every way except its outcome. Thomas was a staunch conservative (replacing the liberal legend Thurgood Marshall) who would turn out to be reliably anti-abortion, and his nomination was bitterly controversial. But the outcome, in the end, was that the Democrat-controlled Senate did confirm him, 52-48. (From a modern perspective, what’s most striking about that vote is that nobody filibustered.)

Then from 1993 to 2012, Presidents Bill Clinton, George W. Bush, and Barack Obama each ended up getting to fill two Supreme Court seats while their own party controlled the Senate.

  • Clinton replaced the anti-abortion Justice White with Ruth Bader Ginsburg, providing Roe a sixth vote on the Court, as well as replacing Blackmun with Stephen Breyer.
  • Bush replaced the late conservative Chief Justice Rehnquist with another conservative, John Roberts. More importantly, he replaced O’Connor, who voted to uphold Roe, with Alito, a more solid conservative. (His initial choice for that seat, White House counsel Harriet Miers, lacked support due to conservative objections.)
  • Obama replaced two liberal justices (who had been appointed by Republicans), Souter and Stevens, with two other liberals, Sonia Sotomayor and Elena Kagan.

So for decades, there was a delicate balance of sorts, with five conservatives and four liberals on the courts, but with some of those conservatives (O’Connor and Kennedy) siding with liberals on certain key issues, and especially on Roe.

Then in 2016, Antonin Scalia died while Barack Obama was president. In theory, this was an enormous opportunity for Obama to replace a conservative with a liberal. The long-sought 5-4 liberal majority was in reach.

Except for one problem: Republicans had taken over the Senate in the 2014 midterm elections. This was the first Supreme Court vacancy to arise when the Senate and the presidency were controlled by opposite parties since the battle over Thomas’s seat in 1991. And partisan polarization had increased in the two and a half decades since.

Though previous Democrat-controlled Senates had rejected some nominees Republican presidents had put up for the Court, each debate was always about each specific nominee. GOP leader Mitch McConnell, though, set a new precedent: He said he wouldn’t consider any nominee Obama put up. (He claimed this was because it was an election year, but if Scalia had died in 2015, he would likely have found some other pretext — the appointment was simply too important for conservatives.)

This move paid off tremendously when Trump won the presidency and the GOP held the Senate in 2016. And Trump’s behavior once in office is where the increased success of conservative activists in dominating their party on this issue becomes evident — Trump made clear he’d only put up nominees who had the enthusiastic support of the Federalist Society.

Trump then ended up making three Supreme Court appointments in a single term. Replacing Scalia with Neil Gorsuch kept the conservative majority intact. He then also got to replace Anthony Kennedy and the late Ruth Bader Ginsburg — two Roe defenders — with conservatives Brett Kavanaugh and Amy Coney Barrett. (He could appoint Barrett because Republicans had managed to hold on to the Senate in the 2018 midterms.)

We don’t yet know for sure how the final decision on Dobbs will come down and what the margin would be. But the overall pattern is clear: Recent Democratic presidents have consistently appointed pro-Roe justices when they could. Republican presidents, though, may have started consistently appointing anti-Roe justices at just the right time.