Originalism, the Pro-Life Cause, and the Fight for the Soul of the Court
In the 1980s, pro-life direct action reached an all-time high, with groups like Operation Rescue and Pro-Life Action Network filling the streets of major cities and the headlines of major newspapers. It seemed that direct action was the future of the pro-life movement. This turned out not to be the case; the direct actions taken were more often than not illegal, such as blockading clinics. They were therefore self-destructive and doomed to disappear once prosecuted under the Racketeer Influenced and Corrupt Organizations Act (RICO) and, later, the Freedom of Access to Clinic Entrances Act of 1994.
Mainstream groups like National Right to Life meanwhile adopted official positions of only pursuing legal, nondirect means such as changing laws by lobbying and endorsing candidates who might do so, or what is known as “incrementalism:” a highly controversial strategy within the movement due to the sensitivity of the issue and the increasing abortion death toll year by year. Incrementalism entailed various ways of slowly chipping away at the abortion right enshrined in Roe v. Wade, including but not limited to requiring parental notifications for minors seeking abortion, and right-to-know or informed-consent laws requiring clinics to provide state-prescribed information on the medical implications of abortion.
Slowly, over time, these incremental moves made abortions less and less frequent in more and more circumstances, all under the Roe regime. In addition to such efforts, perhaps the most important incrementalist effort was attempting to move the judiciary back to a conservative jurisprudence by facilitating and endorsing the appointment of conservative jurists. The slowness of incrementalism made it controversial to many. For direct-actioners, something had to happen by sunset to stop the legalized slaughter of the unborn. Incrementalists were no less passionate, just better versed in the system and its rules, and were willing to wait, quite a long time as it turned out.
The incrementalists’ approach ultimately resulted in a strategy whose biggest aim was the eventual overturning of Roe v. Wade by the very institution that created it and, over the years, expanded it. The Court’s makeup, however, had to change in order to see this strategy through. As the process of seating justices entails both the executive and legislative branches nominating and confirming new justices, the prospect of altering the seats on the Supreme Court to better reflect a traditional jurisprudence (not to mention even getting this new Court to overturn precedent) was the longest of long shots. Yet, against all odds this long game has been won … at least for now.
Originalism: The Antidote to Judicial Activism
Starting with the Reagan administration in 1981, the pro-life movement, with the help of many others of an originalist philosophy, began the slow, arduous task of this incremental court-shaping strategy. For the sake of brevity, I will here spare the full history and details of the appointment and nomination fights (Bork, etc.) as well as the setbacks over the decades. (Casey, for example, which pro-lifers hoped would be the case that overturned Roe; instead the Court upheld Roe’s essential ruling, but substituted the trimester scheme with a viability standard and a new “undue burden” test.) Suffice it to say that the gains for the pro-life movement were made gradually (with the appointments of Thomas, Roberts, and Alito), until Trump’s first term appointments were swiftly seated in a mere three-year span: Gorsuch, Kavanaugh, Barrett. With this current Court, a majority of the justices are originalists.
Originalists adhere to the judicial philosophy of original meaning—what a law’s text meant at the time it was ratified—in their interpretation of that law. They do not read into a text, such as the Constitution, an interpretation that was never understood to be there, and thus they don’t create new rights that reflect their own beliefs and wishes, as do those of a progressive (“evolutionist” or “living-Constitutionalist”) inclination. An “abortion right” was never understood to exist in the Constitution before Roe, and so an originalist approach refuses to recognize one. Originalists on the bench, therefore, were a boon to the pro-life cause because, first, they could be trusted not to expand the putative “right” to abortion found in Roe, and second, they might even someday correct the activism of the Roe Court by overturning it using an originalist approach.
In our system of government, everything done ultimately originates from the people themselves. The Framers set up two political branches, the legislative and executive, to reflect this political philosophy of popular sovereignty and self-government. The judiciary, meanwhile, is meant to be a passive institution, the brakes on the vehicle of state. Modern history illustrates progressive-liberal jurists taking the wheel and putting the gas to the floor, driving us in a direction they feel is best, and thereby usurping the powers and functions of the other two branches, unbalancing the traditional constitutional order of our government. Judicial activists have reared their heads, of course, for as long as there has been a judicial apparatus, American or otherwise, but the last seventy-five years or so in this country have been marked by a quiet coup. Originalism then, reemerging in the 1980s, is an attempt to meet and wrest control away from these self-appointed judicial tyrants, namely by employing judicial restraint rather than judicial activism. I say “reemerging” because originalism is not an ’80s phenomenon, but is ancient orthodoxy that had fallen out of (or more precisely, had been pushed out of) orthodoxy in powerful legal and judicial circles. This resurgence of originalism was led by, among others, the late, great Antonin Scalia, who at the time of his entering the national spotlight, was but a voice crying in the wilderness; now, and largely due to his efforts, originalism has returned to preeminence on our highest court and has consequently become the bogeyman of the left.
This current Court lineup, a long time coming, was by no means inevitable. Groups like the Susan B. Anthony List, led by Marjorie Dannenfelser, were focused exclusively on electing pro-life politicians to influence the work of the courts, and were complemented by groups like the Federalist Society, led by Leonard Leo, helping to network judicial appointees by compiling lists of potential nominees for executives to draw from and legislators to familiarize themselves with. Together these efforts resulted in all three branches’ gradually reflecting an originalist disposition, better restoring the proper role of each branch to its constitutional duties. The common ground for both sides of this effort was a contempt for judicial activism, whose most infamous expression was Roe v. Wade.
Why the Court Had to Change
But changing the Court was not always the path for taking out Roe. The early focus of the pro-life movement in the 1980s was a constitutional amendment (there were various ones proposed) that would have simply returned the question to the states at the least, or would have undone the damage of Roe by acknowledging the personhood of the unborn. But amending the Constitution is incredibly difficult, and so when that effort failed in the summer of 1983, that strategy was put back on the shelf and the much more difficult incremental strategy of amending the Court was begun.
But even if the best, most protective of these various amendments had been ratified, it still would have left unresolved the issue of judicial activism. In other words, a constitutional amendment is no protection at all to the people so long as the Supreme Court has the authority to decide what that amendment means. What is more important than anything is to have sane and honest individuals seated on the bench. So, as history makes clear, although the strategy of changing the Court was indeed more difficult, it was nevertheless well worth the decades-long struggle that resulted in Dobbs, which was not just a triumph for the pro-life cause, but also marked a restoration of the Court’s commitment to originalism and judicial restraint. And now we have a Court issuing legitimate (i.e., originalist) decisions on a regular basis. No matter one’s personal feelings about individual rulings or dissatisfaction with them, we can rest assured that they are founded on precedent, on history and tradition, and not driven by political or ideological motives.
The Next Challenge
Conservatives are indebted to those who fought for the soul of the Court. It was their staunch opposition to the tragedy of abortion in general and Roe in particular that provided the fuel that sustained the decades-long struggle to restore an originalist Court. By purging the unelected Supreme Court of judicial activists, they ushered in a return to a Court bound by the letter of the law—the law enacted by a legislature accountable to the people.
Yet there is still work to be done. It is our job as citizens to vote for representatives who will pass legislation that may provoke litigation that very well might provoke a willing Court, when presented with a petition, to hear that future case and issue a sound future ruling. This future, of course, has yet to arrive, and much is uncertain. What is clear, however, is that in a political society where the people are properly the originators of all things, there is no such thing as a “settled” issue.
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