The Judicial Bookshelf

Abstract

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice’s decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next Term, I shall retire from regular active service as an Associate Justice... effective the next day afterthe Courtrises forthe summerrecess this year.”1 His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again. Many who follow the Court closely prob­ ably grasped the significance of the depar­ ture of this Justice who had taken his seat on December 19, 1975. President Gerald R. Ford had nominated him on November 12 to fill the vacancy created by the retirement of Justice William O. Douglas after thirty-six years of service. Indeed, Douglas had shat­ tered the record long held by Justice Stephen J. Field, who sat for thirty-four years and nine months, between March 1863 and December 1897. Stevens’ tenure, stretching across thirtyfour years and six months, even surpassed Jus­ tice Hugo L. Black’s thirty-four years and one month.2 The American political system underwent major changes between Justice Stevens’ ar­ rival and his departure. As evidence, one need look no further than thejudicial confirmation process itself. The hearings before the Sen­ ate Judiciary Committee on the Stevens nom­ ination filled three days in December 1975.3 Alongside proceedings for more recent nom­ inees to the High Court, the hearings for him merit a revisit. Senators seemed nearly as concerned about his health—Stevens had had heart surgery in the summer of 1974— as his approach to constitutional interpreta­ tion. Although Roe v. Wade,4 the landmark abortion ruling, had come down in February 268 JOURNAL OF SUPREME COURT HISTORY 1973, no Senator queried him about a woman’s constitutionally protected right to terminate a pregnancy. Discussion ofa constitutional right to privacy instead occurred in the context of criminal justice, particularly with respect to searches and seizures and electronic surveil­ lance. As surprising as it may seem today, the near invisibility of abortion as an issue in the hearings5 in one sense merely reflected the times. Abortion had remained largely in the background as an election issue in 1972. Neither party platform mentioned it, although Democrats considered and voted down 1,570 to 1,103 a minority plank favoring abortion rights. Republican Richard Nixon was already on record in opposition to “abortion on de­ mand” but advocated no action by the fed­ eral government. In separate statements dur­ ing in the winter and spring of 1972, Democrat George McGovern spoke ofabortion as “a pri­ vate matter which shouldbe decided by a preg­ nantwoman and herown doctor.” Nonetheless, he believed that abortion was “a matter to be left to the state governments,” which had “sole jurisdiction.”6 Even as late as the year before Roe came down, abortion seemed to be a sub­ ject presidential politics should largely avoid. That rule tended to characterize much of the 1976 campaign as well. With Ford and Jimmy Carter heading their respective tickets in 1976, afterRoe had come down, neitherpro­ abortion nor anti-abortion activists couldpoint to an outspoken champion. Carter personally disapproved of abortion but opposed a con­ stitutional amendment to end the practice, as did Republican incumbent Ford. Instead, Ford favored the status quo ante—an amendment that would return abortion policy to the states. Of major contenders for the Democratic and Republican nominations in 1976, only Ronald Reagan was uncompromising in his criticism ofpolicies that countenanced abortion...