The Court's Personal Path to Roe v. Wade This week marks the 35th anniversary of Roe v. Wade, the Supreme Court ruling that legalized abortion. As legal analyst Jeffrey Toobin reports, the current justices are deeply divided over the issue.


The Court's Personal Path to Roe v. Wade

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It was argued on December 13th, 1971, reargued on October 11th, 1972, and then decided on January 22nd, 1973. That's Roe versus Wade. Now, all across the country this week, there were celebrations and protests of the decision in favor of a pregnant woman who challenged the constitutionality of the Texas criminal laws outlawing abortion.

Seven of the nine justices agreed that the state's position was vague and overbroad, infringing on the plaintiff's 9th and 14th Amendment rights. Now, not one of those justices is still on the Supreme Court. The current nine all have arrived at their position on abortion from, well, very different places. And with the elections just 284 days away, the next president could very well appoint a justice that could change or uphold Roe versus Wade.

Joining us now is Jeffrey Toobin, author of "The Nine: Inside the Secret World of the Supreme Court." Welcome back, Jeff. I'm obsessed with your book. I'm just going to say that upfront.

Mr. JEFFREY TOOBIN (Senior Legal Analyst, CNN; Staff Writer, The New Yorker; Author, "The Nine: Inside the Secret World of the Supreme Court"): Well, I couldn't be happier. Hi, Alison. Hi, Toure.


TOURE: What's up.

STEWART: So in chapter three of your book, you wrote: there were two kinds of case before the Supreme Court. There were abortion cases and there were all others. So let's talk about what's been the most recent and the most successful challenge to Roe versus Wade.

Mr. TOOBIN: Well, that was just last year, and I think it was really a sign of how the two Bush appointees have really changed the court dramatically. It was a challenge to a federal law passed in the early days of the current Bush administration that banned a certain kind of abortion.

It's sometimes called a late-term abortion. It's sometimes called partial birth abortion. And the court, by a vote of five-to-four, said this law was constitutional. It approved the law. And in the language of Justice Kennedy's opinion, there was - there were many hints that any constitutional protection of the right to abortion is really hanging by a thread right now.

STEWART: Well, let me break this into two groups, and correct me if I'm wrong. Now, the justices who would likely uphold Roe v. Wade are Ginsburg, Breyer, Souter and Stevens.

Mr. TOOBIN: Correct.

STEWART: And the justices who would vote, in a way, to weaken or overturn Roe versus Wade: Roberts, Alito, Scalia, Thomas and Kennedy, with some - with an asterisk.

Mr. TOOBIN: Well, I would say Kennedy with an asterisk.

STEWART: All right. So let's talk about the different philosophies. I do want to start with the most recent addition to the court, Justice Samuel Alito. Now, he was part of that huge challenge to Roe versus Wade in '92, way before he had thoughts of the Supreme Court. Explain to people what role he played there and what his thought process was.

Mr. TOOBIN: Well, he was a young lawyer in the solicitor general's department, which is part of the Justice Department, in the Reagan administration. And he was one of the young lawyers who came to Washington to help with this conservative movement that Ronald Reagan led.

And in the course of his work, he wrote several memos, not just reflecting Justice Department policy, but his own preferences, trying to get a promotion in 1985. And he made very clear that he thought Roe versus Wade was wrong, and he was very proud of his efforts to try to get the decision overturned.

Now, those efforts were unsuccessful in the '80s, but I think it's totally clear where Alito is coming from on Roe v. Wade.

STEWART: Now, Ruth Bader Ginsburg and her former fellow female justice, Sandra Day O'Connor, they seem to base their arguments about Roe versus Wade on equal rights and about the law being too paternalistic. Can you explain that?

Mr. TOOBIN: Right. Well, this - see, this is where things get a little murky, and I think it's important - you know, the Roe versus Wade is not the only way you can protect the woman's right to choose abortion. And the way Roe versus Wade is written - Harry Blackmun, a Nixon appointee, wrote it in 1973 and he said laws banning abortion violate a woman's right to privacy, her relationship with her doctor.

That is something that the law infringed on. And Ginsburg, going back to the '70s when she was a law professor, said, you know, I don't really buy this. I don't think abortion has anything to do with privacy per se. She thinks that if the state forces a woman to continue a pregnancy against her will, that is a form of sex discrimination. That is a violation of equal protection of the law and violation of the 14th Amendment, and that's how she sees this legal matter.

So - and in her dissenting opinion in this decision from last year, she wrote this very passionate opinion, saying, you know, this is not about privacy and a woman's right to talk to her doctor. This is simply a matter of women deciding their own medical future. And all four of the dissenting justices shared that, you know, signed that opinion. But, you know, four justices - that ain't a majority. So…

STEWART: Right. And Sandra Day O'Connor, she was always sort of a swing vote. She didn't like a certain provision in the Pennsylvanian challenge, the one that then-lawyer Alito worked on that said you have to notify your husband if you're getting an abortion.

Mr. TOOBIN: Right. I mean, you know, O'Connor was such a fascinating justice because she had this incredible radar for where American public opinion was. And she was, I think it's safe to say, more sensitive to slights against women's rights than she was against the African-Americans' rights.

And there was a provision in the 1992 law, in the famous Casey decision, where Roe was not overturned, although many people expected it would be. And there was a provision of the law that said if a pregnant, married woman wanted to get an abortion, she had to prove that she had informed her husband of that decision.

And O'Connor wrote the part of the opinio, saying that was unconstitutional, paternalistic, outrageous and not something that she would approve. Interestingly, the lower court judge, as you pointed out, who had upheld that provision, was Samuel Alito, again, giving you a sense of where he is on the issue.

TOURE: Jeff, let's look into the future into the crystal ball. Who is probably the next justice to leave the court?

STEWART: Stevens, right?

Mr. TOOBIN: It - well, you know - if you look at the actuarial tables, it's got to be Justice Stevens. He's 87 years old. Now, I hasten to add, Justice Stevens' older brother, William Stevens, who's 90, is still practicing law in Florida. So, you know, it's a very good gene pool in the Stevens family.

But, hey, you know, 87 is 87, and I think you have to expect that Stevens will be the next to go. And he is, you know, one of the more liberal justices. So that speaks for itself.

STEWART: Hey, Jeff, can we get extra five minutes with you?

Mr. TOOBIN: Certainly.

STEWART: All right. Stick around everybody. We're talking to Jeff Toobin, the author of "The Nine." We'll talk a little bit about Clarence Thomas, Antonin Scalia and the Rehnquist legacy. Well, we're talking about Roe versus Wade.

Stay with us here on THE BRYANT PARK PROJECT from NPR News.

(Soundbite of music)

STEWART: Thank you for listening to THE BRYANT PARK PROJECT from NPR News.

We're continuing our conversation with Jeffrey Toobin, author of "The Nine: Inside the Secret World of the Supreme Court." We're talking to Jeffrey about how the current Supreme Court justices all arrive at their judicial philosophy about Roe versus Wade. Of course, it's the 35th anniversary of the passing of that law, making abortion legal in this country.

So let's go into the folks who would likely weaken or overturn Roe versus Wade. One of the strongest opponents was the former Chief Justice William Rehnquist. Obviously, no longer in the court, but the man who took his place, John Roberts, used to be one of his clerks, wasn't he?

Mr. TOOBIN: He was in 1980 and '81. Roberts, you know, went to great, great lengths during his confirmation hearings, not to sort of express an opinion on the future of Roe. But if you look at Roberts' opinions in his first two years on the court, I don't think there is a doubt in the world that he would vote to overturn Roe. The - he has been a wall-to-wall conservative. There has not been a single vote on any major issue where he suggests any kind of moderation. I mean, he is a true-blue conservative.

STEWART: And what does he base his philosophy on?

Mr. TOOBIN: Well, I - you know, it's not entirely clear whether...


Mr. TOOBIN: ...he is what's called an originalist, the way Thomas and Scalia are...

STEWART: Oh, we'll talk about them in a minute.

Mr. TOOBIN: Thomas and Scalia basically say that you have to interpret the Constitution the way it was meant by the framers of the Constitution in the 18th century. And that means that you sort of do mind-reading of what James Madison and all thought - about what their words meant, and then apply that to the modern world.

Roberts has distanced himself somewhat from that philosophy, although his conservatism basically reaches almost always the same results as Thomas and Scalia. He basically thinks the court should stay out of most legislations, stay out of - if a legislature wants to pass a law, he almost always is going to uphold it, unless the legislature is trying to do something liberal like integrate the schools of Seattle and Louisville, which he didn't like. But I mean, it's a kind of juridical restraint when it comes to individual rights.

STEWART: All right. We talk about Justice Stevens, oldest member of the court, likely to be replaced by the next president, and that he is fairly clear about Roe versus Wade…

Mr. TOOBIN: Well, Alison, I mean, just to add about it. I mean, I think the next three justices to leave are likely to be three of the four liberals.

STEWART: All right.

Mr. TOOBIN: It's not just Stevens who's likely to leave. It's Ginsburg who's 74.

STEWART: Mm-hmm.

Mr. TOOBIN: It's Souter who's 69 and really doesn't like the job very much.

So, I mean, we - if a Republican is elected and serves eight years, you're looking at the prospect of probably seven strong conservatives on the court.

STEWART: I do want to get to Justice Kennedy because we said he was a person who could vote to weaken or overturn Roe versus Wade. But there is an asterisk to Kennedy who is a Catholic, but has made some very interesting choices.

Mr. TOOBIN: You know, he is such a quirky, interesting justice. He - yeah, he is Catholic. He was appointed by Ronald Reagan. But in, you know, the - a climactic moment of his career in 1992, when everyone expected that he was going to vote to overturn Roe. He was the principal author of the decision in Casey, where he upheld what he called the core of Roe versus Wade, where he basically said, look, this decision has, at this point, been around for almost 20 years. We are not going to disturb it. States can't ban abortions.

Now, over the subsequent 15 years, he has somewhat weakened that view. He - and he was the author of this decision last year, upholding the federal ban on some forms of abortion.

So I still believe that Kennedy will never vote to outright or overturn Roe v. Wade or allow a state to ban abortion, but he certainly more willing to uphold restrictions on abortion than any of the liberal justices.

TOURE: Jeff, I want to go back a second to what you said. We don't have that much more time, but you said Justice Souter does not like the job. This is one of the greatest jobs in the world. How could someone not like it?

Mr. TOOBIN: Well, he's a quirky guy. I mean, this is a guy who doesn't have a cell phone, who doesn't use a computer, who writes with a fountain pen, who doesn't even like electric light, who moves his chair around his chambers to catch the natural light coming through the window all day. He's never heard - he had never heard of Diet Coke when he arrived at the court. He's never heard of the singing group The Supremes. I mean, David Souter does not live in the same world you and I live in, Toure. I mean, he is so…

TOURE: Before the Supreme Court, he lived with his mother, right?

Mr. TOOBIN: Actually, he did not live with her. That's it. She lived nearby. He lived, in - he still lives in the house where they grew up. But, you know, he is a quirky guy. I mean, he basically likes to be in New Hampshire. He hates Washington. I mean, the core, he doesn't really mind the work, but Souter hates Washington. And, you know, he is not someone who spent his life scheming to get on to Supreme Court. And, you know, he is not someone who spent his life skimming to get on the Supreme Court. And, you know, he feels like he has been on the court. It will soon be 20 years. And he thinks enough is enough. He doesn't want to be 87, the way Stevens is, and be a Supreme Court justice.

Now, he also, I think, recognizes that a Republican president would undo much of what he believes in. So we'll see if he actually leaves during a Republican administration. Even though he was appointed by the first President Bush, he has become a member of the liberal wing of the court. But you know, he is not someone as predictable as the others, and I think he may someday say the hell with it.

STEWART: Jeffrey Toobin, staff writer at the New Yorker, CNN's legal analyst - senior legal analyst, and author of "The Nine: Inside the Secret World of the Supreme Court."

Hey, Jeff, thanks. Big thanks.

Mr. TOOBIN: Sure thing. Bye, guys.

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