The draft Supreme Court opinion that could overturn Roe v. Wade — obtained and published by Politico but not yet final — would be a seismic change
The draft Supreme Court opinion that could overturn Roe v. Wade — obtained and published by Politico but not yet final — would be a seismic change in American jurisprudence, with massive implications for reproductive rights. So how did Republicans get in the position where they could pull it off?
It’s a lengthy, half-century saga that involved setbacks, political power plays, and some pure luck.
Much of what got the country to this point hinges on the identities of the nine specific people sitting on the Supreme Court: their personal views, decisions to retire, or their untimely deaths. Much also hinges on elections, namely, who’s in control of the presidency and Senate at the right time. The political power of the anti-abortion and pro-abortion movements within their respective parties is also key: Can they bend the president to their will?
Three decades ago, Republicans came within a single vote of getting Roe overturned in the Supreme Court’s 1992 Planned Parenthood v. Casey decision. But they were thwarted, in part by the idiosyncrasies of the justices their own president had nominated, in part because Democrats controlled the Senate at crucial moments, and in part because the conservative legal movement simply wasn’t yet as powerful within the GOP as they are now.
As recently as early 2016, Republicans seemed in danger of losing their majority on the Court altogether. But a stunning confluence of circumstances over the next few years put the country on a very different trajectory. Trump won the presidency, Republicans held the Senate, anti-abortion activists were powerful enough to force the appointment of more reliable conservatives, and Ruth Bader Ginsburg died months before Trump left office. The rights of millions may hinge on such contingent events.
Roe looked like it was doomed in 1992, but it survived another 30 years
The Supreme Court handed down its 7-2 Roe v. Wade decision protecting abortion rights in 1973. After that, the conservative backlash brewed. The parties polarized around the issue of abortion, with anti-abortion activists (often Catholic or evangelical Christian) demanding Roe be overturned, and Republican presidential candidates saying they agreed.
Those GOP presidential candidates won their elections. After Democrat Jimmy Carter’s one term in office (during which no Supreme Court vacancies opened up), Ronald Reagan and George H.W. Bush locked down the presidency for 12 years. They got to fill five Supreme Court seats in that span, and all of these appointees replaced retiring pro-Roe justices.
So by the time the Planned Parenthood v. Casey case brought abortion rights back in front of the Supreme Court in 1992, the math did not look good for Roe.
Yet it survived by a single vote, in a 5-4 ruling. And three Republican appointees turned out to be crucial in saving it.
Reagan came to office with a Republican-controlled Senate, but he picked the moderate Sandra Day O’Connor as his first nominee because he prioritized appointing the first woman justice over conservative credentials.
Democrats retook the Senate in the 1986 midterms, and when a seat opened up in 1987, they used the power of their majority to reject another Reagan nominee, the conservative Robert Bork. So Reagan ended up nominating Anthony Kennedy instead — a fateful switch.
Finally, Bush nominated David Souter in 1990, in part because his lack of a “paper trail” of controversial conservative statements would make him easier to confirm in the Democratic Senate.
If O’Connor’s, Kennedy’s, or Souter’s seat had been filled by a staunch conservative, like Antonin Scalia or Clarence Thomas, who were also confirmed during this span, Roe would have been overturned in the 1992 Casey case. And the past 30 years of politics would have been quite different.
In part, this outcome hinged on the personal quirks of these appointees. But it also wasn’t an accident that Republicans kept failing to get further-right-leaning justices confirmed. On one hand, the conservative legal movement hadn’t yet attained enough power to fully control GOP presidents’ appointments. On the other hand, the Democratic Senate forced Reagan and Bush to compromise on several nominees.
The chaos that unfolded beginning in 2016 set the stage for Roe’s demise
Starting in the Clinton administration, the Court fell into a delicate balance that held for more than two decades. There was a majority of five conservative justices and a minority of four liberals, but the swing votes sided with liberals on certain key issues. President George W. Bush replaced O’Connor with the more conservative Samuel Alito in 2006, but Kennedy remained in the swing vote position for more than a decade after that.
Retiring justices were usually replaced by people who ideologically resembled them. The four Democratic appointees confirmed during this period were consistently in favor of abortion rights.
So Roe lived on until 2016 shook up that balance.
The death of Antonin Scalia opened up a new Supreme Court seat while Barack Obama was president. If the conservative Scalia could be replaced with a liberal, the balance of the Court would tip. There would now be five solid liberals, the first outright liberal majority in a half-century.
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 recently increased to a startling level.
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.)
So McConnell’s Republicans kept the seat open. And then Donald Trump won the presidency in 2016, while the GOP held the Senate.
By this point, conservative legal movement activists had gained total dominance of their party on this issue, and Trump made it clear he would only put up nominees who had the enthusiastic support of the Federalist Society.
First, Trump kept Scalia’s seat in conservatives’ hands by appointing Neil Gorsuch. Then he got to replace Anthony Kennedy, a Roe defender, with Brett Kavanaugh. The court remained 5-4 in favor of conservatives, but the swing vote — Chief Justice John Roberts — was now further to the right.
Depending on how Roberts eventually votes in Dobbs, that might have been enough to gut Roe, but CNN reports that he has been reluctant to outright overturn the precedent. So to fully clear Roe away with an emboldened opinion, one more justice, a 6-3 conservative majority, was necessary. That materialized when Ruth Bader Ginsburg died in September 2020, opening up a seat Trump filled with Amy Coney Barrett.
There are so many ways this could have turned out differently. Most obviously, if Hillary Clinton won the 2016 election, Trump would not have gotten to fill those seats when he did. If Ginsburg had stepped down before 2014, a Democratic Senate could have replaced her. If Democrats had held the Senate in 2014, they could have confirmed a liberal justice to replace Scalia. If Democrats had retaken the Senate in 2018, they could have held Ginsburg’s seat open.
But Republicans won key elections at the right time, and the conservative legal movement had developed such an iron grip on the party that it could reshape the Court exactly how it wanted. It did. And we’re only just beginning to understand the consequences.