roe v. wade and right to choose and justice harry blackmun and justice william rehnquist and justice potter stewart and lochner and the ghost of lochner

The Ghosts of Lochner. This isn't the title of a horror movie playing down at the local Regal Cinemas, but was one playing in the chambers of the Justices' minds as they decided this case.*

[*The case was argued in December 1971 but was re-argued in October 1972, with decision in January 1973. Rearguments are rare today, but not unknown.]

The "modern" way of dealing with the Lochner problem is to call it "substantive due process," and it refers, most basically, to a court's substituting its judgment for the legislature in invalidating a law it doesn't like. The "lesson" the Court was supposed to have learned from the Lochner fiasco, where the Court invalidated a health and safety regulation from NY State, was that when it had to do with economic and social legislation, you defer to the wisdom of the state legislature. You don't look at the decision as an occasion to bring your own wisdom to bear, to decide if you like this or that statute. Substantive due process, then, means the return of the Lochnerian desire to invalidate state statutes based on the Court's becoming a sort of "super legislature."

Stewart's Concurrence

Justice Potter Stewart had the effrontery or courage, depending on your perspective, to point out that in 1963 the Court had, in no uncertain terms, repudiated substantive due process but had, two years later (in Griswold) actually relied on the due process clause to invalidate a state statute. In other words,

"it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment. [FN3] As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such" (168).

Stewart is a good enough foot soldier to realize that once the Court has established a new precedent (and he dissented in Griswold), he needs to hew to precedent. Thus, for the rest of his concurrence, he finds quotations in various opinions, especially by the recently-retired Justice John Marshall Harlan, about the breadth of the meaning of liberty in the Constitution. As he frames it: "Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment" (169). If the Court holds that parents' rights to send their children to schools of their choice is implicated in this "right to privacy" or the "liberty interest" of the Fourteenth Amendment, then the right to procure an abortion, a much more intimate right, must also be protected. For Stewart, then, the right to privacy is now firmly fixed as a constitutional doctrine.

Rehnquist's Dissent

President Richard Nixon, before the floods came and took him away, appointed both Harry Blackmun and William Rehnquist to the Court. Rehnquist had been Robert Jackson's law clerk in the early 1950s, and had come from the prestigious Office of Legal Counsel in the DOJ to the Court late in 1971 when he was still in his 40s. He was pegged as a "brainy conservative" who was appointed to attempt to "roll back" some of the rights mania that seemingly had overtaken the Warren Court. I cite Rehnquist's dissenting opinion here in detail because the language of some of it is now spoken on the sidewalks or, at least, in the language of common speech in America, especially as it relates to the role of judges in our constitutional democracy.

After faulting the majority for not looking into whether Roe herself was in the first trimester of her pregnancy (and therefore at a time when no state abortion restrictions would have been legitimate), he moved to his substantive concerns. His principal concern is that the Court's weighing of factors is akin to a legislative determination regarding the "wisdom" of a statute. "The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective" (173). Indeed, the Due Process Clause of the 14th Amendment places some restrictions on the TX's legislature's ability to enact a statute such as this,*

[*What isn't clear from Rehnquist's dissent is whether he sees the TX statute and other anti-abortion statutes as species of "social and economic" legislation or more intrusive "personal liberty" types of statutes. He seems to see it as an example of the former].

"But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one" (173).

Then he pointed out the implication of the Court's importing the "compelling state interest" test into 14th Amendment Due Process cases.

"But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the 'compelling state interest test,' the Court's opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it" (173).

Lochner Again

Then, he lays out the implication of adopting the "compelling state interest" test in Due Process cases. "The adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be 'compelling'" (174). Judicial recognition of a trimester framework partakes more of "judicial legislation" than it does of a determination "of the intent of the drafters of the Fourteenth Amendment."

By this point, Rehnquist has said it all. Lochner lives in the majority's opinion, no matter how much they would like to cabin their analysis to issues relating to the "right of privacy." The Court has become more like a legislature than a Court. And it is this latter phrase, the idea of "legislating from the bench" that then rose from the dust of the dissent and took wing into American speech. Now it goes without saying, among conservatives and many liberals alike, that the role of the judge is "to interpret" and not "to make" the law. We hear that on the streetcorners, from the mouths of pundits, from the words of politicians and judges alike. Judges ought to judge and not to legislate. We can thank William Rehnquist and his patient work over the next three decades for bequeathing to all of us a judicial philosophy that really was quite foreign to that of those that decided Roe.

Conclusion

That, fundamentally, is the reason why liberals are troubled today. They know that we live in a different judicial era than the one which decided Roe, but they desperately want to maintain the precedent of Roe. The whole world, or at least the Senate Judiciary Committee, will be focusing on this issue now. I wonder if this is what Harry Blackmun imagined when he slowly and laboriously was working on the opinion and research at the Mayo Institute 33 summers ago.

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