September 16, 2005 at 12:32pm
A Fascinating History of
Roe v. Wade
in the Supreme Court,
David Savage in the
. Thanks to reader John Judge for the pointer.
Dylan Alexander (
I thought all of Mickey Kaus's moaning about the awfulness of the LA Times was an exaggeration, but if it takes someone else to point out to you two days later that it ran an interesting article on
Amazing is a better word.
Wait a minute. I thought Roe v. Wade was a decision made by George Washington on the bank of the Potomac.
Here's the accompanying comment that accompanied my pointer to Professor Volokh:
Savage's LA Times Article. Old saying: one shouldn't see sausages or legislation being made. My addition to old saying: If you want to preserve your illusion that courts have decided constitutional law cases correctly for the last 40 years, you shouldn't see how the cases' opinions got written, particularly the Roe v Wade opinion. My addition is prompted by David G. Savage's very informative article in the 09/14/05 Los Angeles Times "Roe Ruling: More Than Its Author Intended." Savage bases his article on Justice Harry Blackmun's papers, opened in 2004--five years after Blackmun's death.
When the Roe opinion was written, Blackmun was "a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them." The Supreme Court was a "sometimes rudderless court led by Chief Justice Warren Burger. On the day the ruling was announced, Burger said, 'Plainly, the court today rejects any claim that the Constitution requires abortion on demand.' Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. 'I fear what the headlines may be,' he wrote in a memo. His statement, never issued, emphasized that the court was not giving women 'an absolute right to abortion,' nor was it saying that the 'Constitution compels abortion on demand.'" (Quotations not otherwise attributed [i.e., ""]quote the Savage article.)
The article describes a myriad of fortuitous events coming together to produce the opinion, with nobody understanding that it would result in abortion on demand. The article must come as a terrible jolt to many people. Some people act as if Blackmun received the Roe opinion directly from the Oracle of Seneca Falls.
Wider Discussion Needed. I've been disappointed that I've seen so little discussion relating to the Savage article in the blogs. Additionally, there's been almost no discussion within the MSM, but that's no surprise. If the Roe story becomes more widely known, it might take the wind out of some senators' sails when they commence their broadsides against the next Supreme Court nominee.
In the past, LA Times stories often didn't get the MSM attention they deserved, in part because Los Angeles is 3000 miles from the East Coast and three hours behind it. In the days of the Internet, that disadvantage should be greatly diminished. LAT stories were also often ignored by the MSM because the stories' subjects and points of view ran counter to liberal orthodoxy. When Otis Chandler was the LA Times's CEO (1960-1980) and later corporate chairman (1980s), the paper's point of view was quite balanced—a real rarity. For instance during the Vietnam War the paper ran many dovish opinion pieces but, as I recall, it ran just as many that were of the hawkish persuasion. Maybe the Savage article (and Michael Kinsley's recent resignation as editorial and opinion editor) foreshadows the LAT's return to the Center. That would be nice.