Some moments freeze themselves in your mind. I remember a day in Washington, D.C., during Sandra Day O'Connor's 1981 hearings to determine her fitness to serve on the U.S. Supreme Court.
The right-to-life crowd was tramping up and down the sidewalks with their signs decrying Roe v. Wade, the 1973 case that protected women's constitutional rights to have an abortion. The crowd was belligerent, intimidating. To many of these wowsers, the battle against abortion was--and remains--a cause worth dying for.
As they marched, they kept shouting to people passing by about the scandal of the Roe v. Wade decision and how it must be overturned. They didn't trust O'Connor, President Ronald Reagan's nominee from Arizona, who had refused under oath to state how she would vote on abortion. I twisted and dodged my way through the crowd to get into the hearing. But before I pushed open the door to the building, I turned around to take one last look at the crowd.
On the edge of the mob, I spotted a short, quite slim man. He was making his way through the crowd with his eyes averted. I recognized him at once. It was U.S. Supreme Court Justice Harry Blackmun, then 72, the author of the 7 to 2 majority opinion in Roe v. Wade that made legal abortions available to American women.
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Not one of the demonstrators recognized Justice Blackmun. And he made no effort to stop and introduce himself. Here was the one man this unruly group would have loved to confront. And there he was, ambling directly through its ranks, on his way to work at the U.S. Supreme Court building, just a few minutes' walk away. I have always remembered it as a moment of supreme irony.
Judge O'Connor's hearing ran for several days, but there was never any serious opposition. It was a love-in, with even Arizona Democrats backing the appointment of the first woman in the history of the court.
We have since learned that her nomination was sealed in a 45-minute meeting with Reagan when the two discovered their mutual love of horseback riding. Those close to Reagan said the president asked O'Connor how she felt about abortion and she told him she was personally opposed to it. That was enough for Reagan. He never pressed the issue further.
Those were the days when Reagan could do no wrong. Moral Majority leader Jerry Falwell did pop up to say: "All good Christians should be concerned about the O'Connor appointment."
But Barry Goldwater, then senior senator from Arizona, shot back: "Every good Christian ought to kick Falwell right in the ass."
Last week O'Connor formed a coalition with justices David Souter and Anthony Kennedy to deliver a surprisingly sensitive opinion as to why it is necessary for the Supreme Court to continue to adhere to Roe v. Wade as a precedent.
Their actions, combined with those of justices Blackmun and John Paul Stevens, kept Roe v. Wade alive, 5 to 4. In this opinion, the three justices pointed out how it would be wrong to overrule "under fire." They would be overturning a decision that has not been shown to be wrong. It would also be seen as knuckling under to political pressure.
They wrote of "a terrible price" that would have to be paid. It would be a move which the public would interpret as an example of justices being no different from politicians.
Several sections of their opinion are worth remembering:
"An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions." Further explaining their stand, they wrote:
"A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today."
Blackmun called the unusual joint opinion offered by justices Souter, Kennedy and O'Connor "an act of personal courage."
The justice who has seen his initial opinion attacked for two decades struck back directly at Chief Justice William H. Rehnquist, who has been leading the charge for two Republican presidents.
"The Chief Justice's criticism of Roe follows from his stunted conception of individual liberty," Blackmun wrote. Still to come, however, were his most poignant thoughts on the matter. "I fear for the darkness as four justices anxiously await the single vote necessary to extinguish the light," Blackmun wrote.
"I am 83 years old. I cannot remain on this court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.
"That, I regret, may be exactly where the choice between the two worlds will be made."
We have a Supreme Court that is only one more Justice Clarence Thomas away from the overthrow of Roe v. Wade.
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