Brewing Up a Storm: The US Supreme Court Looks Likely to Overturn the Federal Law on Abortion. Nicholas Hill and Peter Ling Look at the Political Background to the Legal Argument

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WITH THE Christian Right's growing political influence, abortion divides Americans like few other issues. The Supreme Court is due shortly to rule on two cases, one from California, the other from Nebraska, and both claim that the actions of US Attorney General Gonzales under the 2003 Partial-Birth Abortion Ban Act are unconstitutional as they deny the fight to abortion granted under Roe v. Wade (1973). For conservatives, legal protection of abortion epitomizes the toxic legacy of 1960s' social policy. It is contrary to the ideal of deliberately limited government in American life as well as to religious principles. For liberals, Roe is part of the rights revolution, an extension of federal protection and of guaranteed equality, and thus reflects the same philosophy that underpinned the desegregation policy launched by the Supreme Court's Brown v. Board of Education (1954) decision.

As final interpreters of the Constitution, the Court's nine Justices will rule on the matter. Unelected, serving for life, and insulated from executive pressure and public backlash, their power to impose their own principles is potentially more sweeping and less accountable than any other branch of government. Each Justice is nominated by the President and confirmed by Senate vote after judiciary committee hearings. This process should reveal a nominee's true character, but senators can miss storm signals, as they did in the case of William Hubbs Rehnquist, who served on the Court for thirty-three years, fourteen of them as Associate Justice (1972-86), nineteen as Chief Justice (to 2005).

In 1971 the law backed desegregation as a means of ensuring racial equality through government action. The policy grew principally from the Supreme Court's Brown v. Board of Education decision that racially separate educational facilities were inherently unequal. This reversed the Court's position, first outlined in Plessy v. Ferguson (1896), that 'separate but equal facilities' were permissible. The Court's order for school districts to desegregate with 'all deliberate speed' was resisted vigorously, and further rulings were needed to implement it. In the less well-known but more important case of Green v. County School Board (1968) the Court declared that local education authorities had an 'affirmative duty' to ensure racial discrimination was 'eliminated root and branch'. Two years later, Swarm v. Charlotte-Mecklenburg Board of Education (1971) allowed federal courts to use broad measures to ensure integration or racial balance--including the controversial practice of bussing children to different schools.

Despite turbulence across the country over the nature of integration as a principle, and bussing as a practice, no Justice wrote a dissent over desegregation for nearly two decades after Brown. That calm ended when Rehnquist became an Associate Justice in 1972. Proposed by President Nixon, Rehnquist came before a nominally Democratic Senate that had tilted towards conservatism in the 1970 mid-term elections. Nevertheless, the Senate could have rejected him as they had rejected a previous Nixon nominee, Harold Carswell. Realizing that he was seen as being more to the right than Nixon, Rehnquist was studiously noncommittal at his 1971 confirmation hearings, but was pinned down on school desegregation. The hearings scrutinized Rehnquist's letter to his local Arizona newspaper in 1970 in which he had denounced desegregation proposals, complaining that 'Those who would abandon [the existing neighbourhood school system] concern themselves not with the great majority ... but with a small minority.' By small minority, Rehnquist meant, of course, Phoenix's African-American population. Quizzed by senators, Rehnquist admitted that his opinion was unchanged. While he appeared to accept the ending of de jure (legally imposed) segregation as required by Brown, he was evasive over de facto segregation (as a by-product of residential segregation). …