The Nine [8]
But while Roe commanded a majority of seven justices in 1973, the decision in Thornburgh was supported by only a bare majority of five in 1986. So within the Reagan administration, the lesson of the case was obvious—and one that conservatives took to heart. They didn’t need better arguments; they just needed new justices.
Reagan himself had little interest in the legal theories spun by his Justice Department. He had long been on record as opposed to legalized abortion, but the president was manifestly uncomfortable with the subject as well as with the most zealous advocates in the prolife cause. So when, early in his first term, he received the unexpected resignation of Potter Stewart, the president’s first reaction was less ideological than political. He wanted above all to fulfill his campaign promise to appoint the first woman to the Court, with her precise stands on the issues a distinctly secondary concern. After searching the small pool of Republican women judges, Reagan selected the thoroughly obscure Sandra Day O’Connor in 1981. O’Connor’s ambiguous record on abortion meant that the evangelical wing of the Republican Party regarded her with hostility; Jerry Falwell, then the leader of the Moral Majority and a key figure in Reagan’s election, said “good Christians” should be concerned about O’Connor. But at this point, Falwell and his colleagues did not yet control the Republican Party, much less the presidency, so Reagan ignored their complaints. And true to form, O’Connor in her first abortion cases, like Thornburgh, tread cautiously, voting to uphold restrictions but never committing to an outright reversal of Roe.
Reagan’s reelection emboldened the hard-core conservatives in his administration, especially when it came to selecting judges. This was largely because William French Smith, the bland corporate lawyer who was attorney general in Reagan’s first term, was replaced by Meese, who put transformation of the Supreme Court at the top of his agenda. Soon, Meese had his chance. In 1986, just days after the decision in Thornburgh, Burger resigned as chief justice. Reagan’s first move was an obvious one. During his fourteen years on the Court, William Rehnquist had grown from being an often solitary voice of dissent to the leader of the Court’s ascendant conservative wing. Just sixty-one years old, and popular with his colleagues, he was the clear choice to replace Burger as chief. But who, then, to put in Rehnquist’s seat?
Meese considered only two possibilities—Scalia or Bork, both waiting impatiently for the call in their nearby chambers at the D.C. Circuit. Both were real conservatives, not “squishes,” as young Federalist Society lawyers referred to Harlan, Stewart, and the other moderate conservatives. Bork had virtually invented originalism as an intellectual force, and he had been a vocal spokesman against almost every Supreme Court landmark of the past two decades—especially, of course, Roe v. Wade. Nine years younger, Scalia had a nearly identical ideological profile, if not quite as distinguished an intellectual pedigree. For his part, Reagan was taken by Scalia’s gruff charm and liked the fact that Scalia would be the first Italian American on the Court. The Democrats, who were a minority in the Senate, decided to concentrate on stopping Rehnquist from becoming chief justice and so gave Scalia a pass. He was confirmed unanimously, while Rehnquist won anyway by a 65–33 vote. At the same time, Bork