A People's History of the Supreme Court

by Peter Irons

  The next Monday morning, January 22, 1973, Chief Justice Burger led his colleagues through the red velvet curtain behind the bench precisely at ten o’clock. He could hardly have enjoyed presiding over the Court’s most momentous session since Earl Warren read his Brown opinion on Monday, May 17, 1954. Burger had joined the Roe decision at the last minute, reluctant to stand outside in dissent but equally reluctant to stand behind his boyhood friend’s most important opinion. Harry Blackmun had asked his wife, Dottie, to come with him that morning. After the opening rituals, Burger told the audience in his deep voice that decisions in the abortion cases would be announced. He looked impassively at Blackmun, who smiled at his wife, then began reading from an eight-page summary of his abortion opinions. He started with Roe v. Wade, and with an unusual statement. “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy,” Blackmun began, “of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.”

  Blackmun continued in this self-revelatory vein. “One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, arc all likely to influence and to color once’s thinking and conclusions about abortion.” This long sentence expressed the conflicts Blackmun had faced during the year he struggled with this opinion. He lived and worked in a comfortable, conservative world with happy, healthy children; but he knew that many pregnant women lived on “mean streets” where children went hungry, lacked medical care, and endured physical and emotional abuse. Harry and Dottie Blackmun had raised three daughters in their comfortable world, but he had learned a great deal about the “other America” during his year of reading and talking about abortion.

  Justice Blackmun was not given to public displays of emotion. After reading his words about the “raw edges” of life and conflicting moral values, he glanced up briefly and continued. “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.” Blackmun then returned to the world of antiquity and began a lengthy historical account of abortion practices and procedures. When he finally emerged into the twentieth century; he noted the “wide divergence” of opinion on “the difficult question of when life begins.” How could judges answer this question, Blackmun inquired, when doctors, philosophers, and theologians “are unable to arrive at any consensus” on life’s first moment? Judges did know, however, that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Therefore, states could not ban abortions in the early stages of pregnancy; Only when the fetus reaches the point of “viability” could they prevent its abortion.

  Blackmun devoted twelve pages of his Roe opinion to history and twelve to medicine. He shoehorned his constitutional argument into two paragraphs, citing his grab bag of precedent on “the right of privacy” and concluding that the Fourteenth Amendment “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” By giving pregnant women the “liberty” to choose abortion over childbirth, Blackmun revived the “substantive due process” doctrine the Court had rejected in 1937 in West Coast Hotel, a decision reaffirmed by the Warren Court in 1963, Justice Douglas had carefully avoided the Fourteenth Amendment in his Grisworld opinion, but Justice Steward had insisted that Blackmun not open the Pandora’s box of the Ninth Amendment or rely on the “penumbras” of the Bill of Rights. That left only the Fourteenth Amendment on which to ground abortion rights. Blackmun yielded to Stewart, who argued in a brief concurrence that Grisworld, Despite its reliance on equal protection, really had been a “substantive due process” decision. Douglas grudgingly conceded in his own brief concurrence that many of the rights “retained by the people” under the Ninth Amendment “come within the meaning of the term ‘liberty’ as used in the Fourteenth Amendment.” Stewart and Douglas did not read their concurrences aloud, and spectators had no inkling of their debates over doctrine.

  Chief Justice Burger had used his three-paragraph concurrence as an excuse to delay the Roe decision until he left President Nixon’s inauguration. Like Justice White’s Grisworld concurrence, it read more like a dissent. Burger faulted Texas for not allowing rape and incest victims to obtain abortions, hinting broadly that he would uphold laws with such exceptions. He wanted everyone—including the President—to know that he rejected “any claim that the Constitution requires abortion on demand.”

  The two actual dissenters raised very different objections to Blackmun’s opinion, justice White sounded like Mrs. Grundy in his peevish opinion. He suspected that many women were motivated by “convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy,” or even by “no reason at all” for ending their pregnancy. Accusing the majority of valuing “the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus,” White blasted Blackmun’s opinion as “an exercise of raw judicial power” that allowed women to “exterminate” human life.

  Justice Rehnquist, in contrast, stuck to his principle of moral neutrality and expressed no opinion on abortion. Noting that Blackmun based his opinion on “substantive due process” grounds, Rehnquist complained that allowing judges to decide whether laws infringed the “liberty” of individuals would give them broad powers to nullify legislative judgments. He was, of course, entirely correct. The Roe majority nullified the 1854 judgment of Texas lawmakers because they felt a “fundamental right” had been denied to pregnant women. The Court had devised the fundamental rights doctrine and extended it to “the private realm of family life which the state cannot enter” some thirty years before the Roe decision. Rehnquist, however, could not find any “fundamental rights” in the Constitution that were “beyond the reach of majorities,” as justice Jackson, had written in 1943. As Jackson’s law clerk in 1953, Rehnquist had responded in his “Plessy was right” memorandum that “it is the majority who will determine what the constitutional rights of the minority are.” In his Roe dissent, Rehnquist said the Court should have applied the “rational basis” test to abortion laws; he suggested that laws would flunk this test only if the failed to permit abortions when continued pregnancy or childbirth would jeapardize a woman’s life. Since Texas allowed this exception, its law passed Rehnquist’s test. All the constitutional questions on this issue, he concluded, had been settled “when the Fourteenth Amendment was adopted” in 1868.

  Justice Blackmun’s opinion in 1973 did not settle the abortion issue. Like the Warren Court’s prayer decisions, Roe struck a live wire. Catholic leaders were predictably upset; Cardinal Terence Cookie of New York found the decision “shocking” and “horrifying,” while Cardinal John Krol of Philadelphia, president of the National Conference of Catholic Bishops, called it “an unspeakable tragedy for this nation.” Abortion advocates were predictably happy; Dr. Alan Guttmacher of Planned Parenthood called the ruling “wise and courageous,” and New York governor Nelson Rockefeller—whose family’s foundation had generously supported Planned Parenthood—praised the decision as “a wonderful thing.” The press almost uniformly endorsed the Court’s ruling: the New York Times called it “a major contribution to the preservation of individual liberties,” the Washington Post agreed that the decision was “wise and sound”; even the Wall Street Journal, while expressing “certain reservations,” said the Court had “struck a reasonable balance on an exceedingly difficult question,” Perhaps the most accurate barometer of the high pressure that would build up over the abortion issue was the first Gallup Poll after the Court’s ruling. Asked whether abortion decisions should be left to women and doctors during the first three months of pregnancy, 46 percent of respondents said yes and 45 percent said no. This virtually even split guaranteed that arguments over aborti
on would continue in legislative halls and judicial chambers.

  34

  “Truly a Pandora’s Box”

  The abortion debate had flared up suddenly in American politics, and Roe v. Wade reached the Supreme Court without much public notice; the “abortion wars” that later engulfed the country and caused several deaths began only after the Court’s 1973 decision. However, America’s “race wars” had been waged for more than two centuries. The first large-scale slave. rebellion took place in New York City in 1712, when black slaves killed nine whites; twenty-one blacks were executed for taking part in the revolt. The end of slavery did not end black resistance to segregation, the Brown decision did not end black complaints about inferior education, and the Civil Rights Act of 1964 did not end black anger over job discrimination. The list of black grievances included bad schools, bad jobs, and bad cops. During the hot summer of 1965, Los Angeles police officers in the city’s Watts ghetto dragged a young black man from his car and clubbed a protesting bystander. The ensuing Watts riot left thirty-four people dead, hundreds injured, four thousand arrested, and whole blocks in flames.

  As the smoke cleared over Watts, officials at all levels of government realized that drastic measures were needed to dampen racial tensions. The programs that emerged from the political process—like Head Start and the Job Corps—were hardly drastic in nature, but they did help many young blacks get better prepared for school and work. Another widely adopted program was “affirmative action” in education, designed to increase the numbers of “underrepresented minorities” in colleges and professional schools. The officials who drafted these programs usually spoke of “goals” for increasing minority enrollments, but some adopted “quotas” that set precise numbers and gave preferences to members of racial and ethnic minorities. Affirmative action programs worked, in the sense of putting more black and Hispanic students in classrooms. But they also raised questions about the quality of those students; many were admitted with lower grades and test scores than white applicants who were rejected. Proponents of affirmative action responded that grades and scores were not the only measures of academic “merit” and that racial “diversity” was a legitimate educational goal.

  The 1960s were years of minority demands for more jobs and better education; the 1970s were marked by the white “backlash” against affirmative action programs that continues to roil American politics. Members of previously overrepresented majorities—white males in particular—raised the cry of “reverse discrimination” and began filing lawsuits against schools that “gave away” their seats to minorities. The lawyers for these disgruntled applicants had two legal weapons and a slogan. Their primary weapon was the Fourteenth Amendment, which prohibits states from denying to “any person” the equal protection of the laws. White males fit the category of “any person” just as well as black males, or women. Backing up the Fourteenth Amendment was Title VI of the 1964 Civil Rights Act, barring discrimination “on the ground of race, color, or national origin” in any federally funded program, including universities. The favorite slogan of those who opposed affirmative action had been coined by Justice John Marshall Harlan in 1896. “Our Constitution is color-blind,” he wrote in his Plessy v. Ferguson dissent, arguing that state laws could not discriminate against blacks. But the “reverse discrimination” lawyers argued that the color-blind principle applied equally to whites, and that officials who screened applicants for jobs and schools could take no account of their race or ethnicity.

  The road to the Supreme Court for white males began on August 3, 1973, when Allan Bakke met with Peter Storandt in the admissions office of the University of California’s medical school at Davis, near the state capital of Sacramento. Bakke was thirty-three, an aerospace engineer at a NASA research center close to Stanford University. Storandt was assistant dean of student affairs at the UC Davis medical school, One of these white males wanted to become a doctor; the other wanted to help him get into medical school. Bakke had applied twice to UC Davis, in 1972 and 1973, and had been rejected both times. In fact, Bakke had been turned away by more than a dozen medical schools across the country; most had frankly told him that he was too old. Even UC Davis officials had cited “your present age” as a factor in Bake rejection. But he was convinced he had lost his medical school place to a minority applicant with lower grades and test scores. After his first rejection in 1972, he discovered that the UC Davis medical school had an “affirmative action” program that set aside sixteen places in an entering class of one hundred for members of “disadvantaged” minorities. These sixteen places were known as Task Force seats, filled through a separate admissions process.

  Before his meeting with Bakke, Peter Storandt studied Bakke’s file carefully. Bakke certainly had good grades and test scores. His undergraduate average at the University of Minnesota, where he majored in engineering, was 3.46. His scores on the science, verbal, and math sections of the Medical College Admission Test were in the 97th, 96th, and 94th percentiles. Bakke’s grades were higher than those of half the students admitted to the eighty-four places not filled by Task Force students, and his MCAT scores were considerably higher than average. Compared to the Task Force students, Bakke had higher grades than all but one of those admitted in 1973: their undergraduate grades averaged 2.88, and their MCAT scores on the science, verbal, and math sections averaged in the 46th, 24th, and 35th percentiles.

  Bakke’s numbers were impressive. So what had kept him out of the UC Davis medical school? The major reason was that he had received lukewarm reviews on his admission interviews with medical school faculty and students. The sole interviewer in 1972 had reported that Bakke was “tall and strong and Teutonic in appearance,” not surprising for a former Marine Corps officer of Norwegian descent. The interviewer also wrote that Bakke’s main handicap is the unavoidable fact that he is now 33 years of age.” But he considered Bakke “a very desirable applicant to this medical school and I shall so recommend him.” However, his interview score, added to his grade and test scores, left Bakke two points shy of admission. When he applied again in 1973, after hinting that he might sue the university for giving preference to minority applicants with lower scores, his interview scores plummeted. The dean of student affairs, who had received Bakke’s first complaint, interviewed him personally and called him “a rather rigidly oriented young man” who was “certainly not an outstanding candidate for our school.”

  At their meeting in August 1973, Peter Storandt explained the Task Force program to Allan Bakke in detail and gave him several documents about it. He later wrote Bakke and encouraged him “to pursue your research into admissions policies based on quota-oriented minority recruiting.” Storandt also included several legal references and a Washington State court opinion, directing the state’s law school to admit a rejected white applicant, Marco DeFunis. Ruling in 1974, the Supreme Court declined to hear the state’s appeal on the ground the case was “moot” because DeFunis was nearing graduation, Justice William Brennan predicted in dissent that reverse discrimination cases “will not disappear” from the Court’s docket. “They must inevitably return to the federal courts and ultimately to the Court,” Brennan wrote. Allan Bakke did not disappear, and he turned to federal court after drawing the obvious conclusion that Storandt thought he should sue the UC Davis medical school. Through the material Storandt gave him, Bakke found a San Francisco lawyer, Reynols Colvin, who agreed to take his case. Colvin filed suit against the University of California Regents (who govern all UC schools) in state court in June 1974, alleging in his complaint that Bakke had been rejected “on account of his race, to-wit, Caucasian and white, and not for reasons applicable to persons of every race.” Bakke won his case in the trial court, and the California supreme court upheld the ruling, striking down the UC Davis minority admissions program and ordering Bakke’s admission to the medical school. Unlike the Washington court in the DeFunis case, however, the state court issued a stay of its order
while the Regents asked the Supreme Court to review the ruling. This avoided any “mootness” problem when the Court granted the Regents’ petition for certiorari in 1977.

  The case of Regents v. Bakke confronted the Supreme Court with a dilemma. The justices had ruled for racial minorities in virtually all the job and school discrimination cases filed under Tide VI of the Civil Rights Act. Would they make a “color-blind” decision in Bakke’s case? The factual evidence was clear: Bakke had higher grades and scores than almost every minority student admitted to the UC Davis medical school under the Task Force program.

  Did the Regents have any defense? They could—and did—argue that increasing the number of minority physicians in California offered a “compelling state interest” that overrode Bakke’s interest in becoming a doctor. The Regnets had numbers on their side as well: fewer than 2 percent of California’s doctors came from minority groups. The only way to raise that number was to increase the number of minority medical students. Because their elementary and high school educations had generally been inferior, in ghetto or rural schools, minority applicants to medical school were burdened with lower college grades and test scores than whites. But this did not mean they were unqualified; more than 90 percent of minority medical students graduated and passed their licensing exams, only a slightly smaller percentage than white students. Setting aside sixteen places in the UC Davis entering class was a reasonable way, school officials left, to achieve the goal of educating more minority doctors. Allan Bakke was not the only disappointed applicant; he was just one of 2,464 who competed for one hundred places at UC Davis. Bakke’s argument, however, was that the Task Force program forced him to compete for one of just eighty-four places, which reduced his chances for admissions. He might have been admitted if all one hundred places had been open to all applicants.