“An Unintended Consequence of Roe v. Wade”

James Taranto:

How did the [Supreme Court] become so partisan? It was an unintended consequence of Roe v. Wade.

Roe itself was not decided along party lines. Its author, Justice Harry Blackmun, was a Nixon appointee; of the six justices who concurred with Blackmun, four were nominated by GOP presidents and two by Democrats. The dissenters, White and Nixon appointee William Rehnquist, were a bipartisan pair too.

The current politicization of the courts did not begin with Roe v. Wade; a Democratic Senate had already blocked two Nixon appointees, Clement Haynsworth and Harrold Carswell, for being too conservative, and Democratic senators later made an unsuccessful effort to block Rehnquist's appointment.

But by intervening so heavy-handedly in a matter that over which there was not yet a political consensus, the Roe court prompted a powerful backlash, the rise of the antiabortion movement, which became a key part of the Republican constituency. The pro-abortion side in turn became ever more immoderate and powerful within the Democratic Party.

Since 1980, each party's position on abortion has been so extreme as to be out of step with the vast majority of Americans. Since the court has left very little room for legislation on the matter, the practical consequences of this have been minimal--except when there is a Supreme Court vacancy.

By finding a right to abort in the Constitution's mystical emanations and penumbras, the court federalized what had previously been a state matter. Rather than remove it from politics, as the justices must have thought they were doing, this heightened the politics around it, almost all now focused on the court itself.

Roe v. Wade. The Dred Scott of our time.