CRS Annotated Constitution

The subject of the Roe appeal was an extremely sensitive issue of the 1970s. The appeal brought before the court the simple question of whether it was constitutionally permissible for a woman to terminate her pregnancy by abortion. In a 7-2 majority the court Blacmun wrote the majority opinion holding that a woman’s right to choose to have an abortion performed fell under the 4th Amendment provision of an individual’s right to privacy and was therefore protected by the 14th Amendment guaranteeing equal protection of the laws. As a result of this landmark decision, 46 state laws were affected. (“Roe v. Wade, 410 U. S. 113 (1973).

It remains unclear as to what cajoled Justice Blackmun’s transition from being a known conservative to being a champion for the liberal movement. What remains perfectly clear is that the Nixon administration did not misread Blackmun. Argumentatively, there was some evidence in his disposition of Jackson v. Bishop, 404 F. 2d 571 (ruling that physical abuse of prisoners was cruel and unusual punishment under the Constitution the possibility) of a dormant liberal. From the end of the Warren court, through his retirement with Rehnquist court, there seemed to be a conservative movement within the federal and state judiciaries.

Therefore, by the time he retired in 1994, Blackmun was considered to be the most liberal justice of the court. (Greenhouse 235). In July of 1990 William J. Brennan submitted his resignation to President George H. W. Bush. At the time, Brennan’s resignation was more of an annoyance to President Bush than an opportunity to be sought after. (Toobin 24). For simplistic and political concerns, President Bush wanted to appoint someone of a similar background and temperament of his own. Therefore, after little searching President Bush discovered a little known New Hampshire public official named David H.

Souter. When Justice Thurgood Marshall was confronted with the news of Souter’s nomination spoke for many when he replied “Never heard of him. ” (Toobin 24). Souter was generally considered a conservative, however when he gave his testimony to the Senate Judiciary Committee, it came off to Bush’s conservative base not to be in-line with the conservative movement. Though the conservatives despised the nomination of Souter, he was confirmed with a 90-9 vote in the Senate. (Toobin 25). Souter’s first 2 years on the court were as expected.

The justice was typically inclined to vote with the conservative majority most of the time on matters of non-landmark importance. However, one of the first appeals which tested Souter’s believed conservatism was that of Planned Parenthood v. Casey, 505 U. S. 833 (1992). In the case the court was presented with the question of whether a state can require a woman who wants an abortion to obtain informed consent from their husband, wait 24 hours, and, if the individual is a minor, obtain parental consent, without violating her right to an abortion as guaranteed by Roe v.

Wade? (“Planned Parenthood v. Casey, 505 U. S. 833 (1992). ”) Planned Parenthood was a case of extreme significance due to it presenting an opportunity for the court to either narrow or widen the scope of Roe. Though the question posed to the justices in Planned Parenthood was one of significance and delicacy, it was also one that required an exponential amount of explanation. In a split 5-4 decision the Supreme Court ruled in favor of Roe.

However, Justices O’Connor, Souter, and Kennedy all wrote co-authored opinions setting forth additional groundwork for the scope of Roe and denouncing the informed consent rule as an “undue burden” to women. The ruling in the case had little effect on the Roe decision from 1973 and instead provided the stare decisis foundation for that case instead. In short, it could also be suggested that the Planned Parenthood decision was the most liberal of its kind since the Roe disposition was announced.

Justice Souter’s appointment to the court was indeed a great victory for the Bush administration. Nevertheless, Souter turned-out with the liberal side of the court as opposed to the desired conservative movement. However, again the issue of vetting the prospective court nominee comes into play. All of Souter’s support during the nomination process was provided by the closest advisors of President Bush. Furthermore, the President had little interest in the appointment process due to the sudden fall of communism. (Toobin 24).

All of those factors played a role in Souter’s nomination and ultimately his confirmation. However, it is most likely the President did not misread Souter’s conservatism, but rather failed to vet Souter for matters of law rather than matters of public policy. The Planned Parenthood case and a multiple other cases failed to fall in-line with the conservative idealism. However, due to Souter’s reserved nature it is possible that he was underestimated in regards to his interpretation of the stare decisis and the guaranteed Constitutional rights and protections.

Finally, Justices Warren, Brennan, Blackmun, and Souter all embody the misrepresentations of a conservative agenda. The appointment of those justices show that with little investigation and unfounded assumptions the appointment of a dark-horse liberal can occur. All of the justices refered to were conservative in many aspects of their lives, breeding the image of conservatism. However, one cannot gauge an individual’s judicial philosophy by how he may look or act, but rather by the past rulings, opinions, and publicly-known judicial philosophies on issues of political importance.

All of those, together with a plethora of other factors should be reviewed when contemplating the nomination of a jurist to the highest court in the land. Otherwise, a future political blow from the judicial branch could decimate the work of the nominating President on the grounds of unconstitutionality.

Works Cited

"CRS Annotated Constitution. " Cornell University Law School's Legal Information Institute. 20 Oct 2008 <http://www. law. cornell. edu/anncon/html/ art3toc_user. html>.