"Abortion was a political issue. Women were coming into their own, as Stewart learned from his daughter Harriet, a strong, independent woman." Thus Bob Woodward and Scott Armstrong in "The Brethren" describe Justice Potter Stewart's reaction to the abortion cases the Supreme Court decided in 1973. "The state legislatures were always so far behind. Few seemed likely to amend their abortion laws."
Actually, 18 states, with 41 percent of the nation's population, had liberalized their abortion laws in the four years before the court's decision. This was fast action when you consider that abortion had been a crime for decades. But it wasn't fast enough for Stewart or the Supreme Court.
That a thoughtful justice like Stewart voted to overturn abortion laws, after voting only a few years before to let states ban contraceptives, shows the strength of the idea of judicial activism in the 1970s. Desegregation cases had taught judges that overturning local laws was necessary for real change in society. Looking back, many regretted only that they had not acted more speedily.
But their activism on laws covering political issues--notably abortion and capital punishment--seems to have been counterproductive.
Some will say the court's decision on abortion has succeeded: Americans have some 1.5 million abortions per year now, as compared with about 500,000 in 1972; 30 percent of pregnancies are terminated by abortion.
But the opposition to abortion has thrived. While the opposition has not succeeded in persuading most Americans that abortion should be abolished, it has succeeded in defeating many politicians. More important, it has helped to persuade many that abortion is not without moral cost.
If the Supreme Court had just let the states go on legalizing abortion as they were, these matters could be pondered in each of the 50 states, and the solutions reached would be subject to fine-tuning and adjustment. But a Supreme Court decision is a clumsy instrument. It makes a change all at once and for the entire nation. It becomes a national political issue--one of which the law can be abruptly reversed.
Capital punishment has become a political issue in most states, and the court's decisions may produce the many executions in the next few years. In 1972 and 1976 the court overturned laws on inconsistent grounds: first because juries had too much discretion in invoking death penalties, second because they were not given discretion enough. This is Alice-in-Wonderland jurisprudence, explainable only by the fact that several justices were troubled by capital punishment but recognized that there was no justification to call a historically familiar and widely accepted penalty "cruel and unusual punishment." So in effect the justices substituted their own distaste for capital punishment for the public's growing support for it.
Gallup tells us that support for the death penalty for murder fell from 65 percent in 1937 to 47 percent in 1957; in 1966 a 47-42 percent plurality opposed it. But as crime rose and executions ended in the late 1960s, the trend changed. Support for the death penalty is now above 70 percent. Most states have enacted new death penalty laws every time the Supreme Court has struck down an old one.
What would have happened if the courts had not acted? On these political issues there would have been change--and change firmly rooted in public acceptance. States would have continued to liberalize abortion, though some would have moved back as local opposition movements grew. Executions would have continued in many but by no means all states; there might well have been fewer executions over the last decade than are scheduled to occur, after appeals are finished, now. Opinion might still be moving in the direction the court wanted.
The Supreme Court is inevitably a political institution. But it needs to understand which issues can better be left to the political process whose fairness and accessibility the court has done so much to ensure.