The Washington PostDemocracy Dies in Darkness

It’s premature to assume Roe v. Wade is dead

Supreme Court justices have changed their minds at the last minute in hot button cases before.

Supreme Court Justice Lewis F. Powell Jr. wearing judicial robes in 1972. (AP)
6 min

The leaked draft of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization left many people enraged. The Court seems poised to overturn its 1973 Roe v. Wade decision providing a constitutional right to an abortion under certain conditions. The draft opinion is the culmination of a decades-long effort by Republicans to make the Supreme Court more conservative. President Donald Trump’s contribution to the Court — three conservative appointments — has dramatically accelerated this push.

Yet, the hand-wringing from the left and celebration on the right might be premature.

History tells us that until the Court announces a decision, it remains possible for justices to change their minds. In fact, an unexpected change of heart (unlike in Dobbs, there had been no leaks) happened in 1973, when conservative Justice Lewis F. Powell Jr. — one of Richard M. Nixon’s new appointees to the Court — flipped at the last minute in Almeida-Sanchez v. United States, a case conservatives saw as a chance to begin rolling back the excesses of the liberal Warren Court.

Powell’s unexpected move dashed conservative hopes that Nixon’s appointees would quickly overturn the Supreme Court’s criminal justice decisions from the 1960s that had provided greater protections for criminal defendants.

In 1968, Nixon won the presidency on a platform of law and order, pledging to rein in the liberal Supreme Court. In his acceptance speech at the Republican Convention in Miami, Nixon declared, “Let us also recognize that some of our courts, in their decisions, have gone too far in weakening the peace forces as against the criminal forces in this country.” He was referring to Supreme Court decisions including Mapp v. Ohio in 1961 and Miranda v. Arizona in 1966, which conservatives saw as pro-criminal. Mapp extended Fourth Amendment protections against unreasonable searches and seizures to local and state police, and prohibited the use of improperly collected evidence in court. The Miranda decision said that police had to inform suspects of their right to remain silent and to have a lawyer.

After his election, Nixon had the unprecedented opportunity to follow through on his promise thanks to four vacancies on the Supreme Court in his first term. He appointed Chief Justice Warren E. Burger in 1969, Harry A. Blackmun in 1970, who wrote the Roe v. Wade opinion, and then Powell and William H. Rehnquist together in late 1971.

Almeida-Sanchez v. United States in 1973 provided an early test of whether the new justices would implement Nixon’s desire to roll back some of the protections for defendants enacted by the Court in the 1960s.

Border Patrol agents had pulled over Condrado Almeida-Sanchez on a California road 20 miles north of the border in 1971. The agents did not have a search warrant or any evidence that Almeida-Sanchez was involved in smuggling. At the time, however, their regulations said that Border Patrol agents did not need the same probable cause to search a vehicle that regular police did.

Instead, their congressional authorization said they could “board and search for aliens any vessel within the territorial waters of the United States, railway car, conveyance, or vehicle within a reasonable distance from any external boundary of the United States.” Almeida-Sanchez gave the agents documents that showed that he was a legal permanent resident of the United States, but they decided to search his vehicle anyway. They located bags of marijuana hidden under a seat.

The Supreme Court heard the oral arguments in Almeida-Sanchez v. United States twice in March 1973 because Almeida-Sanchez’s lawyer had a heart attack minutes into the first session (he survived). The case centered on what rules applied to the Border Patrol: the Fourth Amendment of the Constitution, which banned unreasonable searches and seizures inside the United States, or the Border Patrol regulations, which permitted warrantless searches within 100 miles of the U.S. border or coastline.

After the rescheduled oral arguments, the justices split five-to-four when they discussed the case at their private conference, with Nixon’s four appointees joining Justice Byron R. White in favor of the right of the Border Patrol to search any vehicle in the vast 100-mile zone.

The split on the Court was not solely ideological. In fact, liberal Justice William O. Douglas assigned the generally conservative Eisenhower appointee Justice Potter Stewart with writing the dissent. Stewart’s draft dissent was filled with righteous outrage. He called the idea that the Border Patrol could stop any vehicle in the border zone a “gross violation of the Fourth Amendment” that amounted to an “extravagant license to search.”

Stewart’s closest friend on the Court was one of Nixon’s new law and order justices, Lewis Powell. Given their moderately conservative judicial approaches, Stewart and Powell tended to vote together on most cases in their decade together on the Court. However, Powell was a more measured man and on his copy of Stewart’s draft dissent, he underlined each of Stewart’s rhetorical flourishes and even wrote “absurd” next to one. That June, when White circulated the final draft of his opinion, Powell again indicated his support for the Border Patrol.

In Powell’s chambers, however, there was disagreement. One of Powell’s clerks was adamant that the search of Almeida-Sanchez’s vehicle was a clear violation of the Constitution. The clerk had already written a memo to Powell about it earlier in the term. Powell was a fair-minded Justice and gave his clerks a strong voice in shaping his positions, so he scheduled a meeting to allow the clerk to make his arguments one more time.

Powell listened to the clerk, and reread White’s opinion and Stewart’s dissent. Then, to the surprise of Nixon, the other conservative law and order justices and probably to the clerk, Powell changed his mind.

On June 8, just weeks before the end of the term, Powell sent another memo to White and Stewart changing his vote on the case. Because the other justices were split four to four, Powell’s change of heart swung the majority to Stewart’s opinion ruling that the Border Patrol’s search deep inside the United States without a warrant or probable cause was unconstitutional.

The result was that the supposedly conservative Supreme Court invalidated the Border Patrol’s 50-year-old practice of searching any vehicle in the border zone. Rather than reversing or limiting the exclusionary rule from Mapp, the Supreme Court, packed with Nixon’s four law and order justices, expanded it to the Border Patrol — excluding the evidence obtained in the illegal search.

As the current justices deliberate on whether to invalidate Roe v. Wade, there is no way to know what is happening in each of their chambers. While the leaked opinion gives us a greater sense than we usually have, Powell’s last-minute change of heart — in which a conservative appointee sided with more liberal Court precedent — suggests that anything is possible. It indicates that we’d be wise to wait for a final decision on abortion, instead of assuming we know how the Court will come down.