Influencing the Court

Politics has changed. In 1952, Americans did not have to endure months and months and months of campaigning before Democrats and Republicans selected their respective presidential nominees. The decisions, to a great degree, were made at the party conventions.

The Republicans had two principal candidates that year -- Gen. Dwight D. Eisenhower and Sen. Robert Taft of Ohio, the minority leader in the Senate. Neither went into the convention as a sure bet for the nomination.

It's then that the wheeling and dealing began. California's three-term governor, Earl Warren, the Republican nominee for vice president in 1948, was his state's favorite son. California's sizeable delegation was committed to him. His endorsement of either Eisenhower or Taft was seen as important.
To entice Warren into coming over to their side, Eisenhower's managers offered the governor the first seat on the Supreme Court to open in an Eisenhower presidency, assuming, of course, that Eisenhower would be elected, and also assuming that Warren would go over to Eisenhower at the most advantageous moment.

Warren did go over to Eisenhower. The deal was made. Eisenhower was nominated and then elected. As things happened, Chief Justice Fred Vinson's sudden death created the first vacancy on the court in Eisenhower's presidency.

True to the deal, to fill the vacancy, Eisenhower nominated Warren to be chief justice.

In those days, Supreme Court justices were often former politicians, educated in the law usually, but with interests more in politics than in being lawyers or judges. Such has been the case with Justices Charles Evans Hughes, William Moody, Edward Douglas White, James Byrnes, Harold Burton, Sherman Minton, Hugo Black, Frank Murphy and Joseph Robinson, Al Smith's 1928 running mate, whom Franklin Roosevelt planned to nominate to the court when Robinson himself suddenly died.

When Warren came to the court, a segregation case was pending. Warren personally grew into the opinion that racial segregation was wrong, a belief formed more in his sense of morality than in his expert reading of the law.

Making racial segregation in public schools illegal would require the court to reverse the 1896 decision of Plessy v. Ferguson, which allowed racial segregation. The court rarely reverses itself, but it happens.

Just like a politician, Warren went from one justice to the next, arguing his case that segregation was wrong. He sold the other justices. In 1954, in Brown v. Topeka Board of Education, all nine justices concurred in reversing Plessy. This set in motion a train of rulings outlawing racial discrimination in virtually every walk of life.

Interesting history, but it also leads to the hope that today's Supreme Court might reverse Roe v. Wade. In speculating about overturning Roe, two points are worth considering. The first is that the court might not reverse Roe at all. The court's recent decision upholding the Federal Partial-Birth Abortion Ban delighted pro-life Americans. Welcomed also was the language in this decision that suggested a new way of thinking in the court, a thinking more concerned about the destruction of unborn life.

Justices Anotonio Scalia and Clarence Thomas went beyond saying that they not only supported a ban on partial-birth abortion but also thought Roe should be overturned. The other justices approving the ban did not go so far as to condemn Roe.

What would happen if Roe were overturned? The court might rule that an unborn human is a person with rights. Without this, reversing Roe could leave the matter to the state legislatures. This might not be a happy development. Many Americans, and some justices, still need to be educated that the unborn deserve the right to life.


Msgr. Owen F. Campion is associate publisher of OSV.