The successful legal challenge to Roe v. Wade must be a work of judicial craftsmanship and wholly the work of an original legal mind: the lawyer who will prepare and present the case. Contrary to a common impression, the Justices of the Supreme Court are merely judges, and their decisions are wholly dependent upon the cases as presented by the conflicting parties.
In fact, the law and court procedure forbid them to pass judgment on any issues not presented to them in actual cases. The preparation and presentation of a case, then, are critical and even decisive to the outcome of the case.
Just to give two examples. In the preparation for his presentation of Gibbons v. Ogden in 1824, Daniel Webster spent three years preparing his arguments, preparing for this case with the same thoroughness with which he had prepared for two previous landmark cases: Dartmouth College v. Woodward and McCulloch v. Maryland. In all three cases, but particularly in Gibbons v. Ogden,new principles of constitutional law were laid down which became precedents in their own right in future cases. Webster was noted for the intense preparation he gave to each case and for his massive knowledge of constitutional law.
The second example is that of Louis Brandeis in Muller v. Oregon,which changed the whole direction of the Supreme Court and American Law in the 20th century. In preparation for the case, Brandeis collected empirical data from hundreds of sources, gathered into his famous Brandeis Brief, which became the model for future Supreme Court presentations.
In another case, Brandeis checked into the Harvard Club in New York, locked himself in his room and put all the facts together by intense concentration on the material. His success in Muller v. Oregon went contrary to every previous decision of the Court, making ''workers rights'' part of the national vocabulary and part of constitutional law.
As in these pivotal cases, Roe v. Wade opened a whole new dimension of constitutional law and statutory law: the question of the unborn, demanding in those who challenge that decision a thorough knowledge of the major decisions in Supreme Court history. Those major decisions brought the Constitution to bear upon problems never before faced by the courts and created the necessity to draw from the Constitution- itself an application of its principles in new and unprecedented ways.
It is in those landmark and pivotal cases that parallels to abortion are to be found, as new applications of constitutional law reveal how the Constitution applies in concrete cases.
The Solution to the Abortion Question
The solution to the abortion question is not to be found in amicus curiae briefs in cases of abortion coming before the Court, but in challenging the practice of abortion in the courts in concrete cases. The parallels for this challenge are found in constitutional history itself.
The basic premise of the abortion question is that, legally and constitutionally, it is uncharted territory. There are no direct precedents to draw upon and no legal authorities to appeal to. There is only the text of the Constitution itself, and its interpretation by the courts for over 200 years, embodied in those cases and decisions that have marked Supreme Court history. The raw research needed to resolve the question legally has not been done, and the foundational work to uncover the issues involved is lacking.
Any opposition to abortion in the courts must, first of all, be a constitutional opposition, based on principles enshrined in the Constitution of the United States, on precedents in constitutional law and on rights which the Constitution was fashioned to secure and protect. Any other effort is not only doomed to failure, but also is ultimately counterproductive.
The judicial challenge for a legal challenge is to be found in the briefs and oral arguments of past Supreme Court decisions, in particular, those cases which are considered the major decisions in Supreme Court history. This material is vast, abundant, illuminating and instructive, throwing light on the judicial process and the chemistry of Supreme Court decision-making. These cases demonstrate how a foundational base is laid in presenting concrete cases, what are the rules of evidence recognized and accepted by the Court and the reasoning process that enters into a Supreme Court decision.
What is also revealed in a careful study of this material is how the legal mind works in laying bare the exact terms of a conflict, and how the terms of a conflict are brought before the Court. The effect of such legal reasoning on the hearers, in a successful presentation of a case, is indicated by Joseph Story after listening to a presentation by William Pinkney in McCulloch v. Maryland:' 'Mr. Pinkney rose on Monday to conclude the argument; he spoke all that day and yesterday, and will probably conclude today. I never, in my whole life, heard a greater speech. . . . His language, his style, his figures, his arguments, were most brilliant and sparkling. He spoke like a great stateman and patriot, and a sound constitutional lawyer.''
There is no doubt that the groundwork for any legal challenge in the courts must be based upon a total familiarity with actual cases brought before the Court in its 200-year history, for it is here that the mechanics of a legal challenge are to be found. These cases also demonstrate why and how good cases are lost and how constitutional principles apply in specific cases.
The idea that abortion as a constitutional question has been settled by the legal reasoning of Roe v. Wade is a false assumption based on a total unfamiliarity with the history of the Supreme Court. It is legal reasoning that changes the direction of Supreme Court decisions and it is legal reasoning that convinces Justices that a previous decision must be overturned. It is the ability to draw such reasoning from the facts of a case and from previous decisions of the Court that makes the difference in presenting a case. The best proof of this is the huge number of Supreme Court decisions decided by a 5-4 vote of the Justices.
The Original Legal Mind
An original legal mind appears only once or twice in a generation, in the person of a Webster, a Story, a Lincoln, a Holmes, a Brandeis or a Cardozo. It is original in that it pioneers a breakthrough in legal reasoning, a giant leap forward in the facing of some critical constitutional question, or in working through the implications of a basic constitutional principle. The legal breakthrough is unprecedented and unexpected, in direct contradiction to the accepted legal doctrine of the time. It is opposed and even ridiculed, since it challenges certain assumptions that have become the common property of the legal community. The prime example in the last century was Louis Brandeis, who, singlehandedly, created a whole new tradition of constitutional law.
The major example in constitutional history is John Marshall, who, in a series of classic Supreme Court decisions, created a federal judiciary and a body of constitutional doctrine that extended the Constitution- into the social fabric of American life and into the mainstream of American concerns. Breakthroughs in constitutional law have been the work of lone individuals, who recognized a problem in human relations crying out for a solution, with no ready-made solution easily at hand.
There is no ready-made solution to the abortion question, but this has been true of every constitutional question that has ever arisen. The solution, when it comes, is deeply personal and highly original, made up of elements obvious to no one else at the time. One has only to read of the fierce opposition of a Thomas Jefferson to the Supreme Court decisions of John Marshall, or the mind-set of Stephen A. Douglas in the Lincoln-Douglas debates, or the opposition of the corporate community to the legal doctrine of Louis Brandeis, to realize the originality of their solutions. But without these breakthroughs, American law, as we understand it, simply would not exist.
In every case, the foundational work was massive, extensive, opening new avenues of constitutional thought, and worked into unity with remarkable clarity and compelling logic. But this clarity and compelling logic did not constitute the genius of their solutions. It was their embodiment in the concrete empirical facts of a particular case, or series of cases, that constituted the breakthrough and the touchstone of their legal genius. In many cases, one can pinpoint the historical moment that sparked that particular legal mind into action, when that mind began to formulate the beginnings of an original constitutional solution.
For Brandeis, it was the Homestead strike of 1892 that brought about a seismic change in his legal outlook as he faced a totally new dimension in human relations. ''It was the affair of Homestead,'' he wrote later, ''which first set me to thinking seriously about the labor problem. It took the shock of that battle, where organized capital hired a private army to shoot at organized labor for resisting an arbitrary cut in wages, to turn my mind definitely toward a searching study of the relations of labor to industry.''
He recognized the inadequacy of an inherited legal doctrine to face the new human problem. The result was the creation of a legal new solution. ''One morning the newspapers carried the story of the pitched battle between the Pinkertons on the barge and the barricaded steel workers on the bank. I saw at once that the common law, built up under simpler conditions of living, gave an inadequate basis for the adjustment of the complex relations of the modern factory system. I threw away my notes and approached my theme from new angles.''
The Brandeis Brief, which brought his ''new angles'' into a concrete case argued before the Supreme Court changed the whole course of constitutional law in the 20th century. With his own appointment to the Court in 1916, with fierce opposition from the industrial community, his solution began to influence the Supreme Court itself.
In every major development in constitutional adjudication, an original legal mind has brought new angles into a concrete case involving fundamental rights, new angles that had not been recognized before or had not emerged through historical development. In the early stages of the nation, after the Constitution had been ratified and the Supreme Court had begun its work of applying that Constitution to growing developments, these ''new angles'' multiplied rapidly, as constitutional principles began to be applied to every aspect of American life, not without controversy and not without intense debate. That debate produced precedents which have become the backbone of American constitutional law and upon which the judicial system has drawn in adjudicating cases.
In every major case, these Supreme Court decisions were divisive- visive, since they en- encroached upon the interests of certain persons or certain classes of persons, limiting their power over others, and enshrining in the law itself the rights of individuals whose rights were not previously recognized by law. The cases themselves arose because of some crisis in American life, some conflict of rights in which whose fundamental rights were bring violated was not clear and for which the solution required a court decision.
In every case, also, it was some ''new angle,'' unrecognized before but clearly an integral part of the Constitution, that provided the resolution of the case, becoming part of constitutional history and of constitutional law. Moreover, the new angle was unprecedented, violently attacked and vehemently denied in the public forum and in legal journals.
Sometimes it was long-established custom that was the issue, such as slavery, segregation or child labor; sometimes it was a new issue that emerged from the economic or political life of the nation; sometimes it was an issue that emerged from some concrete event, such as the New York Times libel case of 1962. In each case, constitutional principles were brought to bear upon the issue, not without intense public debate.
Often, on the surface, the issue seems to be a political one, a conflict between states' rights and federal jurisdiction, between social groups or political parties, between North and South, capital and labor, liberal and conservative, blacks and whites. But at bottom, there are constitutional issues involved, a conflict over individual and personal rights, rights enshrined in and guaranteed by the Constitution of the United States, demanding a new hard look at that Constitution and its application to concrete historical circumstances.
And in every case, the issue is resolved by litigation.
''The Constitution's continuing strength, flexibility and vitality stem from the fact that the Supreme Court, since its inception, has felt compelled -- by virtue of the Justices' oath to see that justice is done -- to give meaning to the general phrases of the Constitution- . Given the presence of a legitimate case or controversy . . . the Justices of the Supreme Court have, in the words of Marshall, 'expounded' upon the meaning of the general terms in 'response to life and experience.' Litigation is the vehicle by which the fundamental principles rooted in our Constitution- are given content and relevance in each generation. ...Constitutional adjudication is the genius of our democracy and its noblest attribute.''
Debate in the public forum has its place, but it is not public debate that resolves the issue constitutionally and legally. It is constitutional adjudication and the introduction of ''new angles'' into the debate, new angles that are seen to have bearing on the Constitution- itself and on the rights guaranteed by the Constitution. The public debate often reduces the issue to class warfare, a controversy between political factions, a battle on social or economic issues. It is only when the public debate has entered the courts that the real issues emerge and are clarified, and that judgment is made on whose rights are being violated. Until the issue enters the courts by litigation, sometimes massive litigation on a national level, the constitutional issues and the public debate remain unresolved.
The constitutional parallels for a legal challenge to Roe v. Wade are cases that have made constitutional history, were vigorously argued when they were presented to the Court and became the foundation stones in the development of constitutional law. What these cases did was to take key concepts in the Constitution itself, such as commerce,regulate, person, right, power, provide, and determine their exact application in concrete cases, extending that concept to new times and circumstances.
In almost every case, in those cases that were landmark decisions of the Court, the concepts and terms were interpreted expansively,and opposing a narrow interpretation of the terms. In those major cases, those who lost the cases argued for a narrow application or designation of constitutional terms for the sake of some private interest or claimed right. This application or designation was ultimately rejected by the Court.
What all these cases demonstrate is that words such as commerce, person,power, right, regulate, provide, as used in the Constitution, have a broad meaning and are not to be interpreted in a restricted and narrow sense. When legal reasoning cogently demonstrates that such a narrow and restricted meaning is being used to support a claim or defend a position, that claim has been rejected by the Justices. That is one of the lessons to be learned from these cases.
The appeal to precedent in Supreme Court adjudication refers not only to Supreme Court decisions, but to the form of legal reasoning as well; the manner by which decisions are reached. Not to understand this is a form of legal and judicial illiteracy.
The groundwork for a legal challenge to Roe v. Wade must be laid in these constitutional parallels, since there are no direct precedents in constitutional law directly bearing on the question of abortion. It is true that it was the moral outrage in the face of slavery and the Dred Scott decision that brought into focus the constitutional issues involved in the question of slavery, just as it was the moral outrage and the social embarrassment of segregation that led to the outlawing of segregation in Brown v. Board of Education.But it was the constant litigation in the courts that brought out the constitutional principles involved, that demonstrated how such principles apply in concrete cases, and what forms of legal reasoning convince the Court. In the adjudication of all these major cases, the foundational work was critical and massive.
The legal solution to the question of abortion is to be found in the Constitution itself and in those Supreme Court decisions that have extended the Constitution into the fabric of American life. What is lacking is that original legal mind, that rare intuitive genius, to bring this issue before the courts. In the more than thirty years since the handing down of the Roe v. Wade decision, no such legal mind has appeared. TP
Father Stevens is a priest of the Archdiocese of Omaha and president of the National Organization for Embryonic Law.