The late-night swearing in of Justice Amy Coney Barrett by Justice Clarence Thomas, the longest-serving member of the Supreme Court, on Monday was a story not just about lawyers, but about Catholics and America’s abortion law.
Barrett and Thomas will be the most well-known Catholics on the court, which now has six Catholic justices — seven if Neil Gorsuch is counted, as he was baptized Catholic though he now worships at an Episcopal congregation. The two remaining justices are Jewish.
There is more to it than that, with high drama, given that Joe Biden may become only the second Catholic president of the United States in a week’s time.
The story of abortion law in the United States for the last 40 years is very much a story about Catholics in public life. On the Supreme Court side, the key players have been the late Justice Antonin Scalia, Justice Thomas, rejected nominee Robert Bork and his replacement, the retired Justice Anthony Kennedy. On the political side, the key players were the late Massachusetts Sen. Ted Kennedy and Biden.
In 1980, Ronald Reagan came to power with a Republican Senate to back his judicial nominees. His first nominee, Sandra Day O’Connor, was in favor of upholding Roe v. Wade, the 1973 decision creating a constitutional right to abortion. She sailed through the Senate as the first woman justice.
Reagan’s second nominee was Scalia; eminently qualified and in a Republican-controlled Senate, there was no doubt he would be confirmed. He was, in a unanimous vote, 98-0. It helped that he was the first Italian American to be appointed to the court.
Everything changed in 1987. The Democrats had taken control of the Senate and so could block a nominee if they wished. They decided to do just that, setting aside the tradition of voting on a nominee’s qualifications in favor of voting on his judicial philosophy and likely judicial rulings. That shift was led by Kennedy and the new chairman of the judiciary committee, Joe Biden.
In the summer of 1987, Reagan nominated Robert Bork, a brilliant jurist. (He would become Catholic in 2003.) Kennedy answered immediately in one of the most demagogic and defamatory speeches ever made in the Senate, fulminating that in “Robert Bork’s America women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids.”
Biden would then preside over confirmation hearings that would be so brutal that the verb “to Bork” entered the political lexicon as shorthand for character assassination for political ends.
Kennedy and Biden had changed the political rules, principally to preserve the abortion license. They did so in a hyperpartisan and vicious manner. They sowed the wind in 1987. The whirlwind would be reaped later.
Bork was defeated on the Senate floor. Biden and Kennedy were rewarded; Reagan, spooked by the failure of Bork’s nomination, nominated the moderate Anthony Kennedy to replace Bork. Justice Kennedy would provide a reliable swing vote on social issues, preserving the abortion licence and becoming the constitutional father of same-sex civil marriage.
The “Borking” by Kennedy and Biden, two of the leading Catholics in the Senate, had two effects. It led directly in 1988 to the confirmation of Kennedy and indirectly in 1990 to President George H.W. Bush nominating a relative unknown, David Souter. After the bloodbath of Bork, that next to nothing was known about Souter was thought to be an advantage. Souter would prove almost immediately to be a reliable liberal.
In 1992, Justices Kennedy and Souter would provide key votes in the 5-4 Casey decision to maintain the “essential holding of Roe.” Casey extended the Roe abortion license for another 30 years.
The Casey plurality opinion of Kennedy and Souter (joined by O’Connor) enumerated a constitutional “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Crafted to preserve the abortion license in light of scientific evidence and legal principles to the contrary, the “mystery of life” approach of Anthony Kennedy would eventually flower in the right to same-sex civil marriage.
Biden and Ted Kennedy’s work in 1987 paid off handsomely for decades. Recently in these pages, Paul Kengor detailed how Biden wept “tears of joy” when Caseywas released, preserving the right to abortion. His work as the Senate Judiciary Committee chairman had been a success.
Along the way to Casey (1992), Bush had another court opening and nominated Clarence Thomas to fill it. Biden presided over an even more spectacular confirmation hearing than the one for Bork, wherein lurid charges of sexual harassment were made against Thomas. He fought back, raising the stakes enormously by characterizing the Biden hearings as the “high-tech lynching of an uppity Black.”
Thomas would squeak through, confirmed by a 52-48 vote. Perhaps he and Barrett discussed that on Monday evening, she having been confirmed by the same result.
In 2017, Biden retired as vice president, but his decades of work in making the Democratic Party staunchly pro-abortion was complete. Justice Kennedy retired in 2018.
Now in 2020, Biden is hoping to return at the pinnacle of executive power. And the battle for the Supreme Court that he won 30 years ago will have to be fought again. The man he almost took down in 1991, Clarence Thomas, was there on Monday night, swearing in Justice Barrett, who may finally get to do on the court what Robert Bork would have done decades ago.
Ted Kennedy, Biden, Barrett, Thomas, Anthony Kennedy, Bork, Scalia — it has been a Catholic story for nearly 40 years. A new chapter is being written.
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