What a Great Justice Would Have Done About Roe v. Wade

In his appearance before the Supreme Court recently, Mississippi Solicitor General Scott Stewart brought a note of high drama to his concluding arguments. Arguing that Mississippi’s anti-abortion law should stand, and the court should overturn 1973’s Roe v. Wade decision, he compared the harm done by Roe over the past 50 years to that of the 1896 case of Plessy v. Ferguson, the decision that enshrined the principle of “separate but equal” and throttled the hopes of Black Americans for generations.

More specifically, he invoked the emotionally charged dissent in Plessy by Justice John Marshall Harlan, the most famous thunderbolt ever delivered from the bench.

“In closing, I would say that in the dissent of Plessy v. Ferguson, Justice Harlan emphasized that there is no caste system here; and the humblest in our country is the peer of the most powerful. Our Constitution neither knows nor tolerates distinctions on the basis of race,” Stewart said. “It took 58 years for this court to recognize the truth of those realities in a decision. And that was the greatest decision that this court ever reached. We’re running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country, and will continue to do so and take innumerable human lives” unless it is overturned.

Stewart wanted the justices to feel the weight of history on their shoulders. In Plessy, Harlan lost the argument that day, but he won the battle for posterity. The American legal establishment now celebrates Harlan’s moral courage in bucking the consensus of his own time; to Stewart, abortion is an inhuman act akin to enslavement, and he was inviting the judges to summon their own inner Harlans.

He could hardly have picked a better judge to invoke. Harlan’s view in Plessy is one we now see as foundational to liberal democracy, and it’s not just progressives who venerate him. Neil Gorsuch cited him as a role model at his confirmation hearing in 2017, and Chief Justice John Roberts put Harlan’s portrait in the conference room where justices decide cases. But left unasked by Stewart was the question at the heart of his shrewd rhetoric: Would Harlan himself really have dissented in Roe? Would he support those who wish to see it overturned today?

The question can’t be answered with any certainty. No one can probe so deeply into the mind of a historical figure as to ascertain how he or she would view later events. But the unusual prescience of Harlan — who earned the sobriquet The Great Dissenter for his willingness to stand on principle — provides a unique lens through which to view the deliberations of current-day justices. He was thoughtful and foresighted, and even in his own time was seen as something of an apostle of the American system — a man who, in the words of his Supreme Court colleague David Brewer, “goes to bed every night with one hand on the Constitution and the other on the Bible, and so sleeps the sweet sleep of justice and righteousness.”

A man like that presumably would have the sovereign wisdom to untangle the legal and ethical knots in Roe v. Wade. But Stewart may be wrong to locate that wisdom in Harlan’s Plessy dissent. As many have noted, the parallels between Plessy and Roe that Stewart tried to draw go only so far. Perhaps the most notable is their relationship to rights: In Roe, the court conferred a right, the right to choose to terminate a pregnancy within certain parameters, and Stewart asked the court to roll it back. In Plessy, the court refused to confer a right, that of Black people to travel alongside white people. So decades later, when the Supreme Court finally overruled Plessy in the 1954 case of Brown v. Board of Education, it was granting a right — or, more accurately, acknowledging that Black Americans should have had that right all along.

In that respect, what Stewart wants is a ruling that is precisely the opposite of what Harlan argued for in Plessy. Where, then, would he land on Mississippi’s abortion law, and why?

Rights aren’t something to be given and taken lightly. The Constitution exists in part to protect citizens against unwarranted government intrusion. As a man born in a year, 1833, when the eldest Americans still remembered the Revolutionary War, Harlan believed in those enumerated and unenumerated rights as a bulwark against tyranny. The U.S. Constitution was, in his view, the greatest hope for mankind at a time when most of the world was ruled by monarchs.

But so too was Harlan a believer in democracy, in the idea that the will of the people should be expressed through the political branches and not the courts. So the famous Harlan dissent that most bears on the fate of Roe may not be the one in Plessy, but his less heralded but equally prescient dissent in the famous 1905 case of Lochner v. New York.

At first blush, there are few similarities between Roe — and abortion rights — and Lochner, which dealt with unhealthy labor practices. The case centered on industrial bakeries, which often obligated employees to work overnight, sleeping on the tables where they kneaded the bread. Declaring the conditions in such establishments unhealthful, the New York legislature imposed a 60-hour-per-week cap on the amount of time that a person could work there. But a conservative Supreme Court viewed the case differently — as a restriction on the rights of workers who desire to work longer hours because they are so eager to get ahead.

Dismissing the evidence that spending long hours in sweat shops was unhealthy, the court declared that New York’s law violated the Constitution’s grant of personal liberty — in this case, a worker’s right to contract for his labor whenever and however one wished. The pro-business Lochner court located such a right in the so-called “liberty language” of the 14th Amendment — the clause declaring that no state shall “deprive any person of life, liberty, or property, without due process of law.”

That happens to be precisely where the Roe court located the “right to privacy” in 1973.

The parallels between Lochner and Roe unsettled the ground between judicial liberalism and conservatism. Most of today’s conservatives, contemptuous of Roe as a castle built on a shaky foundation, flatly reject the excesses of their Gilded Age forbearers, who constructed their own laissez-faire chateau on the same foundation. Most of today’s liberals, who remain chafed by the Lochner court’s effort to clamp down on labor restrictions, nonetheless have no hesitation about using the same “liberty” clause to defend a right to control one’s body.

Harlan’s dissent in Lochner offers encouragement to both of today’s liberals and conservatives. He argued that Supreme Court justices should not overturn laws unless they are “beyond question, plainly and palpably” unconstitutional and should not impose their own views on state legislatures. Many conservatives would argue that the right to abortion is hardly plain and visible in the Constitution. But Harlan also declined to rule out the idea that the liberty language of the 14th Amendment provided some freedom for individuals; in that case and others, he expressed the view that there were, indeed, boundaries of personal liberty that the government could not cross.

That suggests that Harlan would assess the merits of Roe on the same terms that have proved vexing — and divisive — for later jurists. Does the right to make decisions about one’s body constitute a liberty protection so strong as to be untrammeled by the government’s desire to protect an unborn fetus? Or, put another way, is a democratically elected state legislature’s interest in protecting potential life strong enough to overcome the liberties inherent in citizenship?

Harlan would likely have answered those questions in light of his own unique formula for examining constitutional cases. He paid strict attention to the plain language and intent of the Constitution — factors that many people feel weigh heavily against abortion rights. But he also believed in a just result for the individuals most affected by the decision. More than any other jurist of his era, Harlan was determined that the high court’s decisions not only be based on sound principles, but render a fair outcome for the millions of people who must abide by them.

Harlan felt this pressure most acutely for having grown up in the border state of Kentucky under the looming threat of civil war. Following the lead of the Bluegrass State eminence Henry Clay, Harlan and his father had put their faith in various compromises to forestall the crisis of secession. But all grounds for compromise abruptly disappeared when the Supreme Court issued its disastrously over-broad ruling in Dred Scott v. Sandford. The pain of watching the Supreme Court put the nation on a path to war gave the budding jurist a sense of the fateful finality of high court decisions — and a personal awareness of how there can be no recourse from a bad ruling.

In Harlan’s time, abortion was shrouded in shadows and shame — not a regular topic of moral or political debate. So any sense of how he would consider it as a legal right must be viewed in light of today’s claims. Like many jurists, Harlan drew strength from his faith — he was a church-going Presbyterian all his life — and, like many people today, may have found grounds to oppose abortion rights in his religious beliefs. But Harlan would also have drawn a line between his personal views and his duty as judge, and been mindful of the fact that religion and politics occupy different spheres. In one of his earliest votes on the Supreme Court, he upheld anti-bigamy laws challenged by Mormons as an assault on their faith.

Harlan also lived in a male-dominated world but had stirrings in his own household of changes to come. His wife, Malvina, was an intellectual partner who kept abreast of his work on the court; she attended stag dinners where her husband was honored, seated in the balcony with her daughters. The Harlans’ unmarried daughter Laura became a pioneering career woman and owner of the first female-owned real estate business in Washington. Would he have seen in women’s efforts to move beyond traditional roles a need for greater control over their child-bearing? Perhaps not, though it would have been a reminder that while the Constitution doesn’t change, the issues that come before it are reconfigured by social change.

What most certainly would have entered Harlan’s mind was whether the court’s decision would lead to national discord. In his Plessy dissent, he astutely predicted how the court’s decision would unleash the forces of racial prejudice: “What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.”

In his Lochner dissent, he correctly predicted the crisis that would emerge 30 years later, when justices cited the Lochner precedent to invalidate minimum-wage laws and other New Deal-era social legislation: “A decision that the New York statute is void under the Fourteenth Amendment will, in my opinion, involve consequences of a far-reaching mischievous character; for such a decision would seriously cripple the inherent power of the states to care for the lives, health, and well-being of their citizens.”

Unlike Plessy, Roe isn’t holding back the dreams and ambitions of millions of people; nor is it violating any citizen’s constitutional rights, barring a truly earth-shattering decision that fetuses have “personhood” rights. Abortion rights are, inarguably, a source of bitter anger and division. But would the turmoil surrounding abortion be lessened or strengthened by a court decision reversing Roe? Most prominent in Harlan’s mind would be two concerns: the unusual predicament of a woman obliged to carry an unwanted pregnancy to term, and the prerogatives of a legislature that seeks to deny her that reproductive freedom.

Much more cannot be said.

The legal struggle surrounding abortion cries out for a jurist with the far-reaching vision of Harlan, someone who could blow away the political dust and see the case for what it is. Cases like that of Mississippi’s abortion law — in which nine individuals in black robes make rulings that alter the lives of millions — enhance our appreciation for the Harlans of legal history. We yearn for a higher logic, a deeper level of compassion, a more instinctive commitment to constitutional government. Both sides lay claim to him, but he cannot be claimed. That’s what makes him a model justice for our times.