Few court cases have been as controversial in the United States as 1973’s Roe v. Wade decision. It has become one of the major touchstones in American politics ever since. As controversial as it is, the fact that a shift in power on the Supreme Court has overturned Roe v. Wade has led to a great deal of political and legal turmoil. A lot of the frustration concerns how a modern court can just overturn a previous court’s decision simply because of a shift in ideology. However, historically speaking, this is not new. There have been reversals in the Supreme Court before that were just as controversial and saw as much an attack against the high court as the recent Roe reversal.
First, the law. The recent decision did not make abortions illegal. It simply put the decision for legality back to the states where it had been before 1973. Elected legislators will now make the decisions, not the courts. The U. S. Supreme Court, in a 5-4 decision, claimed the original Roe v. Wade was not made on Constitutional grounds, as the Constitution does not mention abortion. Nor does any federal law or common law. The idea is that a federal law allowing abortion should be made by Congress, not the courts. Until then, the Supreme Court said it should be a state issue. According to the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As I said, this is not the first time the Supreme Court overturned a decision from a previous court and one that brought about a similar emotional response. The case was the 1954 Brown v. Board of Education that overturned the 1896 Plessy v. Ferguson case that allowed for segregation. In that infamous 1896 case, the court ruled that segregation was legal if separate and equal accommodations were made. In other words, you could deny Black children admittance to White schools if an equal Black school was provided.
There are some similarities between the Brown decision and the current one. In both cases, a Republican president made a new judicial appointment after an extended time of Democratic leadership. With the Roe case, Trump’s appointment of Amy Barrett tipped the balance of the Supreme Court from left to right. The Brown decision was a bit different as the entire Supreme Court was appointed by Democrats after the five terms of Roosevelt and Truman when Dwight D. Eisenhower won the presidency. Yet even with a completely Democratic court, there was still a deep division. Unlike today, the parties were not completely ideological on one side. Roosevelt did not start off his presidency on the far left and many in the party, especially in the south where Democrats had been the strongest for the longest period, still held conservative views. As such, the Supreme Court was not so much divided between two parties as it was divided on the role of the high court. While the entire court were “New Dealers,” half of the court believed it was not the job of the court to make policy, only to interpret the law. The other half, however, were more activists who believed the courts should play a role in civil liberty.
The change happened when Chief Justice Fred M. Vinson died, and the newly elected Republican President Eisenhower appointed Earl Warren as Chief Justice. Vinson had supported the “separate but equal” clause in Plessy and ordered schools like the University of Oklahoma to allow Ada Lois Sipuel, a Black woman, entrance into law school because there was not an equal facility in the state for her. Yet it was Warren who turned the court to a majority of activist judges and went as far as ruling segregation illegal in Brown.
Where the two cases continue to have similarities is in the fall-out. Legally, Warren and the Supreme Court took a hit, being accused of trying to overtake the role of Congress and going against the will of the people’s elected representatives. Nineteen Senators and 81 Representatives wrote the “Southern Manifesto,” stating, “We regard the decision of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people. The original Constitution does not mention education. Neither does the 14th amendment nor any other amendment. The debates preceding the submission of the 14th amendment clearly show that there was no intent that it should affect the systems of education maintained by the States. The very Congress which proposed the amendment subsequently provided for segregated schools in the District of Columbia.”
More interesting was the end of the Manifesto, which makes similar arguments as pro-abortion advocates today: “With the gravest concern for the explosive and dangerous condition created by this decision and inflamed by outside meddlers; We reaffirm our reliance on the Constitution as the fundamental law of the land. We decry the Supreme Court’s encroachments on rights reserved to the States and to the people, contrary to established law and to the Constitution. We commend the motives of those States which have declared the intention to resist forced integration by any lawful means. We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.” Like today, the arguments are about the courts taking away the rights of the people.
Please note that I am not arguing for or against abortion or calling pro-abortion advocates the same as 1950s racists. Yet, historically speaking, we have seen similar Supreme Court decisions that brought about just as much contention and fighting about the role of the courts, especially when changing a law that has been around for so long.
Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog or on Facebook.