A conservative Supreme Court won’t end abortion

Oct 26, 2016 by

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The U.S. election of 2016 is just a few weeks away (thank you, Jesus).

Over the course of this election season, it has been interesting to watch the conservative Christian reaction to Donald Trump. What originally was a “No way!” during the primary season slowly became “He’s our only hope” in the general election.

I knew all along that the majority of the right-wing “never Trump” folks would eventually cave and find a reason to not only support him, but to do so unapologetically. With the help of folks like Franklin Graham, many of those who once plugged their noses over the idea of supporting someone they know in their heart is completely opposed to anything that remotely resembles Christianity now have a reason to support him: the Supreme Court.

Graham has long been directing his followers to this issue more than any other. With several of the justices nearing retirement, the next president will likely appoint an above-average number of individuals to the court, and the Right is now seeing this as their great hope of advancing their cause. While they have spent years denouncing “activist judges,” they have now made exactly that a central justification for supporting Trump.

I mean, if we had a SCOTUS filled with justices largely appointed by Republicans, we wouldn’t have Roe v. Wade, right?

Wrong. In fact, the truth is the opposite: it was a majority Republican-appointed SCOTUS that legalized abortion in the first place. The makeup of SCOTUS when Roe v. Wade was decided was as follows:

  • Harry A. Blackmun
  • William J. Brennan
  • Warren Earl Burger
  • William Orville Douglas
  • Thurgood Marshall
  • Lewis Franklin Powell, Jr.
  • Potter Stewart
  • William H. Rehnquist
  • Byron R. White

Only two justices voted against Roe v. Wade: Rehnquist and White. Rehnquist was a conservative appointed by Richard Nixon, and White was appointed by John F. Kennedy. So, what was the makeup of those justices who voted to legalize abortion?

Blackmun (R-Nixon)

Brennan (R-Eisenhower)

Burger (R-Nixon)

Douglas (D-Roosevelt)

Marshall (D-Johnson)

Powell (R-Nixon)

Stewart (R-Eisenhower)

One need not be a math major to calculate this one: Five of the seven justices who made abortion legal in America were appointed by Republican presidents. Even in the time since Roe v. Wade, we’ve had periods of Republican dominance of SCOTUS — at one point with eight of the nine justices were Republican! And yet, there have still been plenty of rulings that were objectionable to the Right — including the upholding of Roe v. Wade.

So here’s my question: If legalized abortion was given to the U.S. by a Republican SCOTUS, and if it has been upheld by an almost unanimously Republican SCOTUS, why is one of the major selling points of this election the idea that the Right will get more court picks so that they can finally overturn it?

Seems silly to me.

Even more, it’s actually the hight of hypocrisy on multiple levels. Conservatives have long blasted liberals for relying on government policy and regulation to address issues (say, gun violence), arguing that it’s “hearts” we need to change instead of laws. Further, they’ve decried the use of judges in the U.S. process of law when they disagree with rulings (aka “activist judges”). Yet, when it comes to this single issue, all the previous logic gets summarily dismissed.

Whereas the Bible teaches that we are to place no hope in elected leaders (Psalm 146:3), the religious Right is doubling down on putting hope in a conservative SCOTUS in order to get what they want. And it’s a false hope, because a conservative SCOTUS is who gave them the very thing they hate.

Franklin Graham and crew can try to convince you that having a Republican SCOTUS is the key to the future, but what they’re not telling you is the key they played in the past. Neither are they telling how unpredictable justices can be once they put on that robe.

By making vacant seats on SCOTUS the primary campaign issue without double-checking how Republican-appointed justices have ruled in the past, the joke just might be on them.

Benjamin L. Corey, an Anabaptist author, speaker and blogger from Auburn, Maine, is the author of Undiluted: Rediscovering the Radical Message of Jesus. This first appeared on his blog, Formerly Fundie, where he discusses the intersection of faith and culture from a progressive/emergent/neo-Anabaptist vantage point.


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