As he denounced the Dobbs v. Jackson Women’s Health Organization decision Friday, President JoeBiden identified one of the biggest changes since the Supreme Court last considered a challenge to the 1973 Roe v. Wade abortion case almost 30 years ago.
“In the five decades that followed Roe v. Wade, justices appointed by Republican presidents, from Eisenhower, Nixon, Reagan, [George H.W.] Bush, were among the justices who voted to uphold the principles set forth in Roe v. Wade,” Biden said. That didn’t happen again in Dobbs, but it did decades earlier.
That’s what Biden meant when he claimed that Roe “was a constitutional principle upheld by justices appointed by Democrat and Republican presidents alike.” The president added, “Roe v. Wade was a 7-2 decision written by a justice appointed by a Republican president, Richard Nixon,” referring to Justice Harry Blackmun.
Democratic presidential candidates often specifically pledged to make Roe a litmus test for their Supreme Court choices. This includes Biden, who said his nominees must “respect foundational precedents like Brown vs. Board of Education and Roe v. Wade,” putting abortion alongside ending segregation in public schools.
Senate Democrats voted unanimously for Scalia while they were in the minority. But they recaptured the majority in the 1986 midterm elections and then rejected Reagan’s nomination of Robert Bork, who believed Roe was wrongly decided. Kennedy filled the seat instead. They nearly blocked Thomas, who also faced sexual harassment charges from Anita Hill, in 1991. Biden chaired the Judiciary Committee during both fights.
Bush withdrew Miers’s nomination. Justice Samuel Alito, the author of the majority opinion in Dobbs, was nominated and confirmed instead. Democrats blew up the filibuster for lower court nominees to expedite the confirmation of Obama’s judges. McConnell and the GOP in 2017 did the same thing for Supreme Court nominees under Trump.
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