WASHINGTON (CN) — The American public received a wake-up call this week when a draft opinion overruling Roe v. Wade leaked from the Supreme Court. While the thought of winding back reproductive rights some 50 years was a shock to some, court watchers have been anticipating this moment for years as the collision of constitutional hardball and luck created a conservative supermajority of justices to tackle a long-sought goal.
It was in the 1980s following Roe that the moral majority came to power. With their sights on the 1973 precedent protecting a woman's right to choose, legal conservatives began organizing to advance conservative causes. The Federalist Society emerged as a key player, particularly successful in finding and elevating conservative justices. These judges started challenging the legal reasoning in Roe while embracing textualism and originalism.
“Starting in the 1980s, there came a very concerted effort on the right to develop an intellectual legal framework that would not just operate to challenge something like Roe but to also use the courts to advance conservative causes,” Maya Sen, a professor at the Harvard Kennedy School, said in a phone call. “It had its intellectual origins roughly around the Reagan era with the start of the Federalist Society.”
This movement brought a challenge against Roe to the Supreme Court in the 1992 case Planned Parenthood v. Casey. At the time — as is now — the majority of the justices had been nominated by Republican presidents. Still the justices upheld Roe in a 5-4 decision that year, a possibility that seems far more remote today.
“The Supreme Court in 1992 had more liberals and had more centrists,” Miranda Yaver, a politics professor at Oberlin College, said in a phone call. “The swing of justice at the time was Sandra Day O'Connor, who was to the left of Anthony Kennedy.”
The court’s decision in Casey was a shock to the movement that thought the court might overrule Roe and led to Republicans appointing conservative justices with more firm stances on Roe and reproductive rights.
“I think the right became much more concerned about appointing judges who potentially drift over to a liberal side,” Sen said. “So moving forward … they were very opposed to candidates who could potentially be wobbly on the issue of reproductive rights.”
A turning point for the movement to overturn Roe came in 2016 with the death of Justice Antonin Scalia while President Barack Obama had just under a year left in his second term. Come June — with the Republican Senate stonewalling Obama's nominee, the now Attorney General Merrick Garland — the Supreme Court ruled 5-3 in Whole Woman's Health v. Hellerstedt that undue burdens can not be put on people seeking abortions. Justice Anthony Kennedy sided with the liberals.
“Before Scalia died, it was a 5-4 conservative majority, but Anthony Kennedy was the person who was in the middle, and Anthony Kennedy is probably not the person who is going to go out and overturn Roe,” Sen said. “Then when Scalia died, that left the seat open for Obama to fill. …That would have shifted the balance of power 5-4 in the liberal direction so that would have made it extremely hard or basically impossible to overturn Roe.”
Garland's nomination never even received a hearing from the Senate Judiciary Committee in Obama's lame-duck year. Once President Donald Trump took office, it was Justice Neil Gorsuch who went on to claim Scalia’s seat.
But it was the following year with the retirement of Justice Anthony Kennedy that Republicans really shook up the status quo. Though Kennedy himself was a Reagan nominee, his tendency to side with liberals made him a swing vote on the bench. Trump replaced Kennedy with the much more conservative Justice Brett Kavanaugh.