Justice John Paul Stevens turns 87 today. He is a remarkably sharp human being for any age, but still, that number gives one pause. In keeping with yesterday's theme of quoting other abortion opinions, I thought I'd excerpt here the closing paragraph of Justice Blackmun's concurrence in Planned Parenthood v. Casey. He stated: "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today."
Some people criticized Justice Blackmun at the time for expressly politicizing the issue, but the criticism seems to miss the mark because everybody already knew the issue was politicized, and both the plurality (actually the majority on this point) and the dissent talked about the interaction between politics and the Court's jurisprudence.
It will be interesting to see whether and how Wednesday's decision plays politically. I have always understood "partial birth abortion" as a wedge issue. Someone who is truly pro-life can't possibly think that killing a baby after it's partially delivered is much worse than killing it inside its mother's womb, but people who are on the fence or pro-choice with reservations could be moved to think (if only, as Judge Posner noted, through ignorance) that there is something especially horrific about this class of abortions. That's why, after all, partial-birth abortion bans were enacted even in states with pro-choice majorities. To the extent that yesterday's decision approves the federal ban, perhaps it neutralizes this particular wedge issue, which ought to favor pro-choice candidates. In fact, however, I think the likely effect will be to motivate both pro-life and pro-choice activists, as they realize that Roe itself may be on the table after one more appointment.
But the main point of this post is simply to say happy birthday to Justice Stevens.