abortion for white women .
Thus , after Reagan ’ s installation in the White House in January 1981 , his Justice Department was hard at work searching for ways to satisfy an explosively growing anti-abortion movement that was daily being jacked into hysteria by Falwell and his supporters ( a process that would soon lead to the first murder of an abortion doctor in the history of the United States ).
Reagan ’ s administration brought together a constellation of conservative white men to change the face of America .
Ted Olson , who later argued Bush v . Gore before the US Supreme Court , led the Justice Department ’ s Office of Legal Counsel . As an assistant attorney general , Olson worked with Counselor to the Attorney General Ken Starr ( appointed to that job in 1981 ), who was later ( 1989 – 1993 ) George H . W . Bush ’ s solicitor general .
Other new faces Reagan hired into his administration included Samuel Alito and John Roberts .
Starr tasked Roberts , a staunchly anti-abortion Catholic , with reviewing the entire history of the US Supreme Court for cases that suggested a legislative or administrative way to overturn Roe v . Wade and possibly even Brown v . Board .
Roberts wrote an extraordinary 27- page document that ’ s almost unknown , in the form of a memo on the letterhead of the Office of the Attorney General to Ken Starr , signed by Roberts as Special Assistant to the Attorney General . It ’ s titled : “ Proposals to Divest the Supreme Court of Appellate Jurisdiction : An Analysis in Light of Recent Developments .”
In it , Roberts proposes using Article III , Section 2 of the Constitution to “ regulate ” and provide “ exceptions ” to what the Supreme Court could do by having Congress pass a law reversing Roe v Wade and Brown v Board , saying in the body of that law they could no longer rule on the issues of abortion and racial integration in education because neither is mentioned in the Constitution .
The process he proposed using is called “ court stripping ,” and involves Congress passing a law saying that Courts can ’ t rule on the constitutionality of a specific piece of legislation or even broad types of legislation .
Roberts wrote that he had found in 1981 :
“[ O ] ver twenty bills which would divest the Supreme Court ( and , in most instances , lower federal courts as well ) of jurisdiction to hear certain types of controversies , ranging from school prayer and desegregation cases to abortion cases .” ( parenthesis Roberts ’)
What Roberts and his researchers had found could shake the foundations of American jurisprudence , altering the power the Supreme Court seized for itself in Marbury v Madison in 1803 .
Court-stripping is based on the Exceptions Clause of Article III , Section 2 of the Constitution , which stipulates that the federal courts may rule “ with such Exceptions , and under such Regulations as the Congress shall make .”
Roberts noted eagerly in his memo that :
“[ T ] he exceptions clause by its terms contains no limit … This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion .”
Roberts was looking at the nuclear option .
If he could build a strong case for Congress to pass a law against abortion ( or against racial integration ) and persuade Congress to use the Exceptions Clause to render the Supreme Court moot , then this could be the magic bullet to restore segregation and recriminalize abortion !
Roberts concluded with a 1968 comment from Sam Ervin of North Carolina , one of the Senate ’ s most outspoken opponents of both racial integration and abortion .
He wrote :
“ As Senator Ervin noted during hearings on the exceptions clause , ‘ I don ’ t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said , which is that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress .’”
Roberts continued , in agreement with Ervin :
“[ W ] e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning , such as the due process clause or the prohibition on unreasonable searches and seizures .”
This was clearly the original intent , Roberts argued , because , he wrote :
“[ T ] he exceptions clause ‘ was not debated ’ by the Committee of Detail which drafted it , or the whole Convention .”
Citing the Federalist , no . 81 , Roberts wrote :
“ Hamilton noted that the clause would enable ‘ the government to modify [ courts ’ jurisdiction ] in such a manner as will best answer the ends of public justice and security ,’ and that appellate jurisdiction was ‘ subject to any exceptions and regulations which may be thought advisable .’”
Section III of Roberts ’ s screed on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the Supreme Court and block the Court from ruling on particular issues .
Beginning with the 1869 decision Ex parte McCardle , Roberts wrote :
“ A unanimous Court upheld the power of Congress to divest the
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