Politics and the judiciary 219in the judicial process, particularly when social issues are being considered,
with numerous interest groups on both sides of the argument submitting
amici curiae briefs.
Having got into this difficult area of social regulation the Court had no op-
tion but to grapple with its complexities. State legislatures passed laws that
were intended to modify the effects of Roe without challenging it head-on.
A Pennsylvania statute required that a woman seeking an abortion should
be fully informed of the consequences of her decision, that she should be
required to undergo a twenty-four-hour waiting period before the abortion
was effected, and that married women must notify their husbands of their
intention. In 1992 the Supreme Court upheld the first two provisions of the
statute, and struck down the third (Planned Parenthood v. Casey). As a result of
this decision thirty-eight states passed laws setting conditions on the access
of women to abortions. Pro-life groups, such as Operation Rescue, conducted
campaigns against abortion clinics, blocking access to them and disrupting
their operation, in order to discourage women from using them. Some pro-
life protesters adopted more violent means, and murders were committed in
the vicinity of abortion clinics in Florida and Massachusetts. The Supreme
Court was then faced with deciding on the legality of local laws designed to
protect women attending clinics and the medical staff who worked there.
Whether or not one approves of the stand that the Court took in Roe v.
Wade, it is a remarkable example of the way that judges can make law con-
trary to the views of the elected representatives of the people. The Roe deci-
sion met with the bitter opposition of the Catholic Church and other groups,
and persistent attempts have been made to reverse it. A number of attempts
have been made to pass legislation through Congress to overthrow it or to
limit its effect. So far those attempts have failed, but this issue remains one
of the most controversial political and legal questions in American politics
today. A number of abortion cases in recent years have been decided by five-
to-four majorities of the justices. The decisive ‘swing vote’ was cast by Justice
Sandra Day O’Connor, who retired in 2006. Her resignation, together with
the death of Chief Justice William Rehnquist in 2005, gave President George
W. Bush the opportunity to nominate two new justices to the Court. With
these new appointments a review of Roe v. Wade would seem to be inevitable.
The nature of judicial review
Undoubtedly, then, the Supreme Court makes policy in a variety of fields,
and it is therefore involved in politics, because in many instances it is the
Court that decides the policies that are put into effect. But there have been
differing views about the nature of the function that the Court performs
when it decides that Congress, president or state legislature has acted con-
stitutionally or unconstitutionally. One view of the role of the judiciary is
that stated as long ago as 1748 by Montesquieu, when he said that the judges
should be ‘no more than the mouth that pronounces the words of the law,