The Nine

by Jeffrey Toobin

  When the term ended in June 1991, Souter did not so much leave Washington as flee. He returned to the converted farmhouse in Weare, New Hampshire, that had been his grandparents’ home and where he had grown up. (Contrary to rumor, Souter did not live with his mother; she had moved elsewhere.) The swirl of events leading to his appointment had deprived him of the time to think about the magnitude of the task before him. In a letter declining an invitation from Blackmun to join him on his annual summer trip to Aspen, Souter wrote, “I have wanted as much as possible to be alone to come to terms in my own heart with what has been happening to me…. I have also felt the need to engage in some reading and thinking about matters that will be coming before the Court.” He wanted his summers, he wrote later, “wholly free for…self-education. I need some period of the year when I can make a close approach to solitude.”

  When Souter returned the following fall for his second term—the year of Casey—it became clear both that he had been underestimated in Washington and that he brought a distinctive judicial philosophy to the bench. For most of the twentieth century, the political left and right had their clear judicial analogues on the Supreme Court. In rough terms, William Brennan and his allies used the Constitution as a vehicle for liberal change—to build a society with greater freedom and equality. On the other side, Rehnquist and Scalia generally put forth the view that courts should defer to political majorities and legislators and interpret the Constitution in line with the original intent of the framers. There was, however, a third tradition in American law, which was less familiar to the public because, unlike the others, it did not neatly reflect the division between the Democratic and Republican parties. But it was to this third tradition that David Souter belonged.

  At his confirmation hearings in 1990, Souter made his affiliation plain. At the time, Souter was widely regarded as a “stealth” candidate because even though he had been attorney general of New Hampshire and a justice of the state supreme court, he had not taken public stands on the most controversial judicial issues of the day, like abortion. Prochoice advocacy groups assumed that as a justice Souter would simply do the bidding of the contemporary Republican Party. As the National Organization for Women said in a leaflet distributed during his hearings, STOP SOUTER OR WOMEN WILL DIE.

  In those hearings, Souter did not so much take sides in the great legal debate of the day as puzzle the partisans on both sides. The hearings revealed that Souter had given deep thought to the Constitution and embraced a philosophy most closely associated with John Marshall Harlan II, who served on the Supreme Court from 1955 to 1971. Harlan, whose grandfather and namesake served on the Court from 1877 to 1911, was hardly a radical liberal; indeed, he dissented from many of the Warren Court’s most celebrated rulings. But neither was Harlan exactly a conservative, at least in modern terms. He believed that law existed to preserve the stability of society and that adherence to precedent best guaranteed a limited and predictable role for the judiciary. Above all, he believed in the rule of stare decisis. Like Harlan, Souter put his faith in the common law, the accumulated wisdom of judges and courts going back to the Middle Ages.

  Also like Harlan, Souter believed that the Constitution expressed a libertarian ideal—that freedom from the restrictions of government counted as much as, or more than, the right of legislators to pass laws limiting individual freedom. And the people’s rights were not limited by the precise language of the Constitution, either. One of the strongest arguments against so-called unenumerated rights in the Constitution is that a written document should be limited in meaning to its precise terms.

  In a famous dissenting opinion from 1961, Harlan rejected that view, stating that “the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion,…and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” Harlan’s view on unenumerated rights had become a crucial intellectual building block in the Court’s future decisions recognizing the right to privacy and, later, the right to abortion.

  For David Souter, in 1992, the question then was whether restrictions on the right to choose abortion were the kind of “arbitrary imposition” prohibited by the Constitution. The way that Souter addressed that kind of question was to look at the common law and precedent. Thus, his proposed question, the key issue in the case: “What weight is due to considerations of stare decisis in evaluating the constitutional right to abortion?” For Souter, the answer wouldn’t just resolve Casey but define his judicial worldview.

  Even early in Rehnquist’s tenure as chief justice, the Court’s oral arguments were transformed from the Burger years. Throughout the eighties, it was a quiet bench. Brennan, Marshall, and Blackmun asked hardly any questions, and Burger, White, and Powell only a few more. The change began when Scalia joined the Court in 1986. His pugnacious wit and open partisanship raised the energy level in the courtroom, and lawyers could soon expect a hot bench on even the most arcane issues. One way O’Connor prepared for oral argument was to plan questions with her clerks, and she began a tradition of asking the first question of most lawyers. Rehnquist and Kennedy liked to talk, too, and the overall level of volubility on the Court made what happened on April 22, 1992, so extraordinary.

  “We’ll hear argument next in No. 91–744, Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey,” Rehnquist said in his familiar long-voweled midwestern drawl. “Ms. Kolbert?”

  “Mr. Chief Justice, and may it please the Court. Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case,” Kolbert began. “Since this Court’s decision in Roe v. Wade, a generation of American women have come of age secure in the knowledge that the Constitution provides the highest level of protection for their child-bearing decisions.”

  That was as long as the Court allowed most advocates to speak without jumping in with questions. But there was only silence from the justices, so Kolbert kept going. “This landmark decision, which necessarily and logically flows from a century of this Court’s jurisprudence, not only protects rights of bodily integrity and autonomy but has enabled millions of women to participate fully and equally in society. The genius of Roe and the Constitution is that it fully protects rights of fundamental importance. Government may not chip away at fundamental rights, nor make them selectively available only to the most privileged women.”

  More silence from the bench. A murmur began in the audience, a very knowledgeable group, especially in a big case like this one. Why weren’t they asking any questions? Why were they paralyzed?

  Three minutes, four minutes, still no questions from the justices, and no retreat from Kolbert. Her strategy was the same as the one in her brief—go for broke, all or nothing, overturn the Pennsylvania regulations in their entirety or overturn Roe v. Wade. “Our nation’s history and tradition also respects the autonomy of individuals to make life choices consistent with their own moral and conscientious beliefs,” Kolbert said. “Our Constitution has long recognized an individual’s right to make private and intimate decisions about marriage and family life, the upbringing of children, the ability to use contraception. The decision to terminate a pregnancy or to carry it to term is no different in kind.” Finally, after eight minutes, O’Connor spoke up, in her characteristic singsong earnestness, reminiscent of a nursery school teacher.

  “Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe [v.] Wade in all its aspects,” she said. “Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?”

  Kolbert replied, in
so many words, no. She was not going to concede that the individual restrictions could be separated from the larger question of preserving Roe. Kennedy tried, too—“You have a number of specific provisions here that I think you should address”—but Kolbert wouldn’t yield. To her, ruling on Casey meant ruling on Roe.

  At the conference of the justices that week, the result was muddled. Seven justices—Rehnquist, White, O’Connor, Scalia, Kennedy, Souter, and Thomas—wanted to uphold most of Pennsylvania’s restrictions on abortion. Only Stevens and Blackmun wanted to strike them down. But there were tensions within the majority. Rehnquist, White, and Scalia were on record wanting to overrule Roe, and Thomas (his confirmation uncertainty notwithstanding) wanted to join them. But there was not yet a fifth vote to overturn Roe outright. Neither O’Connor, Kennedy, nor Souter was ready to go that far. So at the end of the conference, Rehnquist assigned Casey to himself, intending to write an opinion that allowed states almost a free hand in regulating abortion. As a practical matter, Roe would be overturned, but not in so many words.

  Then, early the following week, Souter decided to pay a visit to O’Connor.

  4

  COLLISION COURSE

  Outsiders tend to be surprised by how rarely Supreme Court justices speak to each other, one-on-one. Under Rehnquist, the nine spent a good deal of time together as a group. Argument days, most Mondays and Wednesdays when they were in session, were preceded by the traditional thirty-six handshakes, each justice with every other, and they had lunch together most of these days as well. There were also conference discussions every Friday during these weeks. After the conference, however, the justices tended to communicate with one another through memos, which were often drafted by their law clerks. (After e-mail became ubiquitous, the memos also circulated electronically, but always with paper copies as well; among the justices, only Thomas and Breyer, and eventually Stevens, were fully comfortable communicating by e-mail.)

  There was, in short, very little of the informal contact of normal office life, just a few phone calls and even fewer visits to one another’s chambers. Some justices had substantive discussions with individual colleagues as rarely as once or twice a year. So Souter’s walk down the hall to visit O’Connor had more significance than it would have in another law office. It was meaningful, too, that Souter went to see O’Connor, not the other way around. All of the justices, not just Souter, went to O’Connor. The way to win a majority in the Rehnquist Court was to earn O’Connor’s support, so her colleagues invariably came to her as supplicants.

  In his second year on the Court, Souter sought nothing less than to undermine the central tenet of the conservative revolution which his appointment was supposed to advance. Souter was appointed to overturn Roe v. Wade; instead, he was going to try to save it.

  In his gentle manner, Souter told O’Connor he was uncomfortable with the chief’s approach in Casey. Couldn’t they find a way to preserve the core of Roe while upholding most of the specific provisions of the Pennsylvania law at issue? Indeed, Souter said, O’Connor’s own opinions pointed the way.

  O’Connor’s views on the right to abortion grew out of the original decision in Roe. There, in 1973, Blackmun had written that the “fundamental” right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” but the right to abortion was not absolute. Where a state could show that there was a “compelling state interest” in limiting the right to choose abortion, the Court would approve the restriction. To discern the state’s interest in regulating abortion, Blackmun devised a framework that relied on pregnancy’s trimester calendar. The justice canvassed the medical literature and determined that in the first trimester the prospect of carrying a pregnancy through to childbirth was clearly more risky for a woman than an early-term abortion. Thus, he wrote, the state could not restrict abortion during this period, and the decision “must be left to the medical judgment of the pregnant woman’s attending physician.” (Much of the opinion in Roe was expressed in terms of the rights of the physician, rather than those of the woman; as a former general counsel for the Mayo Clinic, in Minnesota, Blackmun had a high regard for the medical profession.)

  But as the pregnancy continued, Blackmun wrote, laws could reflect the government’s interest in protecting the fetus, not just the woman’s rights. After the first trimester, the state could regulate abortions, but only in “ways that are reasonably related to maternal health.” Finally, “subsequent to viability,” the state could restrict or even ban abortion, except when it is necessary “for the preservation of the life or health of the mother.” In essence, Roe introduced a sliding scale on which a woman’s right to abortion was greatest early in her pregnancy and could be limited as the fetus grew. Even so, Blackmun insisted, any law restricting abortion, even late in a pregnancy, would have to ensure protection of not only a woman’s life but also her health. Blackmun elaborated on this point in his lesser-known but still important opinion in Doe v. Bolton, a challenge to Georgia’s abortion law, which was decided by the Court on the same day as Roe. Again expressing the right to abortion as a doctor’s choice, Blackmun wrote that the decision to perform the procedure “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” In other words, when a woman’s health was at stake, at whatever stage of the pregnancy, she and her doctor should be able to choose an abortion.

  O’Connor took an independent tack on abortion from the beginning of her tenure on the Court. In her first important case on the subject, in 1983, the majority struck down a set of rules in Akron, Ohio, that were clearly designed to discourage women from having abortions, including a regulation requiring that all abortions occurring after the first trimester take place in hospitals and another calling for a twenty-four-hour waiting period for women seeking abortions. O’Connor wrote a dissenting opinion, in which she defended the regulations and attacked part of Blackmun’s logic in Roev. Wade. Improvements in medical technology, O’Connor declared, would render the trimester analysis obsolete. Increasing numbers of premature infants would be able to survive birth at ever-earlier stages of pregnancy, she argued, and women would be able to have safer abortions later in pregnancy. “The Roe framework, then, is clearly on a collision course with itself,” she continued, in what became her most famous sentence as a justice. “As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”

  O’Connor proposed a new legal framework to replace Roe. Adopting a phrase contained in a brief filed in the case by President Reagan’s Justice Department, she wrote that abortion regulations should be upheld unless they created an “undue burden” on a woman seeking to have the procedure. O’Connor didn’t define exactly what she meant by an “undue burden,” but she argued that, according to such a standard, the Akron restrictions should be upheld. In fact, when it came to medical science, Blackmun turned out to be more prescient than O’Connor. She was wrong to conclude that the point of viability would shift in any meaningful way. In Roe, Blackmun had written, “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Early in the twenty-first century, more than three decades after Roe, it is still rare for a fetus younger than twenty-three or twenty-four weeks to survive. (The term of a normal pregnancy is thirty-eight to forty weeks.)

  As usual when it came to controversial issues, O’Connor’s preference was for the matter to be settled in the political arena rather than in the courts. As a former state legislator herself, she always had a predisposition to favor the judgments of these officials. Quoting an opinion by Justice Oliver Wendell Holmes Jr. from 1904, O’Connor wrote, “In determining whether the Sta
te imposes an ‘undue burden,’ we must keep in mind that, when we are concerned with extremely sensitive issues, such as the one involved here, ‘the appropriate forum for their resolution in a democracy is the legislature.’ ”

  But through her first decade on the Court, even as O’Connor criticized Roe, she never called for its outright rejection. In 1989, the Court came close to overturning Roe when it approved a Missouri law prohibiting most abortions in public hospitals. In Websterv. Reproductive Health Services, Rehnquist, joined by White, Scalia, and (for the most part) Kennedy, all but called for the end of Roe. But O’Connor, characteristically, held back, writing, “When the constitutional invalidity of a State’s abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully.”