This, then, was the state of O’Connor’s thinking when Souter paid her his visit. Opposed to Blackmun’s reasoning in Roe. Supportive of efforts by state legislators to limit abortion. Cautious—as always—about getting out of step with public opinion. But “time enough” had passed. She had to take a stand on Roe.
Even though the conference in Casey resulted in Rehnquist’s assigning himself the majority opinion, that didn’t end the matter as far as Souter was concerned. He hated to see the Court drawn so directly into a contested political issue. He believed, perhaps naively, that there was an island of “law” that could be insulated from the daily rush of events. It had been almost twenty years since Roe, and while the Court had allowed states to regulate and limit abortion during that time, there had been little doubt that the Constitution forbade a complete prohibition on abortion. Yet Rehnquist’s position at conference, and the opinion he was writing, would clearly permit a total ban.
O’Connor agreed with Souter. She had a less mystical attachment to the idea of precedent than Souter did, but her more political instincts led her in the same direction. The country had come to terms with Roe.
Something else was bothering O’Connor, too. She was appalled by the provision of the Pennsylvania law that required married women who were seeking abortions to inform their husbands. The court of appeals had struck down this provision, but Rehnquist proposed to uphold the view of the dissenting judge from the lower court. But that opinion—the one by Judge Samuel Alito—outraged O’Connor. She saw this provision as paternalism at best and sexism at worst. O’Connor had finely tuned radar for discrimination against women (something she sometimes lacked for bias against, say, African Americans), and she couldn’t abide the notion that the Court would uphold such a law.
So Souter and O’Connor were aligned on the idea that the Court should uphold what they came to call the “essence” of Roe, and they agreed that they should try to strike down the spousal notification provision. But they had only four votes for these positions—their own, plus those of Blackmun and Stevens, who were ready to reject the whole Pennsylvania law. They knew that there was only one place to go for a possible fifth vote—the chambers of Tony Kennedy.
Souter and Kennedy could hardly have approached the job of Supreme Court justice more differently. Souter avoided attention, loathed controversy, and disliked high-profile cases. Kennedy relished his public role and sought out the opinions that would make the newspapers. Seated at his keyboard typing furiously, Kennedy always labored most closely on the sections of opinions that might be quoted in the New York Times.
If Souter thought the proper role for a judge was as the (nearly) silent steward of judicial tradition, Kennedy had a much more romantic notion of a robed crusader for the rule of law. He liked to talk about the “poetry” of law and of great “teaching cases,” that is, opinions that instructed law students on timeless principles. Kennedy had been a judge for close to his whole professional life, since Gerald Ford made him the nation’s youngest member of the court of appeals in 1975, when he was thirty-nine. Through his twelve years on the Ninth Circuit, and even in summers while he was a justice, Kennedy continued teaching at the McGeorge School of Law in his hometown of Sacramento. He saw law as not just a collection of cases but a system that ought to be explainable to, and understood by, the next generation of lawyers.
Kennedy was also a serious Catholic, of pre–Vatican II vintage, who went to Mass every Sunday and prayed in the old-fashioned manner, hands clasped before him. Abortion repelled him. He fully adopted his church’s teachings on the subject. Once, before he joined the Court, he had called Roe the “Dred Scott of our time,” a reference to the infamous 1857 ruling that sanctioned slavery and helped spark the Civil War. But Kennedy knew the difference between his duties as a judge and his convictions as a Catholic. As he once wrote, “The hard fact is that sometimes we must make decisions we do not like.” Even though he and his church opposed abortion, that did not answer the question of whether the Constitution protected it.
Kennedy’s peculiar combination of traits—his earnestness and his ambition, his naiveté and his grandiosity, his reverence for the law and his regard for his own talents—made him receptive to Souter’s appeal. Kennedy thought there was nobility in judging; saving Roe would show the world that the justices were something more than mere pols. A statesmanlike compromise suited both Kennedy’s politics and his conception of the role of the judge.
So Kennedy signed on with Souter and O’Connor. His was the most dramatic switch of the three, because it had been only three years since he voted with Rehnquist in Webster, an opinion that advocated overruling Roe. Even more dramatically, Kennedy had clearly supported Rehnquist at the conference in Casey. No vote is ever final on the Court until an opinion is announced, but changes from conference votes are still unusual, especially when, as in Casey, it was Kennedy’s vote that allowed Rehnquist to start drafting his majority opinion. Nonetheless, in early May, Souter, O’Connor, and Kennedy decided to work together secretly on Casey, each of the justices telling only a single law clerk in their chambers that they were planning a joint opinion.
Unaware of these machinations, the chief justice continued drafting what he expected would be the majority opinion. Writing with typical dispatch, Rehnquist circulated a draft on May 27, just a little more than a month after the argument. According to the chief, the Court would uphold all of the provisions of the Pennsylvania law. Rehnquist wrote, “The Court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a ‘fundamental right.’ ” If the chief’s opinion won the support of a majority of justices, states would be free to regulate or even ban abortion altogether. As Blackmun wrote in the margin of the first page of Rehnquist’s draft: “Wow! Pretty extreme!”
The “troika,” as they would later become known, agreed with Blackmun’s view of the chief’s draft opinion. The way Rehnquist summarily dismissed Roe eliminated any chance that he might draw Souter, O’Connor, or Kennedy back into a majority with him. In their secret collaboration, Kennedy had agreed to write the opening section of the opinion, where they announced that they would preserve Roe. Souter would write next, about the importance of stare decisis, and O’Connor would write the final section, explaining why the spousal notification provision of the Pennsylvania law had to be struck down. On May 29, two days after Rehnquist circulated his draft, Kennedy sent a handwritten note to Blackmun:
Dear Harry,
I need to see you as soon as you have a few free minutes. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.
If today is not convenient, I will be here tomorrow. Please give me a call when you are free.
Yours, Tony
At their meeting the following day, Blackmun saw how anguished Kennedy was about his role in preserving the right to choose abortion. Because of Roe, no justice had received more death threats than Blackmun, and he comforted Kennedy by telling him the mail sometimes brought pleasant surprises, too. Blackmun showed his junior colleague a letter from a nun, of all people, praising him for allowing a desperate woman to get an abortion. After Kennedy left, the always meticulous Blackmun wrote himself a simple note on a piece of pink Supreme Court memo paper: “Roe sound.” As Linda Greenhouse observed in her book about Blackmun, “The choice of this slightly old-fashioned word was significant. To a lawyer, ‘sound’ conveys not just survival but correctness and legitimacy.” Roe—the right to choose—was sound.
Souter, O’Connor, and Kennedy circulated the result of their secret collaboration—a draft opinion of sixty-one pages—on June 3. Rehnquist took the news with equanimity. Antonin Scalia did not.
Roe represented everything Scalia most despised, and still despises, about modern jurisprudence—and the modern world. He had defined his career as a justice by his insistent and unwavering demand that the case be overturned.
Scalia was fif
ty-six years old in 1992, a veteran of six years on the Court, at the height of his intellectual and physical powers. He was squat and neckless, with a five o’clock shadow that was almost as pronounced as Souter’s. He dominated the Court’s oral arguments with barbed questions and jokes, and his opinions were forceful, oratorical, and a pleasure to read. He was the dominant personality on the Court, and he had the clearest, most identifiable judicial philosophy among the justices. But by the time of Casey it was clear that Scalia’s zest, passion, and intelligence did not translate into the most important thing one member of a court of nine could have—influence.
O’Connor, still in her uncertain early years as a justice when Scalia joined the Court, was the first to be alienated by him. In the Webster case, Scalia had written that her opinion declining to address Roe “cannot be taken seriously.” Later, as she became more confident, O’Connor would ignore Scalia’s taunts—“That’s just Nino,” she would say—but at first his contempt burned her. Scalia’s breach with Kennedy was even more surprising. Both men were born in 1936, observant Catholics, contemporaries at Harvard Law School, and appointed to the Court a year apart; Kennedy bought a home in the same Virginia suburb as Scalia. For a time, the portly New Yorker and rangy Californian were even unlikely jogging partners. But Kennedy, a politically as well as temperamentally moderate person, came to be repelled by Scalia’s dogmatism.
In time, Scalia would revel in his isolation and wear it almost as a badge of honor. His judicial philosophy was so clear and consistent, and his obligation to follow it so principled, that he could not bring himself to bargain with his colleagues. “Originalists have nothing to trade!” he would say. “We can’t do horse-trading. Our view is what it is, and we write our dissents.”
But originalism never caught on with anyone else on the Court, except Thomas. Justices like O’Connor, Souter, and Kennedy believed there was more to constitutional interpretation than just divining the intent of the framers, including such factors as subsequent decisions of the Court, the expectations of the public, and the underlying values in the Bill of Rights, not just its text. In short, these justices believed in a “living Constitution,” a concept for which Scalia had nothing but contempt. “A ‘living Constitution’ judge,” Scalia once explained, is a “happy fellow who comes home at night to his wife and says, ‘The Constitution means exactly what I think it ought to mean!’ ”
Scalia thought Roe was the worst example of the living Constitution run amok—until he read Kennedy’s section of the joint opinion in Casey. Kennedy had a weakness for high-flown, sometimes rather meaningless rhetoric, and he was at his airy best (or worst) in Casey. “Liberty finds no refuge in a jurisprudence of doubt,” he began. In plain English, Kennedy meant that law had to be consistent and predictable, but there was in fact a noble lineage to “a jurisprudence of doubt.” Theorists like Oliver Wendell Holmes Jr. and Learned Hand thought it was critical for judges to reflect doubt that their conclusions were correct for all time. Worse, from Scalia’s perspective, was Kennedy’s defense of the right to privacy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Even many supporters of Roe would have trouble defining “the mystery of human life,” much less asserting that it was protected by the Constitution, but such phrases sent Scalia into a genuine rage. In the last days before Casey was announced, traditional notions of Court etiquette were tossed aside in the heat of the battle. Scalia visited Kennedy at home to try to talk him out of his position; one of Scalia’s law clerks waylaid Souter in the hallway to lobby him to change his mind. Nothing worked.
Indeed, the exclamation point to the troika’s victory in Casey came after a typically astute behind-the-scenes maneuver by Stevens. Through its many drafts, the troika’s opinion had become somewhat disorganized and confusing. On June 18, Stevens wrote to the three authors, “You have indicated that you would welcome suggestions that will enable Harry and me to join as much of your opinion as possible.” So Stevens proposed an artful reorganization of the troika’s work, thereby making it possible for the two liberals to join the opinion from the beginning. “In my view,” Stevens went on, “an opinion that begins as an opinion of the Court”—that is, for a majority of justices—“and continues to speak for a Court for 25 pages would be far more powerful than one that starts out as a plurality opinion and shifts back and forth between a Court opinion and a plurality opinion.” Kennedy accepted Stevens’s idea with alacrity, and the historical significance of the opinion was immediately enhanced.
As he often did, Scalia had to content himself with writing an alternately weary and angry dissent, where he would “respond to a few of the more outrageous arguments in today’s opinion, which it is beyond human nature to leave unanswered.” The issue in the case, he wrote, is “whether the power of a woman to abort her unborn child is a ‘liberty’…protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed.” (Clarence Thomas, who in his confirmation hearings just months earlier professed an open mind about Roe, joined in Scalia’s view that “Roe should undoubtedly be overruled.”)
On the morning of June 29, the last day of the term and the day the decision was to be announced, Kennedy was at his melodramatic best. He had invited Terry Carter, a reporter for California Lawyer magazine, to join him in his chambers before the justices took the bench. Kennedy has a coveted suite overlooking the Court’s marble staircase and plaza, and he stood staring down at the demonstrators who had gathered, waiting for the judgment in Casey to be rendered. “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line,” Kennedy mused, and then he asked the reporter to leave. He needed to “brood” before Court convened.
In the end, there was no doubt about the real winner on the Court in Casey. In a little more than a decade, O’Connor had succeeded in recasting Roe v. Wade on her own terms. Moreover, she had triumphed with a position that was shared by virtually none of her colleagues over that time. The liberals—like Brennan, Marshall, Blackmun, and Stevens—had wanted to preserve the original rule of Roe. The conservatives—like Rehnquist, White, Scalia, and Thomas—had wanted to do away with Roe altogether. Even O’Connor’s allies in Casey, Kennedy and Souter, had embraced her position more out of expediency to build a majority than out of enthusiasm for her view. But the point remained: her view was the law.
In practical terms, O’Connor’s victory meant the “trimester framework” was out, but she did adopt Blackmun’s recognition that the key point in pregnancy was viability. “We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy,” the troika wrote. “The concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” Then, in the sentence that sealed O’Connor’s triumph, they wrote, “In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.” A stray observation from a separate opinion by O’Connor had become the law of the land on the most contentious constitutional issue of her time. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” In practical terms, the new rule meant that states could not prohibit early-term abortions, which were by far the most common. Not coincidentally, O’Connor’s solu
tion to the problem of abortion closely reflected public opinion on the issue.
The final section of the joint opinion, the one drafted by O’Connor alone, drew the least attention but offered the greatest clues about the future of the Court. The Pennsylvania law provided that “no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion.” In his opinion on the Third Circuit, Alito approved this provision, but O’Connor laid into it, sounding more like a women’s studies professor than a Goldwater Republican. She wrote that “common sense” suggested that “in well functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion…. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”
To O’Connor, in this case and henceforth, the crucial issue was women’s autonomy and health. She said that Alito’s view was “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.” It was O’Connor’s Court now, responsive above all to the legal philosophy and political savvy of the former state senator from Arizona.
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