The case came before the justices on April 25, 2000, the second-to-last day of oral arguments for the term that began the previous October. Pushing through a decision of this magnitude before the summer recess at the end of June would clearly be a formidable challenge, given the complexity and contentiousness of the issue. The courtroom was tense when Don Stenberg, the attorney general of Nebraska, stood to defend his state’s law, which had been declared unconstitutional by the Court of Appeals for the Eighth Circuit in Stenberg v. Carhart. “The issue here today is whether a state may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions,” he said.
Scalia always asked the most questions in oral argument, but the issue in Stenberg moved him to a level of hostile garrulousness unprecedented even in his career. He dominated the argument to an almost embarrassing degree. “General Stenberg,” he asked at one point, “I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb. Is that not what the legislature was concerned about?” (It was, said Stenberg.) To the lawyer for the Nebraska obstetrician who brought the case, Scalia offered this soliloquy: “Neither Roe nor Casey are written in the Constitution. They may not have mentioned all of the appropriate interests that may be taken into account. Why is it not an appropriate interest that the state is worried about rendering society callous to infanticide? There were very many highly civilized societies, including the ancient Greeks, who permitted infanticide, who said that the right of parents included the right not to be burdened with a child they didn’t want, especially a deformed child. And therefore, in order to prevent other societies descending into that degree of callousness, the numerous states have enacted these laws. I don’t think it’s so much a concern with medical matters. I think it’s a concern with the horror of seeing, you know, a live human creature outside the womb dismembered.”
Everyone in the courtroom was waiting for O’Connor to tip her hand. Finally, she broke her silence to say: “Mr. Stenberg, let me ask you a question. There is no exception under this statute, as I read it, for exceptions for the health of the woman, is that correct?” He answered, “That is correct, Your Honor, and it’s not necessary.”
That, of course, was a matter of opinion. The question illustrated O’Connor’s priorities when it came to abortion. She was all for limitations and restrictions, but not at the cost of women’s health. She didn’t care if laws were designed to talk women out of having abortions, but the choice ultimately had to belong to the women themselves.
The issue in Stenberg was not simple. The medical testimony about the kinds of procedures outlawed by the Nebraska law, and the effect of the bans on women’s health, was closely and inconclusively debated at the oral argument and in the briefs. The result of the conference on Friday, April 28, was similarly ambiguous. Four justices—Rehnquist, Scalia, Kennedy, and Thomas—wanted to uphold the law. Four others—Stevens, Souter, Ginsburg, and Breyer—wanted to strike it down as a violation of Roe and Casey. O’Connor said she would vote to strike the law down if it did in fact jeopardize women’s health.
The result left Stevens as the senior justice in a tenuous majority. The customary route in these circumstances would have been for Stevens to give the opinion to O’Connor, who was the shakiest member of the coalition. But Stevens gave it to Breyer instead. O’Connor was such a reluctant member of the majority that there was a possibility that she might find, as justices sometimes did, that an opinion “wouldn’t write”—that is, trying to explain the law’s unconstitutionality might push her to an opposite conclusion. Breyer and O’Connor had become close friends, and Breyer had the political skills to keep his senior colleague on board. Moreover, Breyer had the technical expertise to assemble the complex medical evidence in support of invalidating the law. So, with the days in the term slipping away, Breyer set out to save his majority in what would certainly be his most important opinion in six years on the Court.
“Steve,” a friend once told Breyer, “you think like an eagle, but you write like a turkey.” Yet his plodding, antirhetorical style served Breyer well in the Stenberg assignment. He determined to make almost no reference to Roe, Casey, and the right to privacy; of those two cases, Breyer wrote, “We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.” To do so, he focused on the question O’Connor asked in oral argument. He set out to show that the Nebraska law deprived women of the right to the best medical choices for their health. Or, as Breyer put it in his gnarled prose, “The State fails to demonstrate that banning [this kind of abortion] without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, [it] would be the safest procedure.”
Breyer had his law clerk on the case check almost daily with the O’Connor chambers about whether she was with him on the case. At any moment, she might pull out of the majority and write an opinion merely concurring in the judgment; that would make her opinion, not Breyer’s, the controlling authority on abortion law. For this reason, in his politically savvy way, Breyer persuaded Stevens and Ginsburg not to circulate their concurring opinions until he had O’Connor’s commitment to the majority; Breyer feared that their more liberal views might sour O’Connor on the whole issue. Breyer and O’Connor were both fundamentally more interested in reality than in theory; in complex cases like this one, they both deferred to experts, like the American Medical Association, which opposed the Nebraska law. Finally, just days before the end of the term, the O’Connor clerk on the case called his counterpart in the Breyer chambers and said, “I have something for you that you’re going to like.” Moments later, a memo from O’Connor to Breyer arrived, saying, “I join your opinion.”
Dissenting opinions are not assigned in the same formal way that majority opinions are, but the senior justice in the minority usually coordinates the opinions on his side. In Stenberg, Rehnquist deferred to Thomas for the main opinion on their side, giving him a rare opportunity to write in an important case, if only in dissent. Thomas’s clerk dueled with Breyer’s in pressing the Supreme Court library to track down obscure medical periodicals to bolster their positions. When Thomas was just about finished, Kennedy appeared without warning with a lengthy and passionate dissent of his own. Kennedy felt betrayed by O’Connor and Souter, his fellow members of the Casey troika. He thought that case had delineated the outer limits of abortion rights, but now the Court was, in Kennedy’s view, going much farther. He wrote that Nebraska “chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman’s autonomous right of choice as reaffirmed in Casey.”
Kennedy’s dissent set off an uncharacteristic round of pettiness at the Court. His analysis was so much more detailed and thoughtful than Thomas’s that Breyer, in responding, referred to Kennedy’s opinion as “the dissent.” Wait, Thomas objected, Rehnquist had assigned his opinion as “the dissent.” Which one was “the” dissent? Neither Kennedy nor Thomas would yield. Breyer didn’t know what to do. So the three justices—Kennedy, Thomas, and Breyer—visited Rehnquist to resolve the impasse. It was a measure of their respect for the chief that they all deferred to him on a matter like this one, and Rehnquist did come up with a Solomonic solution. Breyer would refer to the “Kennedy dissent” and the “Thomas dissent,” and neither one as “the” dissent. Meanwhile, Scalia wrote his own dissent, which surpassed even his own high standards for invective and hysteria. It began, “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its right
ful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.” (Korematsu authorized the military exclusion of Japanese American citizens from the West Coast during World War II; Dred Scott held that even freed blacks could not become American citizens.)
The extent of the conservative rout in the 1999–2000 term was so great that, in Stenberg, O’Connor departed from one of her cardinal principles of jurisprudence. Her position was not supported by public opinion. Indeed, there was nationwide support for bans on “partial birth” abortion. Thirty-one states had banned the practice, and the Nebraska law had passed the state legislature with just a single dissenting vote. In Stenberg, O’Connor’s reverence for expertise, her suspicion of paternalism, and the deft lobbying of Breyer moved her farther left than she had ever gone in her judicial career.
To be sure, the Court did not suddenly turn into a reincarnation of the liberal Warren Court. The justices had parried conservative legal offensives—on church-state, federalism, and abortion—rather than forging a liberal direction of their own. They had protected the status quo, which was what the country wanted, but that left the conservative movement seething. Even with seven Republican appointees on the Court, and eleven of the last thirteen appointments made by Republican presidents, the justices had not made the sharp turn to the right that conservatives had been seeking for a generation. As the decisions in that year showed, the Court would be sticking to its moderate course.
From the law students and professors in the Federalist Society to the evangelical warriors like Jay Sekulow and James Dobson, there was outrage and frustration. Conservatives still won an occasional case, but they didn’t control the Court on the issues that mattered most to them. They had used all their best arguments and come up short. There was only one way to change the Court—by putting their own man in the White House. Control of the presidency was the only route to control of the Court.
In the Court itself, as a new term began in October 2000, a near silence prevailed. Controversial cases seemed to have vanished from the pipeline. For the justices, the sleepy docket was a welcome respite after the dramas of the previous year. Greeting a new group of law clerks that fall, David Souter was smiling when he made a prediction: “This is going to be a very boring year.”
PART
TWO
11
TO THE BRINK
Random chance—a freakishly close vote in the single decisive state—gave the Supreme Court the chance to resolve the 2000 presidential election. The character of the justices themselves turned that opportunity into one of the lowest moments in the Court’s history. The struggle following the election of 2000 took thirty-six days, and the Court was directly involved for twenty-one of them. Yet over this brief period, the justices displayed all of their worst traits—among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court.
The justices never liked to think of themselves as political beings, but all of them except Stevens and Souter maintained a healthy interest in the political scene. It could hardly be otherwise. Winning an appointment to the Supreme Court takes plenty of savvy, and not even total job security can slake a lifelong passion for the business of winning and losing elections.
This was especially true of Sandra O’Connor. She still loved politics and, more to the point, the Republican Party. When Rehnquist ran his occasional betting pools on elections, O’Connor’s notes to the chief always referred to the Republicans as “we” and “us.” But by 2000, the Republican Party in O’Connor’s memory was not necessarily the same as the one in real life. Her personal political trajectory followed that of her first mentor in Arizona politics, Barry Goldwater, whose Senate campaign she worked on in 1958. Where Goldwater had once personified the extreme rightward edge of the Republican Party, he came in his later years to be a kind of libertarian, uncomfortable with the social agenda of the evangelical conservatives. Goldwater believed in small government and states’ rights, but he never signed on for expressions of public piety and regulation of private conduct. Neither, for the most part, did O’Connor. (And she always remembered Goldwater’s salty response to Jerry Falwell’s assertion that “good Christians” should be wary of O’Connor’s nomination. “I think every good Christian ought to kick Falwell’s ass,” the senator said.)
There was one contemporary politician whom O’Connor really admired—Governor George W. Bush of Texas. She was an old friend of his parents and a tennis partner of the former First Lady’s. O’Connor recognized the senior Bush’s limitations as a politician, but she thought that his son, the 2000 Republican presidential nominee, had the common touch and a slogan that might have been O’Connor’s own—“compassionate conservative.” As she tracked Bush’s rise to national prominence in the late nineties, O’Connor thought his centrist appeal would win over voters and protect the Republican Party from its extremists. The justice didn’t know George W. personally, but she found him very attractive, in every sense of the word.
Sandra and John O’Connor couldn’t attend political events, in light of her position, but they still spent a great deal of time out on the town in Washington. Perhaps the best-known story about O’Connor involved her attendance, in 1985, at a black-tie gala sponsored by the Washington Press Club. She was seated at the same table as John Riggins, the hard-living star running back of the Washington Redskins. After far too many drinks, Riggins told her, “Come on, Sandy baby, loosen up. You’re too tight.” Riggins then proceeded to fall asleep on the floor. Less well known was O’Connor’s reaction to the incident. A few weeks later, she showed up at her exercise class wearing a T-shirt that said, “Loosen up at the Supreme Court.” And several years later, when Riggins began a short-lived acting career, O’Connor came to his debut at a Washington area community theater with a dozen roses for him.
So it was very much in keeping with the O’Connors’ custom that they spent the night of the 2000 election at a party. The couple was especially close to Lee and Juliet Folger, prominent local philanthropists and modern counterparts to the venerable Washington aristocrats known as the “cave dwellers.” Mary Ann Stoessel, the widow of the prominent diplomat Walter Stoessel and the O’Connors’ host on election night, came from the same milieu. The refined setting of Stoessel’s party and the genteel crowd made the events of the evening all the more peculiar.
Everyone knew the election would be close. The polls showed the contest between Vice President Al Gore and Governor Bush coming down to a handful of states, especially Florida. On the night of Tuesday, November 7, Stoessel had placed televisions all over her house, so the seventy or so guests could follow the results as they moved from room to room. Justice O’Connor settled in the small basement den, where one of the televisions was located, and she saw Dan Rather call Michigan and Illinois for the vice president. Then, at 7:49, NBC called Florida for Gore; CBS agreed a minute later; ABC joined the consensus at 7:52.
Hearing Florida called for Gore, Justice O’Connor looked stricken. “This is terrible,” she said. “That means it’s over.” She then walked away in disgust. Later, after her statements at the party became public, O’Connor gave friends a rather implausible explanation for her behavior. She said she was angry not because Gore had apparently won the presidency but because the networks had called the election before voting was complete on the West Coast. But while the meaning of Sandra O’Connor’s words may have been debatable, the meaning of what John O’Connor had to say that night was not.
John and Sandra O’Connor were both seventy years old and in their forty-eighth year of marriage in 2000; it was hard to imagine a happier union. Through the years, John’s energy had matched Sandra’s, but his was coupled with a madcap sense of humor that never failed to delight his more straitlaced wife. As Justice O’Connor’s biographer Joan Biskupic learned when John was running for presid
ent of the Rotary Club in Phoenix, he listed his qualifications as: “Beautiful wife. Rich father-in-law. Pool hustler.” Shortly after Sandra was appointed to the Court, John gave Harry Blackmun a business card that said his skills included “Tigers Tamed, Bars Emptied, Orgies Organized.” John became a prominent lawyer in Phoenix but didn’t hesitate to give up his career to move to Washington after her appointment. Through the years, he spent time with a couple of different law firms in D.C. but never established himself the way he had in Arizona; the possibilities for conflict with his wife’s work were simply too great. But if John worried about living in Sandra’s shadow, he never let on.
In the period leading up to the 2000 election, John’s health deteriorated. He fainted on a visit to Phoenix, and his heart stopped briefly. He had surgery to install a pacemaker. In the past, John had always been extraordinarily discreet about anything to do with the Court. But on election night, John gave an extended explanation of Sandra’s distress. They wanted to retire to Phoenix, but Sandra wouldn’t hand her seat to a Democratic president. A Gore victory meant at least four more years for them in Washington, and they wanted to leave. That’s why, John said, Sandra was so upset. It was unlike him to talk about their plans in a quasi-public setting. In the end, of course, her mistake in uttering some unduly candid words was trivial; her blunders in the days ahead were not.
The vote count in Florida was fantastically, almost surrealistically, close. (In time, during their coverage on election night, the networks rescinded their projection of the state for Gore, then awarded it to Bush, and finally labeled the state too close to call.) On Wednesday, November 8, the first complete election figures in Florida showed Bush ahead of Gore by 2,909,135 to 2,907,351, or a margin of 1,784 votes. Under Florida law, a result this close required all the counties in the state to do an immediate automatic recount. That process, which essentially meant running all the ballots through the counting machines a second time, took a day. The new results, announced on Thursday, November 9, cut Bush’s margin to 327 votes—or .00000056 percent.
The Nine Page 17