Even Justice Kennedy moved more toward the liberal bloc, supporting limits on partisan redistricting, protecting the government’s right of eminent domain, and reining in the death penalty. He won the task of writing the opinion striking the last of the laws making sodomy criminal; Kennedy’s obviously heartfelt paean to the respect owed to gay men and lesbian women is rightly seen as a high point in his time on the bench.
JUSTICE KENNEDY’S MADONNAS AND WHORES
But Kennedy never again weighed in on the side of women.
A couple of the women’s rights cases involved fine-tuning the now sturdy structure of equality in public institutions and in the workplace that was topped off with the decision in U.S. v. Virginia, the VMI case. But most of the disputes still circled back to the perennially unsettled issue: their role in producing and bringing up baby. When it came to women, Justice Kennedy seemed almost to be doing penance for having saved Roe v. Wade.
The most glaring example of Justice Kennedy’s abandonment of the cause of women’s equality had to be his concurring opinion in 2001 in Ferguson v. Charleston, a suit by ten black pregnant women against the hospital run by the Medical University of South Carolina. The trouble at the hospital started when Shirley Brown, a white nurse at the overwhelmingly black public facility in Charleston, heard on the radio that the local police were arresting pregnant drug users for child abuse. Nurse Brown decided that any of her patients taking drugs while pregnant should be prosecuted as criminals. After all, under South Carolina law, viable fetuses were persons. She and the hospital lawyer got in touch with the city lawyer to set up a program to identify pregnant offenders. If the hospital suspected a pregnant women of using cocaine, the hospital would test the urine samples they took from her for medical purposes and, if they tested positive, turn the patient in to the police. According to the Court papers, scenes of harrowing abuse ensued. Pregnant women went to jail to await childbirth. Women were arrested within days and sometimes even hours of giving birth, handcuffed, shackled, torn from their babies, and taken off to jail. (Later the new mothers were given “amnesty” if they agreed to go into drug treatment.)
Lawyers for the Center for Reproductive Law and Policy in New York sued, arguing that the involuntary use of patients’ medical urine samples for drug arrests was unconstitutional search and seizure. The somewhat startling record at trial included testimony that Nurse Brown had been heard suggesting that black women should have their tubes tied and that birth control should be put in the water in black communities. Center lawyers also sued the hospital for race discrimination. A local jury found for the hospital, and the court of appeals affirmed.
The hospital contended that the program fell under an exception to constitutional protections against unlawful search, called “special needs.” The catch was that, under the Court’s prior precedents, a special need had to be special, serving some interest other than the social well-being that undergirds any provision of criminal law. In this case, the special reason justifying the search was the physical well-being of the mother and the fetus. Since all antidrug law enforcement was driven by the harm to the drug-taking adult, the fetus was the only novel factor in the case. Indeed, the hospital itself admitted that it had been motivated in part by the unprecedented media attention to a so-called epidemic of “crack babies.” Justice Stevens assigned the case to himself and wrote an opinion treating the issue as a straightforward search-and-seizure matter with no distinction between the mother and the fetus. The public hospital, he ruled, did not have a special-enough need to take urine samples as if for routine health care and then, without a warrant or the patient’s consent, hand it over to the police for prosecution.
Justice Kennedy filed a concurring opinion, formally casting his vote to stop Nurse Brown and her minions from this action. Technically this was a vote for the female plaintiffs. But rather than just stopping there, he spent most of his opinion on the special status of the fetus and how the government was justified in using criminal law to compel women to take care of their “unborn.” “The beginning point,” Justice Kennedy writes, “ought to be to acknowledge the legitimacy of the State’s interest in fetal life… . There should be no doubt that South Carolina can impose punishment upon an expectant mother who has so little regard for her own unborn that she risks causing him or her lifelong damage and suffering.” Although the hospital cannot collect urine from a patient under the guise of health, once the urine is in the jar, he suggests, the police should get a warrant to collect the evidence from the hospital. And then punish the women who have transgressed.
The entire essay is completely unnecessary to the decision on a search-and-seizure point. But Justice Kennedy always seemed to perceive women as saints or whores. Seeing that devilish dichotomy appear again at the hands of one of the key votes on the Supreme Court had to scare the dickens out of his female colleagues.
Kennedy got another chance to reward the blessed mothers when the discriminatory immigration law issue surfaced again, this time in a procedurally clean case. Justice Ginsburg calls the cases of American men fathering children with Asian women the “Madame Butterfly” cases, reflecting both her rhetorical gift and love of opera. In the second case, Nguyen v. INS, Nguyen’s father, like Lt. Pinkerton in that saddest of operas, brought his young son home from Vietnam and raised him in America. When Nguyen got in trouble with the law years later, it emerged that his father had failed to do the paperwork to claim him in time, and the United States proposed to deport the young man, who had lived in America since he was six. If Nguyen had been fathered by a Vietnamese tea planter and born to a philandering American woman in Vietnam, he would have been an American citizen automatically. Nguyen was a clear case of sex discrimination, but Justice Kennedy was having no part of sexual equality. With the rare and unlikely fifth vote of Justice Stevens, he wrote the opinion denying fathers the automatic transmittal of citizenship that American women abroad exercised at childbirth.
The immigration law may grant citizenship at birth to the foreign-born, out-of-wedlock children of American women, but not of American men, Kennedy wrote. “There is nothing irrational or improper in the recognition that at the moment of birth—a critical event in the statutory scheme and in the whole tradition of citizenship law—the mother’s knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype.”
The discrimination against the out-of-wedlock offspring of American men abroad may seem trivial against the Court’s now long and impressive record of establishing women’s equality. Thanks in large part to Ginsburg’s work as a lawyer, the Court had opened up the possibilities for acceptable female behavior in the years since Sally Reed sued to administer her son’s estate in 1971.
And that accomplishment is just where Justice Kennedy’s blow fell in Nguyen. His opinion for the majority, stereotyping women as natural parents, strikes at the core of the house Ginsburg had built. The devilish thing about stereotyping is that it often rests on how the majority of people act. Unlike Stephen Wiesenfeld, most men do not need Social Security to raise their motherless children. Even when they were allowed, female college applicants didn’t flood into the Virginia Military Institute. The old norms persist. Many—even most—people behave in the ways their history and culture hands down. Ginsburg’s project from the beginning was to remove that formal legal support for the old behaviors as a means to make room for new ways of acting. The law should not enshrine social distinctions that seemed like common sense to people like Anthony Kennedy.
With Stevens unexpectedly in the conservative bloc, O’Connor was the most senior justice in dissent. She assigned to herself the task of answering Kennedy. “[T]he majority,” she explained, moving directly to the heart of the backlash in Kennedy’s opinion, “articulates a misshapen notion of ‘stereotype’ and its significance in our equal protection jurisprudence. The majority asserts that a ‘stereotype’ is ‘defined as a frame of mind resul
ting from irrational or uncritical analysis.’ This Court has long recognized, however, that an impermissible stereotype may enjoy empirical support and thus be in a sense ‘rational.’”
Under the guidance of the equal-protection clause, O’Connor set out, we as a society have agreed to ignore the evidence, because of the harm such sweeping assumptions do to the people trying to live differently. She reminded her brethren that since Reed v. Reed, they had repeatedly ruled to this effect. In a Girlz Rule string of citations, she reiterated to the Court: “We have made abundantly clear in past cases that gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization.” Her authorities ranged from her own dissent in the jury case and Ginsburg’s most potent victories—Craig v. Boren, the teenage boys, beer, and driving case, and Stephen Wiesenfeld’s distinctly untypical claim for child support.
And the majority can’t just hide the stereotype by asserting it’s not a stereotype if it’s not nasty. It’s not that you’re hurting my feelings, she added. She didn’t care if Kennedy thought of mothers as the Blessed Mother. It’s still a stereotype. And it’s still harmful. It was a great dissent. But it was still a dissent. The prospects for women’s equality dimmed.
The downside of Justice Kennedy’s worshipful assignment of the maternal role to women became apparent almost immediately in the next sex case. In Nevada v. Hibbs, a male caregiver, William Hibbs, sued his employer, the state of Nevada, for money damages for denying him leave provided by the federal family-leave law. In the American constitutional system, suits against the states are not favored. Nonetheless, with Stevens back in the liberal camp and even Justice Rehnquist on the side of family leave, six justices voted that Hibbs could sue Nevada for damages for violating the federal law. Rehnquist assigned the opinion to himself. Remedying discrimination between the sexes and making leave available for everyone is an important-enough justification for allowing employees to sue their employers for damages in federal court, Rehnquist concluded, even when the employer happened to be a sovereign state like Nevada.
For all his earlier prose about family values, Justice Kennedy dissented. The talk about sex-role stereotypes and the history of discrimination against women in the workplace was unpersuasive to him. “All would agree that women historically have been subjected to conditions in which their employment opportunities are more limited than those available to men. As the Court acknowledges, however, Congress responded to this problem by allowing people to sue their states for money if the states violated the Civil Rights Act of 1964,” he concluded with satisfaction. Now they’re making a fuss about family leave being offered on a sex-neutral basis so they won’t be stigmatized as caregivers. What next?
Whatever it was, they weren’t going to get it from Anthony Kennedy.
THE LAST CASE
Justice O’Connor thwarted Justice Kennedy in one last sex case before she left. She provided the critical fifth vote—and wrote the opinion—in Jackson v. Birmingham Board of Education, a surprisingly close decision for a relatively unremarkable case. Federal law, called Title IX, had long prohibited sex discrimination in schools that got federal funds. When a longtime physical education teacher, Roderick Jackson, got assigned to a new school and discovered his girls’ basketball team was getting the short end of the court, he complained. His evaluations suddenly went south, and he was eventually fired.
Earlier cases had established that students could sue to enforce the prohibition against sex discrimination in schools. Jackson v. Birmingham merely confirmed that Title IX, prohibiting sex discrimination, also prohibited retaliating against a whistle-blower who complained about sex discrimination. Justice Kennedy joined in Justice Thomas’s dissenting opinion for the four conservatives, arguing that discrimination against someone for complaining about sex discrimination wasn’t sex discrimination. O’Connor made relatively short work of the argument. “[R]etaliation is discrimination ‘on the basis of sex,’” she ruled, “because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.”
O’Connor had her finger in the dike. Kennedy’s entire track record, after Casey, unambiguously showed that there would be little hope for women if O’Connor left. The only question left was how boldly Anthony Kennedy was going to move to reverse what the sisters in law had achieved.
YOU THINK, “OH, DEAR.”
The Supreme Court reporter Jeffrey Toobin always listened at oral argument for Justice O’Connor to interject one of her ladylike exclamations: Oh, dear! Well, goodness! Then you knew, he had figured out, that she was really serious about what she was saying and how she might rule. In a symposium at William and Mary Law School in 2010, five years after she stepped down, she admitted that she was disappointed in the Court’s decisions undoing some of her rulings. “If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear.’” Applying Toobin’s rule, this is as close as the self-described cowgirl gets to admitting she’s very upset. “But,” she continued in her usual suck-it-up-and-change-the-tire fashion, “life goes on. It’s not always positive.”
The fate of her legacy as the FWOTSC was clear long before she left. George W. Bush was running a movement conservative White House, and Anthony Kennedy didn’t like women’s rights. But she was, as she saw it, trapped. Her husband John, diagnosed with Alzheimer’s disease fifteen years earlier, while still young, was deteriorating rapidly. Sometime before the 2002 term he had gone to work at the law firm in D.C. where he was still titularly employed and got lost coming home. By 2003, the justice had stopped having her famous Saturday morning chili fests with her clerks; she could not leave her husband alone. She began bringing him to chambers with her and watching him constantly when the two of them went out.
According to the Supreme Court reporter Jan Crawford Greenburg, it was actually Chief Justice William Rehnquist who drove O’Connor to retire when she did. In June 2005, she met with him for a frank conversation about the future of the institution they both loved. He had thyroid cancer; nine months earlier the doctors had given him a year, and she thought he would tell her he was about to step down. Not wanting to burden the Court with two vacancies at once, she planned to stay another year and then go back to Phoenix with John. Instead, Rehnquist surprised her with the news that he would stay on for another year. If she didn’t leave now, she would have to wait two years to allow him to retire first or cause the dreaded dual vacancies. Just like that, O’Connor agreed she’d be the one to go.
O’Connor wrote her letter of resignation, timed for delivery the same day the mail versions would reach her sons out west. “I’ll retire as soon as my replacement is confirmed,” she wrote to President Bush. “You make your decision and you live with it,” she told Greenburg. Hours after the letters arrived, she got on a plane for Phoenix.
That abrupt decision cost her a year on the Court and possibly altered the course of history. In July 2005, President Bush nominated John Roberts, a shoo-in, to replace Justice O’Connor. Wonderful choice, she pronounced to the press. “Except,” she added, “he’s not a woman.” Knowing full well what it was like to be the only woman, she did not embrace the prospect of leaving Justice Ginsburg home alone.
By the time Roberts began his confirmation hearings, however, he was not succeeding the first female justice. On September 4, in the middle of the process of replacing Justice O’Connor, Chief Justice Rehnquist died. Bush promoted Roberts to be the candidate for the next chief, necessitating another pick for O’Connor’s seat. Less than a month later, Roberts was confirmed. Had O’Connor simply waited a couple of months before sending her letter, she could have had another term to decide what to do. Instead, she was out, and eventually was replaced by Judge Samuel Alito of the Third Circuit.
Alito’s conservative politics and jurisprudence were public information. He was the only Third Circuit judge on the abortion case panel who thought w
omen should have to tell their husbands about their plans to abort. But Supreme Court confirmation hearings are, in the modern era, mostly political theater. Soft-spoken “Sam” Alito, with the humble life story and emotional wife who cried in the hearing room when she thought he was getting a raw deal, came across as Jimmy Stewart. He was confirmed 58 to 42. In January 2006, Sandra Day O’Connor stepped away from the closing doors.
LEFT BEHIND
By the time the 2003 federal “partial birth abortion” law reached the Supreme Court in 2007 in Gonzales v. Carhart, it no longer mattered what retired Justice Sandra Day O’Connor thought was burdensome. Although the law was drafted to avoid impinging on procedures used before viability, it contained no exception for protecting women’s health and was otherwise indistinguishable from the Nebraska law the Court had struck down in 2000. But Sandra Day O’Connor had been replaced by Samuel Alito, and the four conservatives became a majority of five. The “partial birth abortion” law would now stand.
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