by Peter Irons
Bork’s defeat: only stiffened President Reagan’s resolve to place the fifth vote against Roe on the Court. His advisers combed the federal appellate bench for potential justices and came up with two names: Anthony Kennedy of the Ninth Circuit in the West, and Douglas Ginsburg, who served for one year with Bork on the District of Columbia court after teaching antitrust law at Harvard. Ginsburg got the nod, largely because of his youth—he was just forty-one—and his rock-hard conservative views. Reagan announced his choice of Ginsburg on October 29, 1987. A week later, his nomination went up in smoke after former colleagues at Harvard—who opposed Ginsburg on political grounds—told reporters that the young professor had smoked marijuana at parties with students. The president could hardly say yes to Ginsburg while the First Lady conducted her “Just Say No” campaign against drug use.
Anthony Kennedy had much in common with Harry Blackmun. They were both the third choices for a seat whose new occupant was expected to be more conservative than his predecessor. Nixon and Reagan had both pledged to place a “strict constructionist” on the Court, and both looked to the federal appellate bench for candidates. And both presidents, twice foiled by the Senate in naming hard-line conservatives, had reluctantly turned to “moderates” whose judicial records would not trigger liberal opposition. Kennedy had all the right credentials. Born in Sacramento, California, in 1936, he graduated from Stanford and Harvard Law School, spent fourteen years in corporate practice in Sacramento, taught constitutional law at the University of the Pacific, and served for twelve years on the Ninth Circuit Court of Appeals. Kennedy also had an altar-boy reputation; he was a devout Catholic whose friends considered him totally square. Reagan’s far-right supporters harbored suspicions about Kennedy’s devotion to conservative dogma, but the president was convinced that he would vote “right” on Roe.
Leaders of the pro-choice lobby charged the Reagan administration with imposing a “litmus test” on all federal judicial appointments; the Republican platforms of 1980 and 1984 demanded that prospective judges affirm their opposition to abortion. Supreme Court nominees, who balked at explicitly promising senators they would vote to overturn the Roe decision, were expected to signal their willingness in code words like “judicial restraint.” Sandra O’Connor used just those words at her Senate confirmation hearing, but that phrase also expresses the principale of following precedent, as well as deferring to legislative judgments. The first case that put the Reagan, justices to the abortion test came in 1989, a busy year at the Supreme Court, which also handed down controversial decisions on flag-burning and affirmative action.
Confident they had five votes to overrule Roe abortion opponents urged the Reagan administration to intervene in a Missouri case that involved drastic restrictions on access to abortion. State legislators passed a law in 1986 with four major provisions: the first proclaimed that “the life of each human being begins at the moment of conception” in Missouri; the second barred abortions in public hospitals except to save a pregnant woman’s life; a third prohibited all state employees—including doctors—from “encouraging or counseling” women to have abortions; the last ordered all doctors—even those in private practice—to perform “viability tests” when they believed a woman had been pregnant twenty weeks or more. Several Missouri doctors and abortion providers sued the state’s attorney general, William Webster, and federal judges struck down most of the law’s provisions as violating Roe.
Arguing in Webster v. Reproductive Health Services as a “friend of the Court,” Solicitor General Charles Fried stated the Reagan administration’s position: “Today the United States asks this Court to reconsider and overrule its decision in Roe v. Wade.” Fried assured the justices that he was not asking them “to unravel the fabric of unenumerated and privacy rights” that the Court had woven since Griswold in 1965. His adversary at the podium, Frank Sussman of St. Louis, replied that “when I pull a thread, my sleeve falls off” He accused Fried of wanting to shear off “the full range of procreation rights and choices” the Court had protected from state lawmakers.
Supporters of abortion rights feared the worst: from the Court’s ruling in Webster. But the justices did not cut Roe to ribbons, because Justice O’Connor declined “the state’s invitation to reexamine the constitutional validity” of that decision. Chief Justice Rehnquist expressed “the judgement of the Court” in an opinion that upheld most of Missouri’s restrictions on abortions in public hospitals. But he spoke for only three other justices: White, Scalia, and Kennedy. Justice O’Connor preferred to trim legal threads rather than take her shears to Roe. She noted that the Court had upheld the Missouri law’s major provisions. “Precisely for this reason,” O’Connor wrote, she would exercise “judicial restraint” and defer any final judgment on Roe until the Court faced a direct challenge to its rulings. When such a case arrived, “there will be time enough to reexamine Roe,” she wrote. "And to do so carefully,” she chided the Court’s impatient tailors.
Justice Scalia responded to O’Connor’s implied rebuke with scorn. Her invocation of “judicial restraint” as a reason “to avoid reconsidering Roe cannot be taken seriously,” he wrote. Scalia’s direct rebuke of his colleague broke the Court’s unwritten rules of conduct and may have cost him the fifth vote in the final showdown over Roe. He certainly offended O’Connor, who never joined an opinion with Scalia in later abortion cases, even when they agreed on the outcome. Justice Harry Blackmun did not express relief that Roe had been spared by O’Connor’s adherence to judicial restraint. “I fear for the future,” he wrote in dissent. “I fear for the liberty and equality of the millions of women who have lived and come of age in the sixteen years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.” Blackmun also feared that the next Supreme Court justice would blow out the flickering candle of abortion rights. Among the four Webster dissenters, he and Thurgood Marshall were eighty years old, and William Brennan was eighty-three. John Stevens, at sixty-nine, was the youngest justice who firmly backed the Roe decision. “For today,” Blackmun wrote despairingly, “the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and chill wind blows.”
Two of the Reagan justices—Antonin Scalia and Anthony Kennedy—voted as expected in the Webster case, and Sandra O’Connor surprised many people by refusing to overturn Roe. But another decision in 1989 surprised even more people. The case of Texas v. Johnson involved a criminal conviction for burning the American flag during the 1984 Republican convention in Dallas. Gregory Johnson headed a column of about a hundred members of the Revolutionary Communist Youth Brigade who marched through downtown Dallas, chanting slogans and spray-painting the walls of corporate buildings. One marcher pulled an American flag from its pole outside a bank and handed it to Johnson, who led his ragtag band to City Hall. Closely watched by Dallas police, Johnson doused the flag with kerosene and flicked a cigarette lighter. While the flag burned, the protesters chanted, “America, the red, white, and blue, we spit on you.” No fights broke out, and the police did not intervene. One spectator Daniel Walker, gathered the burned remains and buried them in his backyard. Police later arrested Johnson under a Texas law that punished anyone who “desecrates” a flag with knowledge the act will “seriously offend” an observer. Walker told a jury he was offended by the flag burning, and Johnson received a one-year jail term for putting a torch to Old Glory.
A panel of state judges reversed the conviction, holding that Johnson’s act “was clearly ‘speech’ contemplated by the First Amendment.” The Supreme Court accepted the state’s appeal for review, and most observers expected the justices to uphold the Texas law. Many were surprised when Justices Scalia desecration law. As the senior majority justice, Brennan assigned the Court’s opinion to himself. A quarter century after his momentous New York Times v. Sullivan opinion, he reaffirmed the constitutional primacy of the First: A
mendment. Because “fundamental rights” of free expression were at stake, Brennan applied the “strict scrutiny” test; only laws that reflect “compelling state interests” can clear this judicial hurdle. The state’s lawyers conceded that flag burning was symbolic speech, but they asserted two compelling interests: preventing breaches of the peace and protecting the flag as a symbol of national unity. Brennan quickly disposed of the first claim. Texas had not charged Johnson with breaching the peace, and states may not “ban the expression of certain disagreeable ideas on the unsupported assumption that their very disagreeableness will provoke violence.”
Brennan addressed the “national unity” claim with agreement that the flag holds a “special place” in public sentiments, but he argued that Gregory Johnson’s act “will not endanger the special role played by our flag or the feelings it inspires.” Paraphrasing the Abrams dissent of Justice Holmes seventy years earlier, Brennan wrote that “nobody can suppose that this one gesture of an unknown man will change our Nation’s attitude toward its flag.” He summarized his Bill of Rights philosophy in one sentence: “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”
Brennan had no need to charm or cajole Scalia into the majority. In First Amendment cases, Scalia refuses to allow lawmakers to display any “content preference” for one opinion over another. At oral argument in the Johnson case, Scalia claimed that the flag could be flown “only in one direction” in Texas. “You can honor it all you like,” he said of the state’s argument, “but you can’t dishonor it as a sign of disrespect for the country.” Even with Scalia on his side, Brennan needed another vote to compensate for the defection of Justice Stevens from the liberal bloc; he found it in Justice Kennedy, the Court’s newest member. In a brief concurrence, Kennedy stated that he was heeding the “pure command” of the First Amendment. But he confessed the personal toll the flag burning case extracted from him. “The hard fact is that sometimes we must make decisions we do not like,” Kennedy wrote. “We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”
Chief Justice Rehnquist viewed the Court’s ruling as totally wrong. He reportedly glared at Brennan when the senior justice, sitting at his right hand, read portions of his majority opinion from the bench. Rehnquist accused Brennan of giving a “patronizing civics lecture” to the Court. But the Chief Justice delivered his own civics lecture, devoting six pages of his dissent to quotations from patriotic literature and poems, spanning American wars from the Revolution to Vietnam. He quoted Emerson’s tribute to the “embattled farmers” who stood at the Concord bridge, “their flag to April’s breeze unfurled.” Rehnquist sang the first verse of “The Star-Spangled Banner” and recalled the sacrifice of the Marines who died on Iwo Jima, fighting “hand to hand against, thousands of Japanese” while their flag was planted at the summit of Mount Suribachi. He argued that the “unique position” of the flag in American history “justifies a governmental prohibition against flag burning” to protect the nation’s symbol. “Surely one of the high purposes of a democratic society,” he wrote, “is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people—whether it be murder, embezzlement, pollution, or flag burning.” In Rehnquist’s mind, Gregory Johnson had murdered the American flag and deserved a prison term for his “evil” act.
Not since the school prayer cases of the early 1960s had the Supreme Court ignited such a firestorm of public outrage. Newspapers printed thousands of heated letters, and hundreds were reprinted in the Congressional Record. President George Bush, whose 1988 campaign featured the flag, proposed a constitutional amendment to overturn the Court’s ruling. The House of Representatives passed a resolution condemning the decision without one dissenting vote. In the Senate, leaders of both parties sponsored a similar resolution. “The Court’s decision is wrong and should be corrected,” said George Mitchell, the Democratic majority leader. Minority leader Robert Dole added that “there has been a lot of talk lately about how the Supreme Court has tilted right. Well, yesterday, the Court did not tilt right. It tilted wrong—dead wrong.” Only three senators voted no on the bipartisan resolution, and Dole introduced a constitutional amendment to reverse the Court’s decision.
The campaign to amend the First Amendment cooled off after the speeches ended and second thoughts began. Nebraska senator Bob Kerrey, who lost a leg in Vietnam and won a Medal of Honor, dampened the rhetorical flames with a dramatic speech against a constitutional amendment. “At first I was outraged by the Supreme Court’s opinion,” he said. Later, during the Senate’s Fourth of July recess, he read the opinions. “I was surprised to discover that I found the majority argument to be reasonable, understandable and consistent with those values that I believe make America so wonderful.” Kerrey responded to the “disappointing dissent” of Chief Justice Rehnquist with his own civics lecture. Recalling “the smell of my own burning flesh” on the battleground, he said that “I don’t remember giving the safety of our flag anywhere near the thought that I gave the safety of my men.”
When debate ended, Senator Dole’s proposed amendment fell sixteen votes short of the two-thirds majority it needed for passage. Congress did, however, pass a Flag Protection Act that made it a federal crime to “knowingly mutilate, deface, physically defile, burn, maintain on the floor, or trample upon any flag of the United States.” Gregory Johnson promptly burned another flag, this time on the Capitol steps, but a group of Seattle radicals won the race to the United States v. Eichman, striking down the federal law. By this time, even Chief Justice Rehnquist seemed tired of the issue. “Surely there are not many people who burn flags in this country,” he told a lawyers’ group after the decision. Now that “it has finally been established it is legal, there will be far fewer.” He was right; protestors against the Gulf War in 1991 did not burn flags but waved them under the banner “Support our Troops—Bring Them Home Alive.” Forms of protest change, but the First Amendment endures the flames of controversy.
The Reagan justices were divided in the 1989 abortion and flag-burning decisions, but they stuck together in the most significant affirmative action case since the Bakke ruling in 1978. The issue in City of Richmond v. J. A. Croson Co. was a “minority set-aside” program designed to redress the historic imbalance in public funding of construction projects in Virginia’s capital. During the Sixties and Severities, many of Richmond’s white residents fled to the suburbs to escape integration of the city’s schools. By the early Eighties, blacks made up more than half of Richmond’s population and controlled five of nine seats on the city council. In 1983, the council adopted a “Minority Utilization Plan” requiring contractors on public jobs to award at least 30 percent of their subcontracting dollars to “minority business enterprises,” defined as those with at least 51 percent black, Spanish-speaking, Asian, Native American, Eskimo, or Aleut ownership.
Testimony before the council on the set-aside plan showed that between 1978 and 1983, fewer than 1 percent of the city’s construction dollars went to minority-owned firms. However, the council received no evidence of past discrimination against any specific firm, which was not surprising. Blacks had been effectively shut out of the construction industry in Richmond—and most cities across the country—by lack of business training and start-up funding. Even with help from federal small-business programs, there were very few black-owned firms to discriminate against in Richmond. The council’s set-aside plan, however, allowed contractors to meet their 30 percent quota with firms outside the city.
The J. A. Croson Company won a contract to install new plumbing fixtures at Richmond’s city jail, but its purchasing agents could not find a minority-owned business to provide sinks and urinals anywhere between Richmond and the Aleutian Islands in Alaska. Croson
requested a waiver from the set-aside requirements, but city officials refused. The company finally located a minority- owned firm, but its bid exceeded Croson’s estimate by several thousand dollars; the city refused to raise the contract price and reopened bidding on the job. The company’s lawyers filed suit in federal court, arguing that the city’s program violated the Fourteenth Amendment’s Equal Protection Clause. They relied for support on the Supreme Court’s 1986 decision in Wygant v. Jackson Board of Education, a case that involved the layoffs of white teachers with more seniority than blacks in order to maintain racial balance in teaching staffs. The Court in Wygant had required evidence of past discrimination by government officials to support race-based remedial programs. Croson’s lawyers argued that Richmond had not shown any such evidence. On their side, the city’s lawyers cited the Court’s 1980 ruling in Fullilove v. Klutznick, upholding a federal program that set aside 10 percent of public works contracts for minority-owned firms; Congress had found a past history of discrimination in the construction industry, but not against specific firms. Significantly, the Court spoke in both Wygant and Fullilove through plurality opinions, leaving the question of affirmative action in search of a majority.
