by Peter Irons
All four Reagan justices voted against Richmond’s set-aside program. Sandra O’Connor spoke for the Croson majority, which included Byron White and John Paul Stevens. Her opinion borrowed Earl Warren’s language in Brown v. Board of Education to undermine the goals of affirmative action. “Classifications based on race carry a danger of stigmatic harm,” she wrote. “Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.” The notions of racial inferiority that Warren deplored in Brown were those implanted in black children by their exclusion from white schools. O’Connor presumably assumed in Croson that black contractors would feel inferior because of their inclusion among members of their industry. This inverted reasoning left blacks in a no-win situation; keeping them out and putting them in both produced notions of racial inferiority.
Determined to promote the notion of a “color-blind” Constitution, Justice O’Connor shielded her eyes from historical reality. The dearth of black contractors in Richmond “is not probative of any discrimination in the local construction industry,” she claimed. The “numerous explanations” for this obvious fact included “past societal discrimination in education and economic opportunities” for blacks. O’Connor’s statement that “Blacks may be disproportionately attracted to industries other than construction” added to the unreality of her opinion. Given the “past societal discrimination” against blacks in almost every industry, it was hardly surprising they were not “attracted” to construction, long dominated by lily-white trade groups and unions. O’Connor did not list any industries to which blacks were “attracted” is owners, most likely because they own few businesses that do not primarily serve the black community. Not one of Richmond’s largest construction firms had ever been owned by blacks. How, then, could the city council provide evidence of discrimination against black owned firms that did not exist? This fact did not stop O’Connor from warning that allowing “past societal discrimination” to justify “rigid racial preferences” would “open the door to competing claims for ‘remedial relief’ for every disadvantaged group.” But every group except whites was disadvantaged in Richmond. O’Connor chose Wygant as precedent for its reliance on evidence of “identified discrimination” against black teachers; she dismissed the evidence of nationwide construction-industry discrimination the Court had cited in Fullilove because it did not prove the existence of discrimination in Richmond.
Justice Thurgood Marshall, the Court’s only black member, decried O’Connor’s Croson opinion as a “cynical” effort to deny Richmond’s “disgraceful history of public and private racial discrimination.” Writing for Justices William Brennan and Harry Blackmun in dissent, Marshall accused O’Connor of ignoring both the city’s ample “proof” of discrimination against blacks in construction and the “exhaustive” studies the Court had relied on in Fulliove. He called the Croson decision “a deliberate and giant step backward in this Court’s affirmative action jurisprudence.” Back in 1944, Justice Frank Murphy had dissented from the Court’s “legalization of racism” in the Korematsu case, which upheld the wartime internment of Japanese Americans. Justice Marshall stopped just short of sticking the “racist” label on the Croson decision in 1989, but his dissent exposed the depth of his anger at the “armchair cynicism” of the Court’s majority. The majority simply would not look at the evidence of “official racism” that pervaded Richmond and persisted long after slavery ended. Marshall spent more than sixty years fighting to end the racism that pervaded American society; he now despaired of stemming the Court’s “full-scale retreat” from his cherished goal of racial equality.
On July 20, 1990, a steamy Friday in Washington, Justice William Brennan sat alone in his chambers and composed a brief letter to President George Bush. “The strenuous demand of court work and its related duties required or expected of a justice,” he wrote, “appear at this time to be incompatible with my advancing age and medical condition. I therefore retire immediately as an associate justice of the Supreme Court of the United State.” A gallbladder operation had weakened him, and a recent stroke had produced episodes of confusion. After thirty-four years on the Court, Brennan knew he could no longer function at full capacity. Fifteen years earlier, he had witnessed the agonizing slide into senility of his liberal ally William Douglas. Brennan was determined to leave the bench with the dignity that he consistently urged his colleagues to give every American.
Accolades poured in from Brennan’s vast network of friends and former clerks, who now taught at virtually every top-notch law school. Professor Owens Fiss of Yale, who clerked for Brennan during the Warren Court era, wrote of this period that “it was Brennan who by and large formulated the principle, analyzed the precedents, and chose the words that transformed the ideal into law.” perhaps the most telling tributes came from Brennan’s ideological adversaries, who uniformly spoke of his personal warmth and political acumen. Chief justice Rehnquist, who rarely voted with Brennan in Bill of Rights cases, ing enabled him on numerous occasions to put together majorities espousing the side of individual rights in which he believed so deeply.” Two former Reagan advisers wrote that “what Brennan has done has been to package and market his beliefs more attractively than have some of his ideological brethren.” This was high praise indeed from officials of an administration that mastered the skills of packaging and marketing conservative policies. Perhaps the warmest tribute came from a former law clerk, Richard Posner, now a notably conservative federal judge. Justice Brennan’s lasting influence, Posner wrote, stemmed less from his “commitment to a doctrine” than from “the emanation of a warm, generous, and good-hearted person.”
In a real sense, Brennan’s retirement marked the end of the Warren Court era, with its landmark decisions largely intact after thirty years of conservative leadership under Warren Burger and William Rehnquist. Brennan’s vision of “human dignity” as the Constitution’s animating principle remains alive, nurtured after his death in 1997 by a legion of admiring lawyers and judges. justice Brennan also affected the lives of many ordinary Americans like Jacinta Moreno, John Kelly, Webster Bivens, Adell Sherbert, Steven Pico, Sharron Frontiero, and Leon Goldfarb. These arc all people whose names appear in the captions of opinions Brennan wrote for the Court. Their cases raised issues of welfare rights, police brutality, religious practice, library censorship, sex discrimination, and social security benefits. In each case, justice Brennan put together judicial majorities to give these Americans—and millions like them—the “dignity” they deserved from our Constitution.
There days after he received Brennan’s letter, President Bush announced his nomination of David Souter to replace the liberal icon. He picked an obscure federal appellate judge with only seven months’ experience on the First Circuit bench in Boston. But Souter—like Brennan—had served for years on state courts, as a trial judge and supreme court justice in New Hampshire. Born in 1939, he attended Harvard Law School and spent a year in England as a Rhodes scholar. A bachelor who lived with his mother, Souter came to Washington with a country-bumpkin image, but he possessed a sharp legal mind. Because his political sponsers included fervent abortion opponents, liberals feared that Bush had nominated another Bork, without his scowl but equally determined to overturn Roe. During his Senate hearings, Souter resisted all efforts to pin him down on abortion, but he asserted his belief that the Constitution protected a “right to privacy” in matters of personal autonomy. Both sides in the abortion debate waited anxiously to see how Souter would vote when the time came to “carefully” reexamine Roe, as Justice O’Connor had promised in her Webster concurrence.
Brennan’s departure left Thurgood Marshall feeling lonely on the bench, as the Court swung to the right under Rehnquist. Marshall had a big heart, but it labored to pump blood through his big body, and his lungs wheezed from years of smoking. After years of vowing that he would only leave the bench “feet first,�
�� he finally gave up on June 27, 1991, the last day of the Court’s term. He sat grimly beside Rehnquist as the Chief Justice read an opinion upholding a death penalty imposed on a black man convicted of killing a white woman and her two-year-old daughter in Tennessee. Marshall and Brennan had consistently opposed capital punishment, and Rehnquist’s eagerness to speed up executions offended Marshall’s sense of fairness; the only justice who ever defended an accused murderer knew that blacks were far more likely than whites to die for the same crimes. In a scathing dissent to Rehnquist’s opinion in Payne v. Tennessee, which overruled decisions just two and four years old, Marshall indicted the new majority for its disregard of precedent. “Power, not reason, is the new currency of this Court’s decisions;” he wrote. The Constitution had not changed in four years, “only the personnel of this Court did.” In sending earlier decisions “to their graves,” Marshall warned, “today’s majority ominously suggests that an even more extensive upheaval of this Court’s precedents may be in store. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration.”
Marshall was unwilling to be a pallbearer as the new majority buried his offspring. When the justices returned to their conference room, he informed his colleagues that he was retiring. “I’m old and I’m coming apart,” he told reporters the next day. But Marshall flashed his old spirit when a reporter asked whether President Bush should feel obligated to replace him with another black justice. “My dad told me way back,” he replied, “that there’s no difference between a white snake and a black snake. They’ll both bite.” Marshall did not name any black snakes, but he had one in mind. Four years earlier, Clarence Thomas—who then headed the federal Equal Employment Opportunity Commission—had criticized the speech in which Marshall noted the Constitution’s acceptance of slavery. Thomas had assured a conservative audience that, unlike Marshall, he was ”wild about the Constitution.”
Four days alter Thurgood Marshall announced his retirement, Clarence Thomas stood next to President Bush and heard himself lauded as “the best qualified” person to replace the first black justice. Thomas was then forty-three and had served for just over one year on the District of Columbia Court of Appeals. Born into poverty in Pin Point, Georgia, Thomas was raised by his grandfather after both. parents abandoned him. Myers Anderson imposed rigid discipline on young Clarence, who still bears a scar from a whipping. His grandfather sent Thomas to Catholic schools, and he remained in them through elementary and high school, one year of seminary, and college at Holy Cross in Massachusetts. He won a scholarship to Yale Law School and graduated in 1974. The Supreme Court decided the Roe case during his second year at Yale, but Thomas later claimed he never discussed the Court’s most controversial decision with classmates
Thomas wound up in Washington in 1979, after five years off law practice in Missouri, first in the attorney general’s office and then with the Monsanto chemical firm. He started as an aide to Republican senator John Danforth, his former Missouri boss, and moved into the Reagan administration in 1981, when he first told friends that Thurgood Marshal “wouldn’t last forever” on the Supreme Court and that no one else “was in as good a position” to take his seat than Thomas, as the highest-ranking black lawyer in government. Thomas waited ten years for the nomination he felt was his reward for ducking liberal potshots as an outspoken black conservative.
During his confirmation hearings, Thomas dodged all questions on abortion. He displayed such a poor grasp of constitutional law that even a White House adviser who coached Thomas for the sessions called his performance “terrible.” Erwin Griswold, the esteemed former Harvard Law School dean and solicitor general, bluntly told the senators that Thomas had “not yet demonstrated any clear intellectual or professional distinctions.” But his confirmation seemed assured until Anita Hill, a University of Oklahoma law professor and former Thomas aide, charged that her former boss had propositioned her and made crude sexual remarks. Millions of Americans watched on television as Hill recalled Thomas asking if she had put a public hair on his Coke can, and describing the penis of “Long Dong Silver,” a pornographic film star. Thomas later swore that he never made these remarks, although former law school classmates told reporters that he often showed them pornographic magazines. But Thomas won this “he-said-she-said” battle when the Senate narrowly confirmed him by a vote of fifty-two to forty-eight. Thomas once complained that civil rights leaders did little more than “bitch, bitch, moan, moan, and whine.” He bitched during his confirmation hearings that he was the victim of a “high-tech lynching” by liberals. Thurgood Marshall, who had visited the sites of real lynchings as a civil rights lawyer, did not say a public word about his successor before he died in January 1993.
Clarence Thomas took his oath to “support and defend” the Constitution on October 23, 1991. Two weeks later, the case that gave the justices their chance to “carefully” reexamine Roe landed on the Court’s docket. Hardly anyone doubted that Chief Justice Rehnquist now had at least five votes to overturn Roe and turn the abortion debate over to state lawmakers. “All lingering doubt has been erased,” the Wall Street Journal assured its readers. “Conservatives have locked up control of the U.S. Supreme Court.”
Even the most fervent pro-choice leaders expected to lose in Planned Parenthood v. Casey, which challenged restrictions that Pennsylvania lawmakers had placed on abortion access in 1989, heeding what Justice Blackmun had called the Court’s “winks and nods” in the Webster ruling. The law required doctors to explain the “risks” of abortion to pregnant women, to provide them with information on “alternatives to abortion,” and to obtain written consent for abortions. It also forced women to wait twenty-four hours for an abortion after signing the consent form, required unmarried women under eighteen to secure written consent form at least one parent, demanded that married women notify their husbands unless their pregnancy resulted from “spousal sexual assault” or they feared “bodily injury” from their husband, and opened all abortion consent forms to public inspection,
A coalition of abortion providers, headed by Planned Parenthood, sued Pennsylvania’s anti-abortion governor, Robert Casey, to block the law’s enforcement. A federal appellate panel upheld all but the spousal notification provision; the judges based their ruling on a finding that in Webster the Supreme Court had abandoned the “strict scrutiny” test in abortion cases. They applied instead Justice O’ Connor’s test: Did the Pennsylvania restrictions impose an “undue burden” on women seeking abortions? Like the question of what process is “due” under the Fourteenth Amendment, deciding what is “undue” requires judges to determine if lawmakers have made it too difficult for women to exercise their rights under Roe. Pro-choice leaders rushed Casey to the Supreme Court; anticipating a reversal of Roe, they wanted to make abortion rights the major issue in the 1992 presidential campaigns. Public opinion polls showed a pro-choice majority among the electorate, and voters would presumably back candidates—for both the White House and Congress—who vowed to protect abortion rights through the legislative process. The Supreme Court would become the whipping boy in this political scenario.
The justices heard argument in Casey on April 22, 1992. Kathryn Kolbert spoke for Planned Parenthood and challenged the Court to either flatly reverse or firmly uphold Roe and end the uncertainty about abortion rights. “Never before has this Court bestowed and taken back a fundamental right that has been part of the settled rights and expectations of literally millions of Americans for nearly two decades,” Kolbert said. Taking back those rights, she added, “would be incompatible with any notion of principled constitutional decision-making.”
Pennsylvania’s attorney general, Ernest Preate, Jr., spent most of his twenty minutes at the podium fielding questions about the spotisal-notification provision of his state’s law. He argued that the Court could uphold the law “short of overruling Roe,” but if the two cases could not b
e reconciled, then “Roe, being wrongly decided, should be overruled.” Preate gave his remaining ten minutes to Solicitor General Kenneth Starr, who spoke for the Bush administration and urged the Court to overturn Roe without equivocation. Noting Starr’s denial that the Constitution provided any “textual basis” for abortion rights, Justice Stevens asked to see the provision that made fetuses “persons” with legal rights. “I think it’s in the nature of our system,” Starr replied, and did not need to have any “basis in the Constitution.” States have power under the Tenth Amendment, he added, to adopt laws “that reflect the morality of the people, within forced morality.
Speculation about the outcome in Casey centered not on whether the justices would uphold the challenged provisions of the Pennsylvania law, but on whether Roe would live or die at their hands. As the Court’s term neared its end in June 1992, the New York Times ran a front-page story under the headline “Changed Path for Court? New Balance Is Held by Three Cautious Justices.” Linda Greenhouse wrote that “effective control of the Court has passed to a subgroup of the majority, a moderately conservative middle group of three justices.” Pictured next to her article were Justices O’Connor, Kennedy, and Souter. “The group’s hallmarks,” Greenhouse continued, “appear to be generally cautious approach to deciding cases, a hesitancy to overturn precedents and a distaste for aggressive arguments, whether those presented to the Court or those made by the justices themselves in written opinions.” Greenhouse made no mention of O’Connor’s extreme distaste for Justice Scalia’s sarcasm and hyperbole, but Court-watchers knew it well. “This group does not always vote together,” Greenhouse noted of the centrist bloc, “but when it does, its views prevail.”
