The Nine

by Jeffrey Toobin

  Unlike most of his fellow justices, Thomas made an effort to learn the names of the people who worked at the Court—the cafeteria workers, clerks, and cops. Despite his friendly demeanor, the Court employees saw how devastated he was by the confirmation battle. Years later, Thomas recalled that one of the Supreme Court police officers who noticed how “battered and beaten” he looked took to welcoming him each day with the words “Don’t let them take your joy.”

  Just weeks after joining the Court, Thomas had a chance to strike back at the “them” who had tormented him in the hearings. The question before him: Should Roe v. Wade be overruled?

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  QUESTIONS PRESENTED

  There were two kinds of cases before the Supreme Court. There were abortion cases—and there were all the others.

  Abortion was (and remains) the central legal issue before the Court. It defined the judicial philosophies of the justices. It dominated the nomination and confirmation process. It nearly delineated the difference between the national Democratic and Republican parties. And in 1992, the issue—and the Court—appeared to be at a turning point.

  For the first time since Roe v. Wade was decided nineteen years earlier, eight of the nine justices on the Court had been appointed by Republicans, whose party was publicly and officially committed to ending legalized abortion. (And the single Democratic appointee, Byron White, who was named by John F. Kennedy in 1962, had dissented in Roe and voted against abortion rights in every subsequent case.) If there was ever a perfect opportunity to overturn Roe once and for all, the spring of 1992 was it.

  Unlike the other branches of government, the courts, even the justices of the Supreme Court, cannot simply decide to take action on an issue of importance to them. They must wait until a case happens to move through the lower courts in a way that raises the issue. Savvy lawyers can shape the process. Indeed, as the Court became more conservative in the Burger years, certain liberal civil rights groups would sometimes actually put up money to pay off plaintiffs in controversial cases, so that the justices would not decide the case and create a “bad” precedent. But sometimes the interests aligned so that a major issue landed in the Court at the most dramatic possible time. That was what happened right after Thomas joined the Court.

  In the years since Roe, states with antiabortion majorities had tried in different ways to pass restrictive laws that the Supreme Court would approve. The laws tracked the evolution of the Court. As the Court became more conservative, the states became bolder in tightening the restrictions. Anticipating the Court’s move to the right on abortion—and hoping to push it further in that direction—Pennsylvania had passed one of the nation’s most restrictive laws in 1989. The law forced women who wanted an abortion to wait twenty-four hours after contacting a clinic before getting one, and mandated that the women be given a lecture about fetal development and alternatives to abortion. Minors seeking abortions would have to get permission from a parent (or a judge), and married women would have to inform their husbands of their plans.

  On October 21, 1991—six days after Thomas was confirmed and two days before he was sworn in—a three-judge panel of the United States Court of Appeals for the Third Circuit upheld the Pennsylvania law almost in its entirety. The majority in Planned Parenthood of Southeastern Pennsylvania v. Gov. Robert P. Casey rejected only one part of the law, the provision mandating that married women first inform their husbands if they sought an abortion. “Most married women will discuss the abortion decision with their husbands,” the majority said. But some married women would not, because “many husbands are capable of violence in circumstances of this kind and will use physical force and the threat thereof to keep the wife from access to the clinic.” The third judge on the Third Circuit panel disagreed, arguing that he would have upheld the spousal notification requirement along with the rest of the law.

  That third judge, Samuel A. Alito Jr., had just been appointed to the bench a year earlier by President George H. W. Bush, and this was his first major opinion. He was only forty-one years old, a former federal prosecutor and Justice Department official who could expect serious scrutiny as a possible Supreme Court candidate down the line. Like all such judges, Alito knew that he would be in great measure defined by how he ruled on abortion. So the case was of no small consequence, and unlike the other judges on his panel, Alito didn’t split the difference. He supported all of Pennsylvania’s restrictions—including the requirement that women notify their spouses in advance before obtaining an abortion.

  Spousal notification would affect very few women in Pennsylvania, Alito said. The evidence in the case showed that between 70 and 80 percent of women who sought abortions were unmarried, he noted, and 95 percent of married women who sought abortions did tell their husbands. “Thus, it is immediately apparent,” Alito wrote, that the law “cannot affect more than about 5 percent of married women seeking abortions or an even smaller percentage of all women desiring abortions.” In light of these small numbers, there was no “broad practical impact needed to establish an ‘undue burden.’ ”

  In one important respect, the three Third Circuit judges agreed. By 1992, Roe v. Wade was still nominally the leading Supreme Court case on abortion rights, but the Third Circuit scarcely paid any attention to Harry Blackmun’s venerable landmark. Rather, its judges concluded that the views of a different justice represented the true center of the Court; their opinions represented their best efforts at speculating how this justice—Sandra O’Connor—would view the case. When it came to abortion rights, even at the start of the 1990s, the Rehnquist Court was in fact the O’Connor Court.

  After blazing through Stanford Law School and graduating in 1952, O’Connor did not receive a single job offer as a lawyer. (The major Los Angeles law firm of Gibson, Dunn & Crutcher said she could come to work as a legal secretary.) But O’Connor ignored the slights, as became her custom, and concentrated instead on building a life with her new husband, John. He graduated from Stanford Law a year after she did, and following his army stint in Germany, they settled in the booming but still very small city of Phoenix.

  The next years passed in a blur, which was the pace of life O’Connor preferred. She had three boys in six years. She worked first at a small law firm, then as an assistant attorney general. She volunteered for local hospitals and the Salvation Army and worked her way up the hierarchy at the Junior League. She and John, who became a successful lawyer himself, hosted lively barbecues for dozens of people (often including Bill and Nan Rehnquist) at their adobe home in Paradise Valley. Once, according to her biographer Joan Biskupic, the O’Connors staged a campy dedication party for a bridge they had built over their backyard pool. Men wore top hats and tails, with white shorts and sneakers, and women sported gowns and pith helmets. Boiled beef, potatoes, and English muffins were served, and bagpipes provided accompaniment.

  Much later, in her chambers at the Supreme Court, O’Connor would demand that her law clerks replicate her own headlong style of living. Marriage, children, career, exercise, culture, politics, volunteer work—she had done it all and everyone else should, too. Female clerks were required to join in her three-mornings-a-week exercise class at the Court gym. (Late in her tenure, she added salsa dancing to the workouts.) Male clerks planning weddings were ordered to get in shape. (One stuffed an ice cream cone in his desk drawer so she wouldn’t see it.) Clerks dozing from exhaustion would be instructed to join her at special private showings at the National Gallery. An annual clerks’ picnic by the cherry blossoms in the Tidal Basin would (and often did) take place even in the rain. For O’Connor, even holidays were occasions for exertion. For Halloween, she demanded that her clerks decorate a pumpkin with a newsy theme. After 9/11, there was “Osama Bin Pumpkin” a year later, a Martha Stewart pumpkin—wearing prison garb.

  The formative political event of O’Connor’s years in Phoenix took place in 1969, when her local state senator moved to Washington to take a job in the Nixon administration. Though she had been
an assistant attorney general for only four years—and women politicians were still a novelty—she persuaded the governor, Jack Williams, to appoint her to fill the seat. O’Connor took to legislative work immediately, building coalitions, making deals, pushing bills through the process. The job suited her personality. She got along with people and liked to get things done. O’Connor came of age when Barry Goldwater dominated the Arizona Republican Party—and she supported him for president in 1964—but her work in politics never had a particularly ideological edge. Fittingly, one of the first bills she sponsored was to repeal a 1913 law that prohibited women from working more than eight hours a day. To O’Connor, this was paternalism, not protection.

  O’Connor took the same pragmatic approach to the subject of abortion, displaying the kind of artful political tacking on the issue that she would show on the Court. She had taken office when a drive was on to change abortion laws in the state legislatures, and Arizona was no exception. At the time she became a senator, Arizona law prohibited abortions except to save a woman’s life, and the following year, 1970, a liberalization bill came before a committee where O’Connor served. On April 29, 1970, according to local newspapers, she voted to end criminal prohibitions on abortions in Arizona. The measure passed the committee but never came up for a vote of the full senate. While she supported that prochoice measure, she also backed a restriction on abortion rights, in the form of a law that would have allowed only licensed physicians to perform abortions. Shortly after O’Connor became majority leader of the senate, Roe v. Wade made these initial rounds of legislative approaches moot; abortion would be legal regardless of what the state legislatures did. In Arizona at least, since the right to choose abortion was now protected by the U.S. Constitution, the issue faded from the state’s immediate political agenda.

  In a curious postscript, O’Connor’s record on abortion rights was a focus of the vetting process when Reagan was considering naming her to the Court in 1981. O’Connor told the vetter, a young Justice Department aide named Kenneth Starr, that she had never cast a vote on the abortion liberalization measure. Starr took her word for it, and no one else thought to check the Phoenix papers for a record of her vote. (The scrutiny of Supreme Court nominees became much closer in later years.) The omission allowed O’Connor to assure the Reagan team that she “personally” opposed abortion at the same time as she left a studied ambiguity about how she felt about the legal status of abortion rights. In truth, it seemed, O’Connor never gave abortion rights a great deal of attention as a legislator. To the extent she thought about abortion, she tried to steer a middle course between extremes on the issue—an approach that would remain her touchstone in the infinitely higher-stakes setting of the Supreme Court.

  As the lawyers in the Casey case turned their attention from the Third Circuit to the Supreme Court, the counsel for the plaintiffs had politics as much as law on her mind. Like all other Supreme Court practitioners, Kathryn Kolbert, the ACLU attorney who had shepherded the litigation through the Third Circuit, knew O’Connor’s penchant for the middle ground, but the lawyer wanted to take that option away. Kolbert thought it was time to challenge the Supreme Court—and the American electorate. So she devised one of the most audacious litigation tactics in Supreme Court history.

  By the time the Third Circuit decided Casey, Kolbert and her colleagues thought that the protections of Roe v. Wade had been whittled away for so long that it was better for their cause to have the precedent reversed once and for all. Kolbert wanted the Supreme Court to decide Casey—and presumably overturn Roe—before the 1992 election. That way, there would be no doubt about the stakes for future Supreme Court appointments.

  Kolbert had to move fast. After the decision by the three-judge panel of the Third Circuit on October 21, 1991, the ACLU could have petitioned all of the judges on that court to rehear the case en banc. That would have taken months. Alternatively, the Supreme Court rules gave her side ninety days, until mid-January 1992, to file a petition for a writ of certiorari. A petition submitted at that time probably would not have been acted upon until late spring, so the case would not have been argued until the fall of 1992 and the decision handed down in 1993, too late. To place the fate of Roe before the voters in time for the next election, Kolbert had to figure out a way to have the case argued and decided by the end of the 1991 term—that is, by June 1992.

  It took Kolbert just three weeks, until November 7, to file her cert petition. According to the Supreme Court rules, the party seeking review in the Court begins its brief with a section called “Questions Presented.” The art in writing these questions is to frame the issue in a way that will make at least four justices inclined to take the case. But Kolbert was writing for a broader audience than the Court itself, so she crafted the single question in the most provocative way she could: “Has the Supreme Court overruled Roe v. Wade, holding that a woman’s right to choose abortion is a fundamental right protected by the United States Constitution?” It didn’t take a law degree to understand that on the eve of the 1992 election, the future of Roe was now squarely before the Court.

  Kolbert’s strategy of forcing the Court to rule before the election was so transparent that it offended Chief Justice Rehnquist. He didn’t like the idea of the Court’s being used as a pawn in a political debate, and he didn’t care for litigants trying to game the Court’s schedule, either. So, the liberals on the Court believed, Rehnquist struck back. Using the powers of the chief justice, he simply kept Planned Parenthood v. Casey off the list of cert petitions that the justices would consider in their weekly conference. Rehnquist saw that the case was “relisted” and thus unresolved. Rehnquist was running out the clock. Harry Blackmun, whose entire tenure on the Court was coming down to a defense of his opinion in Roe, was furious as were his law clerks. In an unusual joint memorandum, they wrote, “We feel strongly that the case should be heard this spring…. If you believe that there are enough votes on the Court now to over-rule Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage.”

  But how to do it? How could Blackmun and the prochoice justices force Casey onto the Court’s calendar? John Paul Stevens figured out the answer. Stevens’s reserved manner and penchant for writing solo dissents and concurrences sometimes gave the impression that his iconoclasm equaled a lack of influence. But his raw intelligence and knowledge of the Court’s rules—along with his willingness to stroke the bigger egos of his colleagues—gave him a crucial advantage. To break the logjam on Casey, Stevens threatened to write a dissenting opinion on Rehnquist’s decision to relist the case. (Blackmun said he would join Stevens in the public protest.) Relisting was usually a purely procedural matter utterly unfamiliar to the general public. As far as anyone could tell, no justice had ever written an opinion dissenting from a relisting. That was the point. Stevens knew that to write one now—and to accuse Rehnquist of stalling because of abortion politics in a presidential election—would create a sensation. Rehnquist, ever mindful of protecting the Court’s reputation as well as his own, backed down. He agreed to put the case on the calendar, and on January 21, 1992, the Court announced that it would hear the Casey appeal on April 22—the final day of argument for the term and the last chance to have the case decided by Election Day.

  At the conference where the justices agreed to take Casey, David Souter pointed out that there was still one more matter to settle. The Court often adopted the “Questions Presented” in the brief of the appealing party, but Souter didn’t like the provocative one that Kolbert had submitted. In a memo to his colleagues, Souter said, “I suggested that the question be rephrased.” Souter did not want to acknowledge that the only choice in Casey was to make an up-or-down judgment on Roe. He wanted the flexibility to rule on the specifics of the Pennsylvania statute, without necessarily passing on the ultimate issue of Roe v. Wade. In his memo, Souter proposed “that a question be added specifically addressing the issue of precedent: What weight is
due to considerations of stare decisis in evaluating the constitutional right to abortion?” Stare decisis, which means “to stand by that which is decided,” is the Latin term for the rule of precedent. Souter’s colleagues ultimately decided not to use his question, preferring instead to list each provision of the Pennsylvania law and ask whether each was constitutional. But Souter’s question still turned out to be the most important one in the case.

  Few justices had rockier debuts than David Souter. He was sworn in on October 8, 1990, a week after the Court’s term started, and he never managed to catch up with the work his first year. By the spring of 1991, months had passed without an opinion from him. Finally, he delivered six opinions in the final month, but overall his performance had been embarrassing. At least, in that first term, the Republicans who supported Souter had reason to be pleased, for his record was decidedly conservative. He had joined Rehnquist and Scalia in most of the big cases that year, including one that touched on abortion. In Rust v. Sullivan, he cast the key vote in a 5–4 decision that upheld the so-called abortion gag rule, which forbade doctors who received federal funds from even mentioning abortion to their patients.

  At first, Souter’s eccentricities drew more notice around the Court than his jurisprudence. Fifty-two years old and a lifelong bachelor, he had the habits of a gentleman from another century. During the day, he would leave the lights off in his office and maneuver his chair around the room, reading briefs by the sun. He ate the same thing for lunch every day: an entire apple, including the core and seeds, with a cup of yogurt. When the justices sat together in their dining room, the two items would be delivered to Souter on the same fine china that served his colleagues; Souter was familiar with Coca-Cola, but he had never heard of a beverage that several of the other justices favored—Diet Coke. Souter did all his writing by fountain pen. Perhaps the best-known fact about the new justice was that when Warren Rudman, the New Hampshire senator who was Souter’s friend and patron, gave Souter his first television set, he apparently never plugged it in. By the end of Souter’s first term, there was some sentiment around the Court that he was overwhelmed by his new job. Souter almost said as much in his customary first interview with the Court’s in-house publication, the Docket Sheet. “I really see myself less as working than as trying to keep from being inundated by the flow of things to be done,” he said. “Somebody used the phrase that coming here is like walking through a tidal wave, and it is.”