Sisters in Law (33 page)

Almost as bad as his votes were the opinions he expressed. Like Ginsburg's only defeat—the Florida widow's tax case,
Kahn v. Shevin
, all those years ago in 1974—the opinions in
Miller
and
Stenberg
undermined her core strategy of protection for women's equality. Since 1971 she had been steadily advancing the case for women by building a structure of precedent that ruled out every
element of Kennedy's analysis. From
Reed v. Reed
in 1971 to
United States v. Virginia
in 1996, the Court moved to treat women as individuals, not members of a class reduced to the average behavior of the group. Even if it were administratively convenient, as the state argued in
Reed
, the Court forbade it. Specifically, women could not be lumped together and presumed to be dependent while men were typecast as self-sufficient. All the Social Security decisions, starting with Stephen Wiesenfeld's landmark case, denied the government the easy path of stereotyping women as dependent hausfraus who must be cared for when their husbands die. The jury cases shut the state out from the defense that it was merely seeing to the moral well-being of such fragile creatures and from coarsening society, by protecting women from the rough-and-tumble of the courthouse. The jury cases and the Social Security cases also stripped the state of the argument that women must be treated differently because they needed to stay home and tend the children. Women couldn't escape jury service because they were the presumptive caregivers and they wouldn't automatically get better Social Security benefits if left behind either.

After all that effort, suddenly, in the citizenship case in 1998 and scarily in Kennedy's dissent in
Stenberg
, Ginsburg found herself confronting the zombie invasion of sex-role stereotypes she had thought buried long ago. If Kennedy were the deciding vote, women would be treated as a class, based on their behavior, especially as childbearers and caregivers. Giving birth would be rewarded for the good of the nation. Refusing to give birth would be heavily penalized to defend the moral health of the society.

FRAGILE MAJORITY

Things got worse. Teaching in Crete the summer of 1999, Ginsburg started feeling unwell. Doctors, thinking she had diverticulitis, found colon cancer. In September, she had surgery—“9-1/2 hours” of it, she later reported to Stephen Wiesenfeld. Sister in law O'Connor was the first one to phone her after surgery. Here's the deal with cancer, O'Connor advised. Have your chemotherapy on
Friday so you have the weekend to recover before the Court's session on Monday.

It was good advice. After her surgery, Ginsburg endured eight months of chemotherapy and radiation. Court records contain no announcement of her missing any meetings, even the ones before the term opened that fall, although she ruefully admitted she was “trying to say no to any ‘extras.'” (A year later, the aftermath of the surgery and radiation was still causing her what she euphemistically called “shut downs.” The best remedy, she confided to Wiesenfeld, was to “tough it out.”) She was there for the argument in the partial birth abortion case and to cast the critical fifth vote at conference. In August 2000, her one-year checkup revealed no further signs of colon cancer. Come back in three years, the doctors said. “Great words to hear,” she crowed.

Still one Supreme Court appointment was all that stood between American women and the tender ministrations of Justice Kennedy. The election of 2000 loomed.

BUSH V. GORE

On election night 2000, Justice O'Connor and John O'Connor were at an election party at the home of Mary Ann Stoessel, doyenne of the Washington establishment and widow of the legendary diplomat Walter Stoessel. Shortly before 8 p.m. NBC called Florida, and thus the election, for the Democrat, Al Gore. “This is terrible,” the justice said. “That means it's over.” She rose from her chair in front of the TV with an air of disgust. John O'Connor volunteered an explanation of her abrupt behavior. She wanted to retire, he told them, so that they could go back to Phoenix. She would not, however, hand her seat over to a Democratic president. So if Gore won Florida, they were doomed to at least four more years in Washington, D.C.

In the ensuing years it emerged that she had good reason to be concerned about their future: John O'Connor was suffering from early onset Alzheimer's disease. Indeed, that may explain his uncharacteristically imprudent remarks about the justice's political allegiance. Sooner or later he would have to be institutionalized, and most of their children, who might help her with the burden of caring for him, lived in Arizona. Her upset, it soon emerged, may have been premature. Within hours the networks declared Florida—and the election—too close to call. Both sides embarked upon a frantic five-week campaign to pull the outcome in their direction, the Democrats to re-count the votes and the Republicans to defend the Republican secretary of state's assignment of victory to Bush.

Five weeks later, O'Connor cast the decisive fifth vote in
Bush v.
Gore
, stopping the election contest with Bush as the declared winner in Florida and thus the nation. The most extreme conservatives on the Court—Rehnquist, Scalia, Thomas—wanted to rule that the Florida state court had no business telling its state how to handle an election dispute. Election disputes are for the state legislatures, they contended. Their position was problematical, because if courts can't review state law, even state election law, much of the last two centuries of constitutional law, including the Supreme Court's authority to review acts of Congress, was cast into doubt.

Anthony Kennedy wanted to rule that the Florida re-count would violate the equal-protection clause of the Fourteenth Amendment because it didn't re-count the ballots from the whole state. The equal-protection argument had obvious problems of its own, because the Court could simply have ordered Florida to conduct a uniform and universal re-count. Worse, since balloting all over the country is wildly variable, the implications for future elections were catastrophic. Kennedy solved the problem by adding a line that the decision applied only in the exact facts of the Florida re-count in
Bush v. Gore
. His words, he said, carried no precedential value for any other case. Joined by O'Connor, Kennedy's opinion for the court (Rehnquist, Scalia, and Thomas concurred on their separate theory) put George Bush in the White House.

How could she? The woman who helped outlaw sexual harassment and saved abortion rights, turning the power to shape the Court over to a Republican president from Texas. “It will be impossible to look at O'Connor, Kennedy, Scalia, Rehnquist, and Thomas in the same light again,” declared the
New Republic
legal commentator Jeffrey Rosen. Instead of “carefully thought out positions,” as the
Los Angeles Times
described her work in 1993, after
Bush v. Gore
, her minimalist jurisprudence suddenly looked “addled and uncertain.”

That the decision was so transparently devoid of any legal foundation left only a search for a political explanation. Perhaps she didn't know, commentators speculated, that the gun—pointed squarely at women's rights—was loaded. After all, George W. Bush came from such a fine family. Maybe, she thought, he would have
governed in the mode of his father, who, as O'Connor wrote to Goldwater in 1988, was so “vital for the Court and for the nation.” Given O'Connor's robust history as an avid observer of electoral politics, the ignorance explanation is almost impossible to credit. As the electoral website
On the Issues
reported at the time, Bush the candidate had said he supported a constitutional amendment outlawing abortion except in cases of rape or incest or to protect the life of a mother. He was “disappointed” by the Court's decision, with O'Connor providing the crucial swing vote, to strike down the Nebraska “partial birth abortion” law. He “believed in strict constructionists,” and in one strict constructionist in particular: “I have great respect for Justice Scalia, for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends.” For fourteen years, Justice Scalia had been the most consistent vote on the Court to defeat women's claims. He even voted in favor of VMI.

The reporter Jeffrey Toobin, who had written many positive reports about the FWOTSC, tried to explain her vote in
Bush v. Gore
as driven by her loyalty to the Republican Party: “She loved politics and more to the point the Republican Party.” Not only, as he reports, did she refer to the Republicans as “we” and “us” when discussing Rehnquist's betting pools on the elections, she also explained her poor performance in the wagering of 1986 as the result of her “optimism” that the Republicans would win more races than they did. As recently available material reveals, fretting with Barry Goldwater that George H. W. Bush might not win the election of 1988, she had described Bush as vital to the nation—and to the Court.

At a tony D.C. dinner party right in the middle of
Bush v. Gore
, she loudly assured her fellow guests that she knew terrible things about the Gore campaign's behavior in Florida: “‘You just don't know what those Gore people have been doing,' she said. ‘They went into a nursing home and registered people that they shouldn't have. It was just outrageous'” As Toobin points out, there is no obvious explanation for why the Supreme Court justice was broadcasting a baseless canard from some right-wing website. But the
remark is telling. To establishment Republicans like Sandra Day O'Connor, the Democrats would always carry a faint whiff of Tammany Hall bosses, voting the cemetery (or the nursing homes) and stealing elections.

Not only were the Democrats supposedly voted for by ineligible nursing home patients, the voters they did have didn't seem to know what they were doing. In the Florida contest, the Gore side argued that old Democratic voters didn't know how to cast their ballots when the form of the ballot changed in Palm Beach County. O'Connor was legendarily impatient with people who couldn't handle the business of everyday life; she was always telling people how to drive and giving them directions to places whether they wanted them or not. The Democratic-dominated Florida Supreme Court came down with a very heavy-handed opinion in Gore's favor, in what looked like a transparently partisan effort. Like the Democratic Party and its inept voters, Florida was a “mess” by O'Connor's tidy standards. By contrast, the Republican Party represented her old friend Barbara Bush's son George, a “compassionate conservative” and the certified winner under Florida's designated certifier, Secretary of State Katherine Harris.

One fact unites O'Connor's decisions: from her choice of the lightweight, errant Harry Rathbun as her mentor in 1951 to her vote in
Bush v. Gore
a half century later, O'Connor was impervious to political theory. Rathbun promoted the making of a better world without any stable vision of what that better world would look like. O'Connor cast her vote on everything from freedom of religion to freedom to abort with a similar absence of vision. When she retired, she devoted herself to causes such as civic education and the merit selection of judges, good-government initiatives, similarly empty of political goals.

But picking that president changed the country irretrievably. The Republican Party of 2000 had a clear theory of how America should be governed and a scorched earth commitment to the outcome. She might have thought she was picking the more attractive litigant or tidying up a messy situation, but, when the old-fashioned good-government Girl of the Golden West met the
ideologues of the twenty-first-century Republican Party in
Bush v. Gore
, they took her lunch. Five years later, John's illness having become totally unmanageable, she retired. In her place, George W. Bush nominated Samuel Alito, the judge from Pennsylvania who had thought married women should have to go to their husbands if they needed an abortion.

INDIAN SUMMER

To be clear, the Supreme Court's decision may not have changed history. The re-count might very well have confirmed Bush's election, or the other institutions the Constitution entrusted with election disputes—the Florida legislature, the House of Representatives—might have installed him in the Oval Office. What the Court did, by stopping the re-count, was to terminate any chance of another outcome to the election of 2000. On January 20, 2001, George W. Bush was inaugurated as the forty-third president of the United States. Two days later, he reinstated the prohibition, suspended by Bill Clinton, against giving foreign aid to any organization that performed or “promoted” abortion. Planned Parenthood International's budget went down by 20 percent.

When the new crop of clerks arrived in 2001, after the
Bush v. Gore
term, they had the clear sense that something wrenching had happened in the Court. Not just disagreement, which was normal, but a fundamental violation of institutional norms. In O'Connor's chambers, the clerks were focused on getting along and working with the other clerks across all the chambers. Sometimes all nine clerks assigned to a case would get together to work on the memos they were writing, and often all the clerks on one side would meet. The justices meanwhile retreated to exchanging views in the most “democratic” manner—sending formal memos to the entire conference, exchanging views on paper accessible to all.

Perhaps it was buyer's remorse, but, after
Bush v. Gore
, Justice O'Connor embarked upon a five-year stretch of voting with the liberals in the big cases of civil rights and equality. She voted—and wrote two important decisions—on behalf of women in every
case after
Bush v. Gore.
She reversed decades of her prior decisions and voted to allow a state to make a district that would support a black representative and struck down, after many years of resistance on the issue, a death penalty law that allowed execution of the retarded. In 2003, she voted to declare the criminal sodomy laws unconstitutional. O'Connor was the only justice of the five who had upheld the criminal sodomy laws in 1986 to change her vote. Chief Justice Rehnquist remained in favor of criminalization. The other three justices who voted with Rehnquist in 1986 had all left the Court. Unwilling to say she had been wrong before, she came up with a novel equal-protection argument for striking down the law, and filed a solitary concurring opinion. (Apparently the justice's decision to swing to the majority on gay sex caused a flap among her clerks, one of whom was a committed member of the conservative lawyers' organization the Federalist Society, and later a counselor to George W. Bush.) And finally, O'Connor wrote the opinion that saved, for a time, affirmative action in college admissions.

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.