The Nine (7 page)

The interview came at a time when the justices rarely said anything to the press, much less engaged in soul baring for
People
magazine. Thomas’s cooperation with the magazine was especially inappropriate because, just a month earlier, he had refused to answer exactly these kinds of questions about his personal life before the Judiciary Committee. The
People
spread compounded the Court’s sense of bewilderment about him.

Thomas moved into his chambers and heard…nothing from his new colleagues. In part, this was just the style of the Rehnquist Court. The justices did not casually drop by one another’s offices. At the D.C. Circuit and in his other government jobs, Thomas liked to wander the halls, shoot the breeze, or make spur-of-the-moment lunch plans, but that simply wasn’t done at the Court. He met his new colleagues at conference, where they greeted him cordially, but their interaction stopped there. For Thomas, the silence in his chambers was deafening.

So Thomas retreated. Two of the first decorating touches on the bare walls of his office were telling. In the entrance foyer he posted an admonition to respect the confidentiality of all Supreme Court business. On the door to his private office, he put the words “Do Not Disturb.” He used to enjoy taking lunchtime walks around the D.C. Circuit courthouse, but his notoriety made anonymity impossible. He even stopped driving his beloved black Corvette to work. (“REZ IPSA,” the vanity license plate said, a play on the Latin legal phrase that means “The thing speaks for itself.”) The car was too recognizable. “I used to love to walk out with my clerks and walk down to the Old Post Office and have barbecue or something like that or walk over to Union Station and have cheese fries or something,” Thomas told the
Docket Sheet
, the Supreme Court’s internal newsletter, in the only interview he gave after
People
. “My total loss of anonymity has been the big change in that regard.” In one respect, it was fortunate that Thomas almost never left the Supreme Court building by foot in his first year, because it meant that he probably never saw the boldly lettered graffito on a Capitol Hill sidewalk across the street. It said, “Anita Told the Truth.”

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?

3

QUESTIONS PRESENTED

T
here 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.