Authors: Jeffrey Toobin
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.”
When the term ended in June 1991, Souter did not so much leave Washington as flee. He returned to the converted farmhouse in Weare, New Hampshire, that had been his grandparents’ home and where he had grown up. (Contrary to rumor, Souter did not live with his mother; she had moved elsewhere.) The swirl of events leading to his appointment had deprived him of the time to think about the magnitude of the task before him. In a letter declining an invitation from Blackmun to join him on his annual summer trip to Aspen, Souter wrote, “I have wanted as much as possible to be alone to come to terms in my own heart with what has been happening to me…. I have also felt the need to engage in some reading and thinking about matters that will be coming before the Court.” He wanted his summers, he wrote later, “wholly free for…self-education. I need some period of the year when I can make a close approach to solitude.”
When Souter returned the following fall for his second term—the year of
Casey
—it became clear both that he had been underestimated in Washington and that he brought a distinctive judicial philosophy to the bench. For most of the twentieth century, the political left and right had their clear judicial analogues on the Supreme Court. In rough terms, William Brennan and his allies used the Constitution as a vehicle for liberal change—to build a society with greater freedom and equality. On the other side, Rehnquist and Scalia generally put forth the view that courts should defer to political majorities and legislators and interpret the Constitution in line with the original intent of the framers. There was, however, a third tradition in American law, which was less familiar to the public because, unlike the others, it did not neatly reflect the division between the Democratic and Republican parties. But it was to this third tradition that David Souter belonged.
At his confirmation hearings in 1990, Souter made his affiliation plain. At the time, Souter was widely regarded as a “stealth” candidate because even though he had been attorney general of New Hampshire and a justice of the state supreme court, he had not taken public stands on the most controversial judicial issues of the day, like abortion. Prochoice advocacy groups assumed that as a justice Souter would simply do the bidding of the contemporary Republican Party. As the National Organization for Women said in a leaflet distributed during his hearings,
STOP SOUTER OR WOMEN WILL DIE
.
In those hearings, Souter did not so much take sides in the great legal debate of the day as puzzle the partisans on both sides. The hearings revealed that Souter had given deep thought to the Constitution and embraced a philosophy most closely associated with John Marshall Harlan II, who served on the Supreme Court from 1955 to 1971. Harlan, whose grandfather and namesake served on the Court from 1877 to 1911, was hardly a radical liberal; indeed, he dissented from many of the Warren Court’s most celebrated rulings. But neither was Harlan exactly a conservative, at least in modern terms. He believed that law existed to preserve the stability of society and that adherence to precedent best guaranteed a limited and predictable role for the judiciary. Above all, he believed in the rule of stare decisis. Like Harlan, Souter put his faith in the common law, the accumulated wisdom of judges and courts going back to the Middle Ages.
Also like Harlan, Souter believed that the Constitution expressed a libertarian ideal—that freedom from the restrictions of government counted as much as, or more than, the right of legislators to pass laws limiting individual freedom. And the people’s rights were not limited by the precise language of the Constitution, either. One of the strongest arguments against so-called unenumerated rights in the Constitution is that a written document should be limited in meaning to its precise terms.
In a famous dissenting opinion from 1961, Harlan rejected that view, stating that “the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion,…and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” Harlan’s view on unenumerated rights had become a crucial intellectual building block in the Court’s future decisions recognizing the right to privacy and, later, the right to abortion.
For David Souter, in 1992, the question then was whether restrictions on the right to choose abortion were the kind of “arbitrary imposition” prohibited by the Constitution. The way that Souter addressed that kind of question was to look at the common law and precedent. Thus, his proposed question, the key issue in the case: “What weight is due to considerations of stare decisis in evaluating the constitutional right to abortion?” For Souter, the answer wouldn’t just resolve
Casey
but define his judicial worldview.
Even early in Rehnquist’s tenure as chief justice, the Court’s oral arguments were transformed from the Burger years. Throughout the eighties, it was a quiet bench. Brennan, Marshall, and Blackmun asked hardly any questions, and Burger, White, and Powell only a few more. The change began when Scalia joined the Court in 1986. His pugnacious wit and open partisanship raised the energy level in the courtroom, and lawyers could soon expect a hot bench on even the most arcane issues. One way O’Connor prepared for oral argument was to plan questions with her clerks, and she began a tradition of asking the first question of most lawyers. Rehnquist and Kennedy liked to talk, too, and the overall level of volubility on the Court made what happened on April 22, 1992, so extraordinary.