The Nine (11 page)

In the end, there was no doubt about the real winner on the Court in
Casey
. In a little more than a decade, O’Connor had succeeded in recasting
Roe v. Wade
on her own terms. Moreover, she had triumphed with a position that was shared by virtually none of her colleagues over that time. The liberals—like Brennan, Marshall, Blackmun, and Stevens—had wanted to preserve the original rule of
Roe
. The conservatives—like Rehnquist, White, Scalia, and Thomas—had wanted to do away with
Roe
altogether. Even O’Connor’s allies in
Casey
, Kennedy and Souter, had embraced her position more out of expediency to build a majority than out of enthusiasm for her view. But the point remained: her view was the law.

In practical terms, O’Connor’s victory meant the “trimester framework” was out, but she did adopt Blackmun’s recognition that the key point in pregnancy was viability. “We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy,” the troika wrote. “The concept of viability, as we noted in
Roe
, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” Then, in the sentence that sealed O’Connor’s triumph, they wrote, “In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.” A stray observation from a separate opinion by O’Connor had become the law of the land on the most contentious constitutional issue of her time. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” In practical terms, the new rule meant that states could not prohibit early-term abortions, which were by far the most common. Not coincidentally, O’Connor’s solution to the problem of abortion closely reflected public opinion on the issue.

The final section of the joint opinion, the one drafted by O’Connor alone, drew the least attention but offered the greatest clues about the future of the Court. The Pennsylvania law provided that “no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion.” In his opinion on the Third Circuit, Alito approved this provision, but O’Connor laid into it, sounding more like a women’s studies professor than a Goldwater Republican. She wrote that “common sense” suggested that “in well functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion…. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”

To O’Connor, in this case and henceforth, the crucial issue was women’s autonomy and health. She said that Alito’s view was “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.” It was O’Connor’s Court now, responsive above all to the legal philosophy and political savvy of the former state senator from Arizona.

5

BIG HEART

E
arly in the third week in March of 1993, Byron White called to invite Ron Klain to breakfast at the Court on Friday, the nineteenth. On the surface, there was nothing especially unusual about White’s summons. Klain had clerked for White for two years in the late 1980s and gone on to start a career in law and politics—as chief counsel for the Democrats on the Senate Judiciary Committee and then as an associate counsel for the new president, Bill Clinton. As it happened, Klain’s portfolio included Clinton’s judicial appointments.

White liked talking to Klain because the justice still fancied himself a political insider—and a Democrat, even if few others did. Long ago, White had been a dashing figure of John F. Kennedy’s New Frontier. When he was appointed to the Court in 1962, the Senate was giving little scrutiny to Supreme Court nominees, and his hearing before the Judiciary Committee lasted fifteen minutes and consisted of eight questions. He had never been a judge, had spent most of his career in private law practice in Colorado, and was far better known for his exploits as a college and professional football star than for his brief tenure as Kennedy’s deputy attorney general. By far the best-known fact about White was his nickname, Whizzer, which he hated. At the time of his appointment, White’s views on constitutional issues were a mystery.

In three decades on the Court, White established himself as a thoroughgoing conservative. He dissented from most of the last round of famous decisions in the Warren Court—like
Miranda v. Arizona
—and he became a leading voice on the right through the Burger and Rehnquist years. He had dissented from
Roe
in 1973, wrote a scathingly dismissive opinion about gay rights in
Bowers v. Hardwick
in 1986, and generally voted for the government over the individual. (On race and the scope of federal power—the issues that most engaged him in the Kennedy Justice Department—he inclined toward a more liberal view.) To Klain and others, White would insist that it was the Democratic Party that had changed, not him, and that he remained true to the spirit of JFK, but he had few takers for that view.

As the week progressed, Klain started to have suspicions about the real purpose of the breakfast. He checked with some other former law clerks who sometimes joined him for breakfast with White, and he learned that none of them had been invited. Still, Klain told no one from the White House except his assistant about his appointment.

No breakfast was served. At 9:00 a.m. on March 19, White’s secretary ushered Klain into chambers, and the justice was seated at his big partner’s desk by the window. As usual with White, who was gruff and dour even before he turned seventy-five, there was little small talk.

White slid a sealed envelope across the table to Klain. “I’d like you to bring that back to your boss,” he said.

Klain nodded.

“And I have a copy for you if you would like to see it.”

The letter said White was resigning. Bill Clinton would have the first appointment to the Court by a Democrat since Lyndon Johnson named Thurgood Marshall in 1967.

Why now? Klain asked. The timing was a little unusual, as there was something of a tradition of justices resigning at the end of the term, in June. White spun an elaborate theory, which Klain had trouble following, about how the Court had now accepted all its cases for the year and that made it a good time to leave. Besides, White added, “I’ve done this job long enough.” Despite everything, White said, he remained a Democrat, and he wanted a Democrat to appoint his successor.

Before Klain got up to leave, he asked when White planned to release the news to the press.

“Ten a.m.”

Klain blanched. It was already past 9:15, and he wanted to make sure his colleagues in the White House weren’t blindsided by the news. Klain had walked to the Court from his home on Capitol Hill, so he had no car to race across town. Should he go back and get it? Catch a cab? He borrowed the phone in White’s secretary’s office and tried to reach Bernie Nussbaum, the White House counsel, or his deputy, Vince Foster. No one was available. And he couldn’t call when he was en route, because cell phones did not yet exist. His panic rising, Klain started dialing any White House number he could remember and finally passed the news to Ricki Seidman, a colleague. He then ran into the plaza in front of the Court and waved down a taxi.

At 9:45 a.m., Betty Currie, the president’s secretary, was waiting outside the Oval Office for Klain’s arrival. Moments later, slightly out of breath, Klain handed the letter to Clinton, who had already been told its gist.

“Strange,” Clinton said. “He was just here. He looked good.” The previous week, White had come to the Oval Office to swear in Janet Reno as attorney general.

“Okay,” Clinton said, handing White’s letter back to Klain. “Let’s talk about this tomorrow.”

If Byron White wasn’t a typical Democrat, neither was Bill Clinton. That was especially true when it came to the defining subject before the Supreme Court, abortion.

In 1992, a fiery Texas politico had opened the Democratic Convention with the words, “My name is Ann Richards. I’m prochoice, and I vote.” The remark was a testament to the centrality of abortion rights in Democratic Party orthodoxy. The issue marked perhaps the clearest difference between the two parties, one prochoice and the other prolife. Indeed, Robert P. Casey, the governor of Pennsylvania (and the defendant in
Casey
), had been denied the chance to speak at that convention in part because of his prolife views. Clinton himself was prochoice; he could never have been nominated otherwise. But Clinton’s view of abortion reflected his centrist New Democrat approach. He recognized that the subject of abortion made many people, especially swing voters, uncomfortable, and he wanted at least to reassure them that he recognized the difficulty of the issue. On the campaign trail, Clinton always used the same formulation when talking about abortion, saying that he believed it should be “safe, legal—and rare.”

During the campaign, when Clinton discussed the kind of individuals he would appoint to the Court, he expressed himself with characteristic political dexterity—or, seen in a different light, typical doublespeak. He would have no litmus test for his justices—but he would appoint only those who shared his prochoice views. In fact, Clinton had given the subject more thought than most other future presidents.

On Saturday afternoon, March 20, 1993, the president began to spell out specifically what he wanted in a future justice. In the small dining room adjacent to his private study—later infamous as the site of his trysts with Monica Lewinsky—Clinton met with Vice President Al Gore and White House lawyers Foster, Klain, and Bruce Lindsey to discuss White’s replacement. Almost as a lark, a couple of weeks earlier, Klain and Walter Dellinger, a Duke law professor temporarily on the White House staff before becoming assistant attorney general, had drawn up a list of fifty possible Supreme Court appointees. There were appeals court judges (mostly Jimmy Carter appointees to the federal bench), law professors, a few politicians and private lawyers. The list didn’t amount to much—just a row of names and their current affiliations—but it constituted, at that moment, the full extent of Clinton administration research on Supreme Court nominees. So Klain passed it around.

Clinton glanced at it. “Look,” he said, “the Court is totally fragmented and it’s dominated by Republican appointees.” (Indeed, White was the only Democratic appointee on the Court.) “It’s not enough for someone to vote the right way,” he said. “We’ve got to get someone who will move people, who will persuade the others to join them. It’s what Warren did. I want someone like that.”

Clinton thought it was unhealthy that the Court was dominated by former judges, few of whom had what he regarded as adequate real-world experience. Clinton’s term for these judges was “footnote people,” who were caught up in the minutia of law rather than its implications for people. The names of several nonjudges came up, but it quickly became clear that Clinton was most interested in one of them—Mario Cuomo, then governor of New York.

Clinton and Cuomo had a complicated relationship. Clinton admired the New Yorker’s way with words but found his indecisiveness maddening. Midway through his third term as governor, Cuomo expected a degree of deference from Clinton that the president did not always display. When Clinton first called Cuomo to discuss the Supreme Court, the governor ducked his call. His secretary told Betty Currie that Cuomo was in budget negotiations with the state legislature and couldn’t be disturbed.

Several members of Clinton’s staff—notably George Stephanopoulos and Gene Sperling, a top economic aide who once worked for Cuomo—loved the idea of putting Cuomo on the Court. To them, it was just the kind of bold gesture that could transform the Court and burnish Clinton’s own record as well. When Stephanopoulos spoke to the governor by phone, on March 30, Cuomo wouldn’t commit himself, saying, half jokingly, “I can’t believe you’ve descended to this level of groveling exploitation.”