The Nine (23 page)

In the early nineties, several states were making millions of dollars selling the information in their Department of Motor Vehicles databanks to direct-mail operators, insurance companies, and other marketers. Citizens began objecting to the practice, and Congress responded in 1994 by passing the Driver’s Privacy Protection Act, which essentially told states they couldn’t make such sales without the drivers’ consent. South Carolina sued to stop enforcement of the act, asserting that the federal law was a violation of states’ rights.

The claim seemed to mesh with the Rehnquist Court’s approach to federalism. Here was Congress dictating to the states how they should manage a classic function of state government, administering driver’s licenses. In 1997, the Court had struck down part of the Brady Bill gun control law, saying that the federal government had no right to force states to conduct background checks on gun buyers. As Scalia wrote for the Court in that case, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers…to administer or enforce a federal regulatory program.” Wasn’t the law on driver’s licenses the same thing—a directive to the states to solve a particular problem?

Breyer thought that the regulation of a massive and complex national economy could only be led by the federal government and that Congress had every right to pass these kinds of laws. But how, he wondered, could he make that point in the context of this case?

South Carolina was represented by its attorney general, Charles Condon, who was also the plaintiff in the case, known as
Reno v. Condon
. One of the immutable laws of oral advocacy in the Supreme Court is that elected officials, like state attorneys general, ought not to do it. Especially in the Rehnquist years, when aggressive questioning from the bench was the rule, nonspecialists generally failed miserably to advance their cause in front of the justices. Politicians generally possessed none of the key attributes of good oral advocacy: intimate knowledge of the Court’s precedents, intellectual dexterity with complex concepts, the ability to answer hard questions concisely. (John Ashcroft had a notoriously bad outing in front of the justices when he was attorney general of Missouri; wisely, then, Ashcroft did not follow the informal tradition for each attorney general of the United States to argue a case.) Still, few state attorneys general can set aside their egos long enough to forgo the opportunity to argue themselves. So it was with Charlie Condon.

“This case is not about protecting privacy,” Condon began, promisingly enough. “The issue in this case is whether thousands of state officials across the country can be pressed into federal service by the Congress to administer a federal regulatory act. The Driver’s Privacy Protection Act is complex, it’s burdensome, and it applies only to the states of the United States.”

When Condon said, “We’re being puppets of the federal government,” Breyer decided to spring his trap.

“Isn’t that true of every federal prohibition on what a state government does?” Breyer asked. “I mean, suppose you sell hot dogs at the state park. Don’t you have to comply with the food and drug laws? I mean, those laws may be complicated, and you may have to say what kind of a hot dog and what kind of a stand, and what about—it’s certainly a lot better than the minimum wage, or the—isn’t it? I mean, you have to do a lot less than that. In other words, is your argument on this part just going to set aside all federal regulatory programs that tell states what they can’t do?”

The question put Condon completely in a box. He could not say that the state could sell inferior hot dogs in its parks. He could not say that the state could pay less than minimum wage. So how did Condon answer?

“Justice Breyer, that again is a good question, but that goes to the heart of this case. We aren’t selling hot dogs here.” Condon’s answer was so inept that some people in the audience started to laugh. But O’Connor followed up.

“Well, let me ask you another example,” she said. “Congress passed the Internet Tax Freedom Act, and it told states they couldn’t tax these Internet transactions for a period of time, can’t do it. I suppose under your theory that’s invalid, too. It only dealt with the states and governmental entities. I suppose that’s invalid, is that right?”

This question was even more ingenious, because O’Connor picked a federal law beloved by conservatives. The federal ban on state taxes on Internet transactions could hardly be characterized as the heavy hand of the liberal federal government. But it was, indeed, a federal restriction on state sovereignty. All Condon could mutter in reply was, “That could raise some concerns.”

Through his question, Breyer had underlined the folly of trying to wall off the states from federal regulation. It couldn’t be done, and it shouldn’t be done. The case turned into a rout. At the conference, the vote was 8–1 in favor of the federal law. But then Rehnquist, the great patron of states’ rights, assigned the opinion to himself and that prompted Scalia, the would-be dissenter, to make the Court unanimous.

The chief had not given up on federalism, of course. In the same term, Rehnquist succeeded in invalidating a part of the federal Violence Against Women Act. The disputed provision allowed women who claimed they had been assaulted because of their gender to sue their attackers in federal court. The provision was the kind of political stunt that generated such contempt for Congress among Rehnquist and his allies. Assault victims could always sue in state court; the federal law was largely symbolic, and rarely invoked, and the Court, 5–4, struck it down as a violation of the Commerce Clause. But the effect of the decision in the real world was almost meaningless; it curtailed lawsuits that weren’t being filed anyway. After more than a dozen years as chief justice, Rehnquist had failed to limit the power of the federal government.

In this year of defeat after defeat, Rehnquist also failed to make progress on abortion—in a case where the facts largely favored his side.

The Court had largely stayed away from the subject since
Casey
in 1992. The decision by the
Casey
troika of O’Connor, Kennedy, and Souter had not settled the issue for all time, but they had resolved most of the major controversies. First-trimester abortions could not be banned; parental consent laws were permissible; spousal notification—O’Connor’s bête noire—was out. Not coincidentally, public opinion had settled in very much along the lines the Court had devised. President Clinton was pleased with the status quo as well. The law on abortion wasn’t broken, so the justices, especially O’Connor, didn’t try to fix it.

For a little while after
Casey
, the antiabortion movement floundered, looking for an issue that might restore its momentum in both the political and legal arenas. Then, one day, an anonymous informant slipped an obscure medical paper to Douglas Johnson, a top lobbyist for the National Right to Life Committee. The eight-page work had been prepared for the National Abortion Federation, a group of abortion providers. It was an explicit how-to guide for terminating pregnancies after the twentieth week. The author, Dr. Martin Haskell of Cincinnati, said he had developed a technique where he dilated a woman’s cervix over a period of several days and then moved the fetus to a feetfirst breech-birth position. Using surgical scissors to cut into the skull, he vacuumed out the contents and, with the head reduced in size, removed the fetus from the pregnant woman. Haskell called this procedure “dilation and extraction,” or D&X. (Previously, late-term abortions had been conducted by removing the fetus in pieces.) Johnson saw to it that the paper received wide circulation in the antiabortion movement, which dubbed the practice described as “partial birth” abortion, because the fetus was alive when the procedure began.

The grisly details had a galvanizing effect both inside and outside the movement. Abortion opponents saw the practice as barbaric and indefensible, nothing less than infanticide. In state legislatures and in Congress, where Republicans now presided, prolife politicians moved quickly to legislate a ban. Supporters of abortion rights were thrown on the defensive. They pointed out that such abortions were extremely rare, amounting to less than one percent of the more than one million abortions performed each year in the United States. And the vast majority of these abortions were done on women who suffered major medical complications or whose fetuses were horribly defective. Still, the images conveyed by the procedure proved to be politically compelling. The Republican Congress passed bans twice in the 1990s, and Clinton vetoed them each time because neither bill had an exception to protect the health of the mother. Abortion opponents had greater success at the state level. Throughout the decade, one state after another passed laws prohibiting the practice. Inevitably, notwithstanding the justices’ reluctance to return to the divisive subject, the Supreme Court would have to decide if these laws could stand.

The case came before the justices on April 25, 2000, the second-to-last day of oral arguments for the term that began the previous October. Pushing through a decision of this magnitude before the summer recess at the end of June would clearly be a formidable challenge, given the complexity and contentiousness of the issue. The courtroom was tense when Don Stenberg, the attorney general of Nebraska, stood to defend his state’s law, which had been declared unconstitutional by the Court of Appeals for the Eighth Circuit in
Stenberg v. Carhart
. “The issue here today is whether a state may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions,” he said.

Scalia always asked the most questions in oral argument, but the issue in
Stenberg
moved him to a level of hostile garrulousness unprecedented even in his career. He dominated the argument to an almost embarrassing degree. “General Stenberg,” he asked at one point, “I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb. Is that not what the legislature was concerned about?” (It was, said Stenberg.) To the lawyer for the Nebraska obstetrician who brought the case, Scalia offered this soliloquy: “Neither
Roe
nor
Casey
are written in the Constitution. They may not have mentioned all of the appropriate interests that may be taken into account. Why is it not an appropriate interest that the state is worried about rendering society callous to infanticide? There were very many highly civilized societies, including the ancient Greeks, who permitted infanticide, who said that the right of parents included the right not to be burdened with a child they didn’t want, especially a deformed child. And therefore, in order to prevent other societies descending into that degree of callousness, the numerous states have enacted these laws. I don’t think it’s so much a concern with medical matters. I think it’s a concern with the horror of seeing, you know, a live human creature outside the womb dismembered.”

Everyone in the courtroom was waiting for O’Connor to tip her hand. Finally, she broke her silence to say: “Mr. Stenberg, let me ask you a question. There is no exception under this statute, as I read it, for exceptions for the health of the woman, is that correct?” He answered, “That is correct, Your Honor, and it’s not necessary.”

That, of course, was a matter of opinion. The question illustrated O’Connor’s priorities when it came to abortion. She was all for limitations and restrictions, but not at the cost of women’s health. She didn’t care if laws were designed to talk women out of having abortions, but the choice ultimately had to belong to the women themselves.

The issue in
Stenberg
was not simple. The medical testimony about the kinds of procedures outlawed by the Nebraska law, and the effect of the bans on women’s health, was closely and inconclusively debated at the oral argument and in the briefs. The result of the conference on Friday, April 28, was similarly ambiguous. Four justices—Rehnquist, Scalia, Kennedy, and Thomas—wanted to uphold the law. Four others—Stevens, Souter, Ginsburg, and Breyer—wanted to strike it down as a violation of
Roe
and
Casey
. O’Connor said she would vote to strike the law down if it did in fact jeopardize women’s health.

The result left Stevens as the senior justice in a tenuous majority. The customary route in these circumstances would have been for Stevens to give the opinion to O’Connor, who was the shakiest member of the coalition. But Stevens gave it to Breyer instead. O’Connor was such a reluctant member of the majority that there was a possibility that she might find, as justices sometimes did, that an opinion “wouldn’t write”—that is, trying to explain the law’s unconstitutionality might push her to an opposite conclusion. Breyer and O’Connor had become close friends, and Breyer had the political skills to keep his senior colleague on board. Moreover, Breyer had the technical expertise to assemble the complex medical evidence in support of invalidating the law. So, with the days in the term slipping away, Breyer set out to save his majority in what would certainly be his most important opinion in six years on the Court.

“Steve,” a friend once told Breyer, “you think like an eagle, but you write like a turkey.” Yet his plodding, antirhetorical style served Breyer well in the
Stenberg
assignment. He determined to make almost no reference to
Roe
,
Casey
, and the right to privacy; of those two cases, Breyer wrote, “We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.” To do so, he focused on the question O’Connor asked in oral argument. He set out to show that the Nebraska law deprived women of the right to the best medical choices for their health. Or, as Breyer put it in his gnarled prose, “The State fails to demonstrate that banning [this kind of abortion] without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, [it] would be the safest procedure.”