The Nine (4 page)

But while
Roe
commanded a majority of seven justices in 1973, the decision in
Thornburgh
was supported by only a bare majority of five in 1986. So within the Reagan administration, the lesson of the case was obvious—and one that conservatives took to heart. They didn’t need better arguments; they just needed new justices.

Reagan himself had little interest in the legal theories spun by his Justice Department. He had long been on record as opposed to legalized abortion, but the president was manifestly uncomfortable with the subject as well as with the most zealous advocates in the prolife cause. So when, early in his first term, he received the unexpected resignation of Potter Stewart, the president’s first reaction was less ideological than political. He wanted above all to fulfill his campaign promise to appoint the first woman to the Court, with her precise stands on the issues a distinctly secondary concern. After searching the small pool of Republican women judges, Reagan selected the thoroughly obscure Sandra Day O’Connor in 1981. O’Connor’s ambiguous record on abortion meant that the evangelical wing of the Republican Party regarded her with hostility; Jerry Falwell, then the leader of the Moral Majority and a key figure in Reagan’s election, said “good Christians” should be concerned about O’Connor. But at this point, Falwell and his colleagues did not yet control the Republican Party, much less the presidency, so Reagan ignored their complaints. And true to form, O’Connor in her first abortion cases, like
Thornburgh
, tread cautiously, voting to uphold restrictions but never committing to an outright reversal of
Roe
.

Reagan’s reelection emboldened the hard-core conservatives in his administration, especially when it came to selecting judges. This was largely because William French Smith, the bland corporate lawyer who was attorney general in Reagan’s first term, was replaced by Meese, who put transformation of the Supreme Court at the top of his agenda. Soon, Meese had his chance. In 1986, just days after the decision in
Thornburgh
, Burger resigned as chief justice. Reagan’s first move was an obvious one. During his fourteen years on the Court, William Rehnquist had grown from being an often solitary voice of dissent to the leader of the Court’s ascendant conservative wing. Just sixty-one years old, and popular with his colleagues, he was the clear choice to replace Burger as chief. But who, then, to put in Rehnquist’s seat?

Meese considered only two possibilities—Scalia or Bork, both waiting impatiently for the call in their nearby chambers at the D.C. Circuit. Both were real conservatives, not “squishes,” as young Federalist Society lawyers referred to Harlan, Stewart, and the other moderate conservatives. Bork had virtually invented originalism as an intellectual force, and he had been a vocal spokesman against almost every Supreme Court landmark of the past two decades—especially, of course,
Roe v. Wade
. Nine years younger, Scalia had a nearly identical ideological profile, if not quite as distinguished an intellectual pedigree. For his part, Reagan was taken by Scalia’s gruff charm and liked the fact that Scalia would be the first Italian American on the Court. The Democrats, who were a minority in the Senate, decided to concentrate on stopping Rehnquist from becoming chief justice and so gave Scalia a pass. He was confirmed unanimously, while Rehnquist won anyway by a 65–33 vote. At the same time, Bork was all but promised the next seat to come open.

Less than a year later, on June 26, 1987, Lewis Powell resigned, and Reagan promptly named Bork as his replacement. A great deal had changed, however, including the Senate itself, which was now led by a Democratic majority. Reagan’s popularity had slipped, thanks largely to the Iran-Contra affair, which had become public at the end of 1986. There was no Rehnquist nomination to distract from a fight over a new justice. And the seat at stake was not that of Burger, who had become a reliable conservative vote, but that of Powell, who was the swing justice of his day and the fifth vote for the majority in
Thornburgh
and other abortion rights cases. Bork himself was an ornery intellectual, with a scraggly beard and without any natural ethnic or religious political base. For Democrats, in short, he was an inviting target.

More than anything, the fight over Bork’s nomination illustrated that Meese and his allies had done a better job of persuading themselves of the new conservative agenda than they had of convincing the country at large. In truth, many of the Warren Court precedents—the ones Bork had attacked for so long—remained popular with the public and, consequently, in the Senate. By 1987, the
Miranda
warnings were deeply ingrained in the culture, not least because of their endless repetition on television police dramas; the word
privacy
may not have appeared in the Constitution but Bork’s criticism of that right—and his defense of Connecticut’s right to ban the sale of birth control—sounded extreme to modern ears.

Most of all, though, racial equality (if not affirmative action) had become a bedrock American principle, and Bork had simply backed the wrong side during the civil rights era. In 1963, he had written a notorious article for the
New Republic
in which he had assailed the pending Civil Rights Act. Forcing white barbers to accept black customers, Bork wrote, reflected “a principle of unsurpassed ugliness.” More than his views about privacy and abortion, it was Bork’s history on race that doomed his nomination. The key block of voters in the Senate were moderate Democrats from the South like Howell Heflin of Alabama, who were actually sympathetic to Bork’s cultural conservatism. But these senators were all elected with overwhelming black support—and they would not abide views that, fairly or not, sounded racist. Bork ultimately lost by a vote of 58–42.

Enraged by the attacks on Bork, Reagan had said he would nominate a replacement for Bork that the senators would “object to as much as the last one.” So Meese and his allies tried to foist a potentially even more conservative, and a much younger, nominee on the Senate, Douglas H. Ginsburg, a recent Reagan appointee to the D.C. Circuit. But Ginsburg’s nomination collapsed over a few tragicomic days, following revelations that the law-and-order judge had smoked marijuana as a professor at Harvard Law School.

Howard Baker now stepped into the process. A former senator who had been brought in as chief of staff to steady the White House after the Iran-Contra revelations, Baker had little interest in the ideological groundbreaking that Meese was leading at the Justice Department. Baker was an old-fashioned conservative who wanted a justice in his own mold, a believer in judicial restraint. With the White House reeling from multiple fiascos, Baker just wanted to pick someone who would be confirmed—a conservative, to be sure, but not necessarily someone who would please Meese and the other true believers. The call went out to Anthony M. Kennedy, a thoughtful and earnest judge on the Ninth Circuit from Sacramento. He was confirmed quickly and without incident.

George H. W. Bush served as a transitional figure between the old Republican Party and the new. He was born to the country club GOP of his father, the cautious and corporate senator from Connecticut, but the forty-first president was elected in 1988 courtesy of the evangelical and other hard-core conservatives who were increasingly dominating the party. In the Reagan years, figures like Jerry Falwell, Pat Robertson, and, later, James C. Dobson were content to be heard by the White House; but in the first Bush presidency, they wanted more. And the issues that meant the most to them—abortion, above all—were decided by the Supreme Court. They wanted their own justices.

On the Court, and in much else, Bush tried to finesse the demands of the far right. To win their support in the first place, Bush had sworn fealty to the new conservative orthodoxies, including opposition to
Roe v. Wade
, but it was clear that his heart was never in the cause. For this reason, then, Brennan’s resignation in July 1990 was for Bush more an annoyance than an opportunity. He was preoccupied with the sudden fall of Communism and had no stomach for a fight in the Democratic Senate over a Supreme Court nominee—especially about issues that meant little to him personally. A Yankee aristocrat, Bush surrounded himself with men in the same mold, like his White House counsel, C. Boyden Gray, and attorney general, Richard Thornburgh (who as governor of Pennsylvania was the defendant in the 1986 abortion case).

As his first choice for the Supreme Court, Bush chose yet another man with a background and temperament similar to his own—David H. Souter. The appointee had spent virtually his entire career in New Hampshire state government, where he had a nearly invisible public profile. (Thurgood Marshall, in his final cranky years on the Court, still spoke for many when he greeted the news with “Never heard of him.”) John Sununu, the White House chief of staff, promised conservatives that the appointment would be “a home run” for them, but Souter’s moderate testimony at his confirmation hearing suggested otherwise. Democrats, grateful that Bush had avoided a confrontational choice, raised few objections, and Souter was confirmed by a vote of 90–9.

Even before Souter’s record refuted Sununu’s prediction (as it surely did), conservatives registered their outrage at his appointment—and their demands for Bush’s next choice. Sununu promised that the president would fill the next vacancy with a nominee so conservative that there would be “a knock-down, drag-out, bloody-knuckles, grass-roots fight.” Thus, a year later, Clarence Thomas.

Marshall resigned on June 27, 1991, almost a year to the day after Brennan, and this time conservatives insisted that Bush appoint one of their own. By this point, with Brennan also gone, Marshall was the last full-throated liberal on the Court. His seat was especially precious to his political opponents, since only two members of the
Thornburgh
majority from 1986—Blackmun and Stevens—remained; the replacements for the other three would all be selected by presidents who publicly opposed
Roe v. Wade
. The decision appeared as good as overruled.

Thomas’s confirmation hearings, of course, turned into a malign carnival of accusation and counterclaim between the nominee and his one-time aide Anita Hill. But that sideshow obscured the larger significance of Thomas’s appointment. Even though the nominee was unusually reticent in answering the senators’ questions, it was easy to infer that the forty-three-year-old judge believed in what might be called the full Federalist Society agenda: that the justices should interpret the Constitution according to the original intent of the framers, that Congress had repeatedly passed laws that infringed on executive power and violated the Constitution, and that the crown jewels of liberal jurisprudence—from
Miranda
to
Roe
—should be overruled.

The scope and speed of the conservative success was remarkable. In just about a decade, conservatives had taken ideas from the fringes of intellectual respectability to an apparent majority on the Supreme Court. Thomas’s confirmation, on October 15, 1991, by a vote of 52–48, meant that Republican presidents had appointed eight of the nine justices—and Byron White, the lone Democrat, was more conservative, and a stronger opponent of
Roe
, than most of his colleagues. With Rehnquist, O’Connor, Scalia, Kennedy, Souter, and Thomas completing the roster, how could the conservative cause lose?

2

GOOD VERSUS EVIL

E
lections impose rituals of transition on the executive and legislative branches, but the judiciary, especially the Supreme Court, glides uninterrupted into the future. The justices who take their places from behind the red curtain on the first Monday in October are usually the same ones who appeared the year before, and they are likely to be there the following October as well. The Court is defined more by continuity than by change. But still, at some moments, even the hushed corridors of the Court crackle with anticipation of a new order. The fall of 1991 was such a moment.