The Nine (54 page)

In an opinion by Roberts, the Court unanimously upheld the Solomon Amendment and rejected the claim by the law professors. In short, Roberts said that he who pays the piper calls the tune. “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept,” he wrote. The case had nothing to do with free speech, he continued, arguing that the Solomon Amendment “neither limits what law schools may say nor requires them to say anything.?…As a general matter, the Solomon Amendment regulates conduct, not speech.” In this way, Roberts diffused a potentially incendiary controversy.

The same was true for his first encounter with abortion. In 2003, New Hampshire passed a law prohibiting physicians from performing an abortion on a minor without giving one of her parents at least forty-eight hours’ notice. Physicians could dispense with the notification requirement if they could certify that the abortion was “necessary to prevent the minor’s death.” The main issue in the case was whether the state also had to establish an exception to the notice requirement if the minor’s health was at risk. For decades, the Court had insisted on “health” exceptions in abortion laws, and for just as long, abortion opponents had argued that such exceptions were so broad that they amounted to no restriction at all. The case concerned a fairly narrow corner of the law, but there is no such thing as an unimportant abortion ruling at the Supreme Court, and the case seemed likely to offer the first clues as to how the Roberts Court would deal with the most fraught topic on its agenda.

But Roberts, with the unanimous agreement of his colleagues, managed to avoid a major confrontation. The lower courts had invalidated the entire New Hampshire law when they could have just evaluated the contested portion; the justices thus resolved the case on procedural grounds, sending it back for further review (and, perhaps, some sort of compromise settlement). This kind of opinion—avoiding a hot controversy if at all possible—was a classic O’Connor strategy, and it was fitting that Roberts assigned her the opinion.

Ayotte v. Planned Parenthood of Northern New England
would be the final majority opinion of Sandra O’Connor’s quarter century as a justice—and an apt summary of her extraordinary influence on the Court and the nation. “We do not revisit our abortion precedents today,” she began, but she did take the time to offer a summary of that law. “We have long upheld state parental involvement statutes like the Act before us, and we cast no doubt on those holdings today,” she wrote. As for laws regulating abortions themselves, O’Connor said that they were to be tested under the “undue burden standard.” She went on, “New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are ‘necessary, in appropriate medical judgment, for preservation of the life or health of the mother.’ ” The internal quotation came from the
Casey
decision, which was in turn quoting
Roe v. Wade
.

The dry legal language obscured that this brief opinion amounted to a story of remarkable personal triumph for O’Connor. Like most other Americans, O’Connor believed in parental notification laws. Like most others, she also believed that not all abortions should be banned. And she thought, again like most of her fellow citizens, that abortion restrictions should not risk “the life or health of the mother.” When she joined the Court in 1981, not one other justice believed that abortion laws should be tested under an “undue burden standard,” but O’Connor had invented that test and over time persuaded a majority of her colleagues to agree with her. She had single-handedly remade the law in the most controversial area of Supreme Court jurisprudence. And she had done it in a way that both reflected and satisfied the wishes of most Americans. No other woman in United States history, and very few men, made such an enormous impact on their country.

O’Connor read
Ayotte
from the bench on January 18, 2006. By that point, though, the longevity of her influence seemed ever more open to question.

24

“I AM AND ALWAYS HAVE BEEN…”

T
he lawyers in the Bush White House who researched possible nominees to the Supreme Court operated according to strict rules. Because they did not want the nature of their inquiries to be widely known—and because they had so many people to investigate—they examined only the public record. For sitting judges, they looked primarily at their published opinions and also ran the candidates’ names through databases like Nexis and Google. The small group of associate counsels did not, however, have the time or resources to search through the National Archives, so it was journalists who discovered the key document about Samuel Alito, two weeks after Bush announced his selection.

Alito had joined the staff of the solicitor general as a career lawyer in 1981, but he quickly established himself as an enthusiastic supporter of the Reagan administration. In time, he sought to move up to a position as deputy assistant attorney general in the Office of Legal Counsel, the official constitutional adviser to the president and the unofficial ideological command center during the Reagan years. The job was a political appointment, so Alito had to be vetted by the White House. The application letter that Alito wrote for the job, the document found in the archives, proved to be an easy-to-decipher Rosetta Stone about his political and judicial philosophy.

Alito’s letter of November 15, 1985, began, “I am and always have been a conservative,” and removed any mystery about the kind of justice he would be. But the treatment of Alito’s letter in his confirmation hearings illustrated other truths about the contemporary confirmation process, the difference between Democrats and Republicans, and the future of the Court.

When Roberts testified at his own hearing, he was asked about his authorship of the brief advocating the reversal of
Roe v. Wade
. The future chief justice parried the inquiry, noting that he was then a lawyer representing a client, President George H. W. Bush, whose opposition to
Roe
was a matter of public record. Roberts asserted that the position in the brief did not necessarily reflect his own views about
Roe
, which he declined to reveal. Alito, in contrast, had written in his 1985 application that “it has been an honor and a source of personal satisfaction to me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”

So there was no mystery about Alito’s personal beliefs. Indeed, the letter showed that his judicial philosophy, at least in 1985, was well to the right of where, say, even Rehnquist was in 2005. Alito had also written, “In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.” The major Warren Court decisions in these subjects were those creating the
Miranda
warning, banning government-sponsored prayer in schools, and calling for one person, one vote in legislative districting. Even conservatives like Rehnquist came to terms with these rulings, but such was Alito’s passion for the conservative cause in the Reagan years that he apparently found them too liberal. As a lower court judge for the past fifteen years, Alito had no right to overturn these precedents, but he gave every indication that he would if he could.

Despite Alito’s potentially extreme views, simple arithmetic made his confirmation nearly a foregone conclusion. As soon as he was nominated, it became clear that he would survive the most important test for any Bush nominee to the Court—what might be called the Republican primary, that is, the approval of the conservative base.

The full Senate, by comparison, would be easy for Alito. There were fifty-five Republicans, and all but a handful—Lincoln Chafee of Rhode Island, and Susan Collins and Olympia Snowe of Maine—would be certain to vote for a true conservative like him. (A moderate in other circumstances, Arlen Specter could not oppose a Bush nominee to the Supreme Court and keep his beloved chairmanship of the Judiciary Committee.) From the moment of Alito’s nomination, the only hope for Democrats to stop his confirmation would be to establish and hold a filibuster of forty or more senators.

No Supreme Court nominee in history who had the support of a majority of senators had ever been stopped by a filibuster. (In 1968, there was a filibuster against Lyndon Johnson’s nomination of Abe Fortas to be chief justice, but it was not clear that Fortas had the votes to be confirmed.) So a Democratic filibuster against Alito was unlikely, and if one had been attempted, it might have led to the elimination of the tactic for good. In advance of the debate, Bill Frist, the majority leader, was clearly itching for a fight so that he could invoke the “nuclear option” and do away with filibusters on judicial nominees once and for all. Such a move would have ingratiated Frist with the Republican base, whose support the Tennessee senator was then courting for a possible presidential run in 2008. (He later declined to run.) In short, the odds were always stacked against a Democratic attempt to stop Alito’s confirmation; there were simply too many votes on the other side.

Still, the reaction to his nomination among Democrats showed just how much times had changed since the Bork hearings. It was only a year since Specter thought the conventional wisdom was that nobody could be confirmed unless he or she supported
Roe v. Wade
. Samuel Alito and the Republican Senate were about to provide a specific refutation.

The Democratic Party had a base, too, and the pro–abortion rights position was just as important to these activists as the opposing view was to the conservatives. When it came to judicial nominations, the liberal position was embodied by People for the American Way, a well-funded, politically savvy advocacy group founded by Norman Lear, the television producer, and led by Ralph G. Neas, an architect of Bork’s defeat in 1987. PFAW had a membership list of 750,000 activists, and as soon as Alito was nominated, Neas set out to mobilize them against a man he called the embodiment of “the radical right legal movement.” Certain that Alito would lead the fight to overturn
Roe
and a host of other civil rights rulings, Neas insisted that he had to be stopped.

Neas’s protest drew a tepid response. Unlike Miers, Alito had a network of friends and former law clerks (some of them Democrats) who knew him well and were only too happy to give public testimonials in his behalf. In addition, Alito’s impeccable credentials—from his sterling academic record to fifteen years on the federal appellate bench—made it impossible for anyone to oppose him on the ground of his qualifications. (The American Bar Association screening panel unanimously found Alito “well-qualified.”) The only reason to vote against him—and it was the focus of PFAW’s effort—was that he was simply too conservative and would vote to overturn
Roe v. Wade
. But on this point the difference between the parties was manifest.

The Democratic base did not control its members the way the conservatives controlled the GOP. Moderate Democrats tended toward the center and so were unwilling to take up a filibuster. Alito’s handlers in the White House immediately sent him to meet with members of the Gang of 14, and the visits had the desired effect. Moderate Democrats like Ben Nelson of Nebraska responded to Alito neutrally to positively, and Republicans like Mike DeWine of Ohio and Lindsey Graham of South Carolina said they would invoke the nuclear option if the Democrats tried to filibuster. As DeWine observed accurately, “This nominee should not have shocked anyone. George Bush won the election.” By the time Alito’s public testimony began on January 9, 2006, the possibility of a filibuster had faded; his confirmation appeared all but assured.

“During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I might begin this afternoon by sharing that story,” Alito said when he first addressed the senators. “The story goes as follows. This was a lawyer who had never argued a case before the Court before. And when the argument began, one of the justices said, ‘How did you get here?’ meaning how had his case worked its way up through the court system. But the lawyer was rather nervous and he took the question literally and he said—and this was some years ago—he said, ‘I came here on the Baltimore and Ohio Railroad.’ This story has come to my mind in recent weeks because I have often asked myself, ‘How in the world did I get here?’ ” This leaden tale, which was greeted with mystified stares, turned out to be a fair augury of the testimony that followed. Alito was a dreadful witness in his own behalf—charmless, evasive, and unpersuasive.