The Nine (57 page)

At the Court, suddenly, it was up to Anthony Kennedy. Even more than O’Connor had over the previous decade, Kennedy now controlled the outcome of case after case. During the Rehnquist years, O’Connor and Kennedy had had idiosyncratic enough views that it wasn’t always clear whose vote would turn out to be dispositive. But the Roberts Court had four outspoken conservatives—Roberts, Scalia, Thomas, and Alito—and four liberals, at least by contemporary standards—Stevens, Souter, Ginsburg, and Breyer. Kennedy, always, was in the middle. And he loved it.

Kennedy had long had the most difficult judicial philosophy on the Court to describe. It was centered on his perception of the judge—and of himself—as a figure of drama and wisdom, more than any specific ideology. Kennedy believed that, at home and abroad, the rule of law was protected by enlightened individuals as much as by any identifiable approach to the law. In his two decades on the Court, Kennedy had come to have a usually predictable, if intellectually incoherent, collection of views. He believed what he believed, but it was hard to say why.

This was especially true on abortion. He had been the key figure in the
Casey
decision of 1992 and the author of the passages affirming the result in
Roe v. Wade
. (The opinion was jointly written with O’Connor and Souter, but only Kennedy’s portion was written in his distinctive purple prose.) “The liberty of the woman is at stake in a sense unique to the human condition and so unique to the law,” he wrote. “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”

Eight years after
Casey
, in 2000, Kennedy had changed his mind—dramatically. In
Stenberg v. Carhart
, Breyer had painstakingly demonstrated that Nebraska’s ban on so-called partial birth abortion had done just what Kennedy said a state could not do. But Kennedy wrote a theatrical dissent, asserting that “the political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential.” Adopting the language of the antiabortion movement, Kennedy called the doctors who performed the procedure “abortionists” and claimed that “medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn.” Kennedy’s hymn to women’s autonomy in 1992 turned into a paean to the life of the unborn in 2000.

After Bush’s election, Congress and the president bet that Kennedy’s view—not Breyer’s—would ultimately hold sway at the Court. Congress passed a federal law that was nearly identical to the Nebraska statute struck down by Breyer’s opinion. Like the one from Nebraska, the federal law banned the “partial birth” procedure, and it did not contain an exception that permitted the procedure to protect the health of the mother. Every appeals court that evaluated the new law found it unconstitutional, relying on Breyer’s
Stenberg
opinion and the absence of a health exception. But it was the new Roberts Court that heard the appeal of those decisions early in the 2006 term. The result gave a hint of what was to come.

Alito’s replacement of O’Connor flipped the result in the case, to a 5–4 ratification of the federal abortion law. Roberts assigned the case to Kennedy, who essentially turned his
Stenberg
dissent into a majority opinion—the sweetest kind of vindication that a Supreme Court justice can enjoy. The Court in the new case,
Gonzales v. Carhart
, did not formally overrule
Stenberg
but did so effectively. Breyer’s opinion—and the requirement that abortion prohibitions contain exceptions to protect the health of the woman—were now obsolete. As always, Kennedy had to turn the attention on himself; in his view, his ruling was not simply a ratification of an act of Congress but rather his gift to women as well. “While we find no reliable data to measure the phenomenon,” Kennedy wrote, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy found no such data, because, notwithstanding the claims of the antiabortion movement, no scientifically respectable support existed for this patronizing notion. Notably, too, foreign law (which had often pushed Kennedy to the left) was generally more restrictive of abortion rights than that of the United States, so on this subject, unlike gay rights or the death penalty, Kennedy mostly received reinforcement from his colleagues abroad.

Given Kennedy’s and Alito’s well-known views on abortion, no student of the Court could be surprised at the result in the case. Still, the expansiveness of Kennedy’s opinion (with its dismissive acknowledgments of the
Roe
and
Casey
precedents) left the four liberals on the Court shocked. And the year had just started.

In his confirmation hearing, Roberts had suggested the Court could increase the number of cases it heard, but the justices’ schedule in the fall of 2006 set them on pace to issue embarrassingly few opinions. Fearing criticism for their languid ways, the justices quickly filled their calendar for the set of arguments that began in January 2007. The year would still yield only sixty-eight decisions, a record low for the Court in modern times, but the back-loaded schedule made for a hectic spring. Indeed, the decisions came so fast that it took a while for even the justices themselves to recognize what was going on.

Ginsburg saw it first. Shy, awkward, isolated from her colleagues in her second-floor chambers, Ginsburg had never been a center of influence at the Court. She lacked Stevens’s seniority, Breyer’s bonhomie, Scalia’s bombast, or O’Connor’s and Kennedy’s swing-justice status. (Ginsburg had a particular aversion to Kennedy’s intellectual meanderings.) As it happened, two of the justices Ginsburg liked most—Rehnquist and O’Connor—left in quick succession, so she began the term lonelier than usual. But more than the others, Ginsburg was free of illusions about the supposedly apolitical nature of judging and made a clear-eyed assessment of the motives and consequences of her colleagues’ actions.

What Ginsburg saw was that the conservatives were taking over, and moving swiftly to consolidate their gains. The arguments hadn’t changed; the personnel had. Over the past few years, O’Connor had moved left so swiftly that she probably passed Breyer in that direction, and Rehnquist had become an institutionalist, committed to the stability of the Court more than to ideological change. (For example, the old chief, as he was now referred to, never embraced the
Miranda
decision, but he came to accept it.) Roberts and Alito were different, as the spring of 2007 quickly illustrated. As Ginsburg observed wryly in her dissent in the abortion case, the only reason for the result was that the Court “is differently composed than it was when we last considered a restrictive abortion regulation.”

As a minor consolation, the abortion case gave Ginsburg the chance to float her own distinctive view of the constitutional basis for abortion rights. Even before she became a judge, Ginsburg had not cared for Blackmun’s privacy rationale in
Roe v. Wade
. Rather, as she wrote in her dissent in
Gonzales v. Carhart
, “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Ginsburg believed abortion rights protected women’s equality, not their privacy, and she persuaded all of her fellow dissenters—Stevens, Souter, and Breyer—to sign on with her. But as the spring wore on, these four justices increasingly were speaking only to each other.

For years, Ginsburg had prided herself on her restraint in writing dissents, citing O’Connor and Souter as her fellow exemplars of politesse. In speeches and in private, she said she thought Scalia-style posturing and invective distracted the Court from its work. But on April 18, she read her fiery dissent in the abortion case from the bench, and on May 29, she denounced her colleagues in
Ledbetter v. Goodyear Tire & Rubber Company
, a case that seemed almost designed to infuriate her. While still a law school professor, Ginsburg had represented women in equal pay cases under Title VII, which bans discrimination in the workplace. That law requires individuals to file their cases within 180 days of “the alleged unlawful employment practice.” For years, the courts said that if a woman sued within 180 days of her last offending paycheck, she received compensation for the entire period she had suffered from discrimination. But in
Ledbetter
, the five conservatives ruled that plaintiffs could be paid for discrimination only within the six-month statute of limitations.

“The Court does not comprehend, or is indifferent to, the insidious way in which women can be the victims of pay discrimination,” she said. As Ginsburg knew better than anyone who had ever served on the Court, the majority’s ruling ignored the realities of actual litigation. She said that women can’t possibly know within 180 days that they are being paid less than men. “Ledbetter’s initial readiness to give her employer the benefit of the doubt should not preclude her from later seeking redress for the continuing payment to her of a salary depressed because of her sex,” Ginsburg continued. She concluded by imploring Congress to amend Title VII to make clear that the majority’s interpretation was wrong. Her current colleagues, Ginsburg suggested, were beyond help.

In his two years as chief, Roberts made his public goals clear. Decide more cases; achieve more unanimity; write narrower opinions—judicial minimalism. In 2007, Roberts failed on each one. Only 25 percent of the decisions were unanimous, down from 45 percent in his first year. (About a third of the opinions were unanimous in the Rehnquist years.) Even more striking, 33 percent of the cases in 2006 and 2007 were decided by votes of 5–4—a level of division unprecedented in the Court’s recent history.

So was Roberts’s second year a failure? To the contrary. The new chief’s stated goals dealt with procedural niceties. The president who nominated him (and those who pushed Bush to appoint him) cared above all about the substance of the Court’s decisions, and the changes were dramatic in precisely the way Roberts’s sponsors sought. As the spring of 2007 wore on, the pace of conservative change accelerated. The Court invalidated some of the restrictions on political advertising in the McCain-Feingold campaign finance bill, less than four years after the Court had approved practically the same rules. In a key church-state ruling, the Court made it much harder for citizens to challenge government activity that endorsed or supported religious activity. In a curious case from Alaska, the Court reduced the free-speech rights of students by approving the suspension of a high school senior who unfurled a banner that said, BONG HiTS 4 JESUS. All of these cases were 5–4, with Kennedy joining the conservatives.

Like Ginsburg, Souter generally declined to denounce his colleagues in his opinions, but one of the last cases in June undermined his restraint. In this case, the same majority rejected an appeal by a prisoner who had filed his case in advance of a deadline set by a federal district judge. Because the judge had misread the law and given the prisoner too much time to file—three extra days—the Court said that the case had to be thrown out. The dissenting opinion by the usually mild-mannered Souter (joined again by Stevens, Ginsburg, and Breyer) reflected true anguish. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch,” he wrote.

In several of these cases—on abortion, campaign finance, and church-state relations—the rulings of the majority directly contradicted Court precedents, but Roberts and his colleagues did not come out and say that the old cases had been overruled. This frustrated Scalia and Thomas, who wanted to see the Court make more explicit denunciations of its past. In a concurring opinion in the campaign finance case, Scalia chided Roberts for failing to administer the coup de grâce to the earlier ruling. “This faux judicial restraint is judicial obfuscation.”

Scalia had a point. Roberts had engaged in the pretense of minimalism—that is, of respecting the Court’s precedents—without actually doing so. Leaving cases like Breyer’s
Stenberg
opinion on the books without actually following their holdings amounted to a kind of sophistry, and Scalia, to his credit, believed in candor in opinion-writing. But Roberts coolly turned such complaints aside. The labels on the opinions may have been misleading, but their contents were not. By the spring of 2007, the Court was a more conservative institution, and so, it followed, were the rules of American life.