The Oath (11 page)

Even in the midsixties, Connecticut rarely enforced its legal ban on the sale or use of birth control, which stated, “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year.” Still, the executive director of the Planned Parenthood League of the state, seeking to create a test case, arranged to be arrested for violating this law by giving birth control advice to married couples. In 1965, the Supreme Court overturned the conviction by a vote of 7–2. The justices produced six different opinions, but Justice William O. Douglas spoke for the majority.

“This law operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation,” Douglas wrote. There was clearly something wrong with the Connecticut law, but what? In his characteristically terse style, Douglas appeared to be searching for a rationale. The law was not a violation of due process of law or freedom of speech, he said, though clearly the values underlying those provisions were implicated. He also believed the case was not really about freedom of association either, though that too was involved. Rather, Douglas concluded, it wasn’t a single provision of the Constitution that was violated by this law. Instead, he wrote, in one of the most famous (and infamous) passages in Supreme Court history: “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” The Connecticut law interfered with this zone of privacy and thus had to be struck down. (McCain mocked this passage in his campaign speech about the courts.)

Roe
relied on Douglas’s
Griswold
opinion to establish a woman’s right to choose abortion. In
Roe
, Justice Harry Blackmun wrote for the Court, “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as [1891], the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” This right of privacy, Blackmun went on, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In Blackmun’s opinion, though, the abortion decision was as much about the physician as about the woman. “The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated,” he wrote. “The abortion decision in all its aspects is
inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” (Blackmun had once been general counsel to the Mayo Clinic, and he maintained a reverence for doctors throughout his tenure on the Court.)

Liberals have long regarded the right to privacy, and Blackmun’s opinion, as a touchstone of American liberty—a vindication of what Justice Louis Brandeis called “the right to be let alone—the most comprehensive of rights and
the right most valued by civilized men.” Conservatives have always reviled
Roe
as the ultimate power grab by a liberal judiciary. As Robert Bork summed up the conservative critique of Roe, the right to privacy “does not come out of the Constitution but is forced into it.… This is
not legal reasoning but fiat.”

Ginsburg favored abortion rights, but she departed from the liberal orthodoxy in her distaste for the privacy rationale undergirding
Roe v. Wade
. She believed abortion rights were about equality, not privacy. Ginsburg regarded the denial of abortion rights to women as just another form of the broader denial of equal rights. As she said in 1984, the right to abortion places in the balance “a woman’s autonomous charge of her full life’s course—
her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.” Ginsburg also resented Blackmun’s patronizing emphasis on the rights of doctors, rather than of women. As she put it in an interview later, “It’s the woman in consultation with her doctor. So the view you get is
the tall doctor and the little woman who needs him.”

Against this backdrop Ginsburg—and the Court—weighed the abortion case of 2006.

The specific issue was not a new one. Indeed, the Court had considered a nearly identical case just a few years earlier.

In the modern post
-Roe
era, the anti-abortion movement focused its efforts on limiting what it called “partial birth” abortion. The medical details were complex, but the movement had seized on a procedure, which usually took place late in a pregnancy, that many ordinary people regarded as gruesome. These kinds of abortions were rare and often undertaken because the woman’s health or life was in danger. But there was no denying the shock value of the details.

Still, in the 2000 case of
Stenberg v. Carhart
, the Supreme Court
struck down a Nebraska “partial birth” abortion law by a vote of 5–4. As ever, O’Connor provided the swing vote, concluding that the law was unconstitutional because it failed to include an exception allowing the procedure to be used to protect the health of the mother. Breyer wrote the opinion for the Court in 2000, the highest-profile majority opinion of his career.

But when George W. Bush took office the next year, along with a Republican Congress, one of his first priorities was to sign the Partial-Birth Abortion Ban Act, which was almost identical to the Nebraska law that the Court had just struck down. It was immediately challenged in Court in a case called
Gonzales v. Carhart
. (The 2000 and 2006 cases had the same plaintiff, LeRoy H. Carhart, who was one of the few doctors willing to admit publicly that he performed the partial-birth procedures. George Tiller, another doctor who performed such abortions, was murdered by an anti-abortion terrorist in 2009.)

There was, of course, one critical change in the Court between 2000 and 2006: Alito had replaced O’Connor. In this case, as in many others, the switch made all the difference and the Court now voted 5–4 to uphold the federal law. (Alito said nothing during the oral argument, but it wasn’t hard to guess how he would vote; his wife and family doctor, who were in the audience, scowled and shook their heads as the lawyer for Planned Parenthood argued her case.) Roberts assigned the opinion in
Gonzales v. Carhart
to Kennedy.

Kennedy had a complex history in abortion cases. Reagan nominated Kennedy in 1987, following the Senate’s rejection of Robert Bork. There had been no doubt that Bork would have joined the anti
-Roe
forces, but Kennedy’s history and his confirmation testimony were opaque about abortion. In 1992, Kennedy joined with O’Connor and Souter in the
Casey
decision to preserve what they called the “essential holding” of
Roe v. Wade
. (Their unsigned collaborative opinion was joined by Blackmun and Stevens to give them a majority.) In subsequent years, though, Kennedy had been moving to the anti-abortion side of the Court, voting to uphold various restrictions on the practice. In 2000, Kennedy dissented vigorously in the first
Carhart
case. Now, six years later, Roberts gave Kennedy the chance to turn that dissent into a majority opinion, which was released in April 2007.

Kennedy made the most of the opportunity. He discussed the abortion procedures in great and gory detail. (“Rotating the fetus as it is being pulled decreases the odds of dismemberment.… The doctor
opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out.”) He said almost nothing about the kind of medical conditions that would prompt a woman to subject herself to such procedures. Overall, Kennedy’s rhetoric was straight out of the anti-abortion movement. He referred to the fetus as a “baby” and a “child.” The obstetricians and gynecologists who performed the procedures were “abortion doctors.” The state “has respect for human life at all stages in the pregnancy” and a “legitimate and substantial interest in preserving and promoting fetal life.” Kennedy’s opinion was a vivid demonstration of the significance of Alito’s appointment—and of the dedication of the conservatives on the Court to change. The addition of one new justice posed a clear threat to
Roe
,
Casey
, and abortion rights generally.

Ginsburg had little patience for Kennedy in the best of circumstances. The Californian’s airy and vague rhetoric about dignity and the like offended the practical New Yorker. (Ginsburg agreed with Kennedy on the merits of cases more often than she did with Rehnquist, but she had a temperamental affinity for the late chief’s plainspoken, forthright opinions.) There was one passage in Kennedy’s
Carhart
opinion that offended Ginsburg as much as anything she had seen during her tenure on the Court. Kennedy wrote:

Ginsburg had devoted her life to fighting this kind of patronizing reasoning. Appendix E consisted almost entirely of rules written by men who thought they knew what was best for women. Kennedy’s opinion belonged to that lamentable tradition.

Ginsburg prided herself on her professional tone; no Scalia-style hysterics for her. Her model and partner in this decorous approach was David Souter, who also resisted the use of invective in even the most controversial cases. But in
Carhart
, Ginsburg did not, or could not, restrain herself. In her dissent, she wrote that Kennedy’s opinion rested
on “ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.”

Ginsburg also took the opportunity in her
Carhart
dissent to clear up some of her lingering dissatisfactions with
Roe
itself. Her long-standing preference was for equality rather than privacy as the governing rationale. Challenges to abortion laws, she wrote, “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.” Harry Blackmun notwithstanding, abortion rights belonged to women, not their doctors. Later cases, she noted, “described more precisely than did
Roe
v.
Wade
the impact of abortion restrictions on women’s liberty.
Roe
’s focus was in considerable measure on ‘vindicat[ing] the right of the physician to administer medical treatment according to his professional judgment.’ ” Finally, she took on Kennedy’s claim that, in her words, “having an abortion is any more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have.” Kennedy’s assertion was based on junk science, she said, proving her point with a four-hundred-word footnote summarizing the actual scholarly research about women who had had abortions. Ginsburg was appalled by the Court’s decision—and she wanted everyone to know it.

In their first decade or so, Supreme Court justices usually announced their rulings in the manner of their British forebearers, with each justice presenting his view of each case. In this area as in so many others of the Court’s history, Chief Justice John Marshall, who presided from 1801 to 1835, created a new and enduring tradition. Under Marshall, the Court began to render opinions that represented the collective judgment of the Court. In his day, Marshall wrote most of the opinions himself, but there were occasions when one or more of his colleagues disagreed with him. These disputes, rare though they were, gave rise to the tradition of dissenting opinions.

Outsiders (and sometimes the justices themselves) often asked about dissents: why bother? There was no higher court to persuade. What was the point of writing down the losing side of an argument? The most famous answer to this question came from Chief Justice Charles Evans Hughes, who wrote, “A dissent in a Court of last resort is an
appeal … to the intelligence of a future day, when a later decision may possibly correct the error into which the
dissenting judge believes the court to have been betrayed.” Dissenting opinions also offered reasons to the public, who, in a democracy, were the ultimate judges of the political branches of government. Many justices cared deeply about how their work was perceived beyond the walls of the Supreme Court building, and dissenting opinions shaped perceptions of the winners and the losers almost as much as the words of the majority.

It was true, too, that some of the most famous dissenting opinions were ultimately vindicated, either by the course of events or by future justices. Dissenting in the infamous Dred Scott case of 1857, Benjamin Curtis anticipated the Civil War; the first Justice John Marshall Harlan, dissenting in
Plessy v. Ferguson
in 1896, presaged the ruling in
Brown v. Board of Education
fifty-eight years later; Louis Brandeis and Oliver Wendell Holmes protested the Court’s restrictions on free speech in the repressive period after World War I. Later the Court explicitly embraced their understanding of the First Amendment. These were exceptions. Most dissents remained just that.

But the justices kept writing them, and sometimes did more to call attention to the minority view. When the justices finally moved from their cramped quarters in the Capitol to their commodious new building across First Street, in 1935, their new courtroom looked more like a theater. Some justices began playing to the audiences and, on major occasions, read their dissenting opinions out loud. Intentionally or not, justices sometimes also ad-libbed additions to their formal opinions. When, for instance, James McReynolds announced his dissent from the Court’s approval of FDR’s decision to take the government off the gold standard in 1935, he reportedly uttered a line not found in his written opinion: “
The Constitution, as we have known it, is gone.”