The Nine [165]
That was not Sandra O’Connor’s view. Shortly after she announced her departure from the Court, the president held a private dinner for her at the White House, where O’Connor was invited to prepare the guest list of about fifty people. After Bush’s toast, O’Connor offered a perfunctory thank-you. And as she was leaving, she sighed to the wife of a current justice, “Well, that wasn’t so bad.”
O’Connor had learned not to be shocked by anything Bush did, but the Alito nomination felt like a direct affront. O’Connor had been vaguely insulted by the Miers selection, as well. Regarding Miers, O’Connor asked acidly why Bush couldn’t find anyone with more stature than his own lawyer. In fairness, Miers probably had about as much stature as O’Connor herself did in 1981 as an obscure judge on a midlevel appeals court in Arizona. But by 2005, O’Connor had long since become accustomed to her status as the most powerful woman, and one of the most admired, in America.
Alito was a different story altogether. To a great extent, the judicial careers of Alito and O’Connor had been defined by the same case—where they had been on opposite sides.
Like John Roberts, Alito had been nominated for a federal appeals court judgeship during the first Bush administration. Unlike Roberts, Alito had been confirmed, taking his seat on the Third Circuit in 1990. The backgrounds of the two men were similar. Alito came from more modest circumstances—his father was a civil servant in New Jersey state government—but young Sam, like the future chief justice, had an Ivy League education, with Princeton followed by Yale Law. Then, like Roberts, Alito had been a star among the cadre of conservative young lawyers who accompanied Ronald Reagan to Washington. Alito spent four years in the solicitor general’s office, two more with the Office of Legal Counsel, and then, in 1987, became the U.S. attorney in his home state of New Jersey. Alito had just turned forty in 1990 when he received his lifetime appointment to the federal bench.
A year later, Alito had a chance to help his fellow judicial conservatives usher Roe v. Wade to its demise. The new judge participated in the epochal Casey lawsuit as part of the three-judge panel that reviewed the law. The Third Circuit panel upheld the law’s restrictions on abortion, such as its new rules on parental consent and waiting periods, almost in their entirety, but two of the three judges thought one provision about spousal notification went too far. Noting that “the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless,” the majority ruled that part of the law violated women’s rights.
Alito disagreed. He wrote his own opinion saying that he would have approved the Pennsylvania law in full and thus offered states a road map to restricting abortions as much as possible without outlawing the practice altogether. Since Pennsylvania wanted to limit the number of abortions, Alito said the requirement that wives notify their husbands of their plans was a reasonable means to that objective. Alito wrote in the same bland way that he spoke, and he observed, “The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived