The Nine [166]
The following year, the troika of O’Connor, Kennedy, and Souter saved Roe in their joint opinion in this case. (In the small world of conservative legal politics, John Roberts, then the deputy solicitor general, signed a brief at the time, which urged the justices to overrule Roe once and for all.) In drafting the portion of the Casey opinion striking down spousal notification, O’Connor had excoriated Alito’s logic, approach, and conclusions. Famously, O’Connor had called Alito’s view “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.”
Now that very judge was getting a promotion to O’Connor’s own seat—and largely because Alito had proved his conservative bona fides in that very case. As one White House lawyer said of the new nominee, “He was on the bench for fifteen years, and he never got a case wrong.”
O’Connor had announced her resignation in July of 2005 with every expectation that her replacement would be on the bench when the Court returned on the first Monday in October. Yet by Halloween, Bush was only then nominating another purported successor, with hearings and votes to follow over the next several months. O’Connor had genuinely hoped to be gone from the Court, but her protracted leave-taking did yield one side benefit—the chance to serve with John Roberts.
O’Connor loved Roberts. More than most of the justices, O’Connor cared about how the public regarded the Supreme Court, and she thought that Roberts’s good looks and charisma projected exactly the right image. Once, during one of the first arguments before the Roberts Court, a lightbulb exploded on the ceiling, prompting the court police to reach for their sidearms. “It’s a trick they play on new chief justices all the time,” Roberts quipped, calming the courtroom. O’Connor told that story for weeks, as an example of Roberts’s charm. She even wrote a fawning, faintly embarrassing story about Roberts for Time magazine. (“The stars must have been aligned that January morning in 1955 when John G. Roberts Jr. was born in Buffalo, N.Y., because almost everything thereafter led him straight to the Supreme Court of the U.S.”) But O’Connor was hardly, as some thought, a starstruck schoolgirl. At a meeting to plan a conference she was hosting, someone wondered if the chief justice might be asked to attend. With icy confidence, O’Connor said, “I’ll take care of John Roberts.”
For all of O’Connor’s fondness for Roberts, his appointment did not restrain the move to the left that characterized her jurisprudence and thus the Court’s. Indeed, as Rehnquist and O’Connor prepared to leave, there was a quality of a Prague Spring in the Court’s decisions—a last gasp of liberalism before a likely surge to the right. At the end of his tenure, Rehnquist was never more beloved, but also never more irrelevant.
Take, for example, the chief’s vaunted federalism revolution. After the justices struck down the federal law prohibiting the possession of guns near schools in Lopez, Rehnquist had apparently revived the Commerce Clause as a meaningful check on Congress’s authority to pass laws. The decision raised the possibility that the Court would really stop Congress from regulating local activity, something legislators had been doing without interference since the New Deal. In 2005, however, the justices took up a challenge to a California law that allowed state residents, with a doctor’s prescription, to cultivate and use marijuana. A woman named Angel McClary Raich challenged the federal law prohibiting possession of marijuana, arguing that Congress, under the Commerce Clause, could not prohibit the purely private, noncommercial transactions covered by the law.
In Gonzales v. Raich, six justices, including Kennedy and Scalia, said that Congress could indeed prohibit private, doctor-authorized