The Nine [172]
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…”
The 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.