The Nine [181]
The ISG report, which was released on December 6, 2006, began by asserting, “The situation in Iraq is grave and deteriorating.” O’Connor and her colleagues called for a new, largely diplomatic approach, leading to a gradual withdrawal of American military forces. President Bush ignored most of the group’s recommendations and instead ordered a “surge” of tens of thousands more American troops.
As with so much of the Bush presidency, O’Connor was appalled but not surprised by his rejection of the core of the ISG plan. Still, she was fatalistic, resigned to her limited role in events. At the news conference announcing the ISG’s findings, she noted that, like her duties at the Court, her role on the commission had concluded. “It really is out of our hands, having done what we did,” O’Connor said. “It’s up to you, frankly.”
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