The Nine [182]
After Bush’s election, Congress and the president bet that Kennedy’s view—not Breyer’s—would ultimately hold sway at the Court. Congress passed a federal law that was nearly identical to the Nebraska statute struck down by Breyer’s opinion. Like the one from Nebraska, the federal law banned the “partial birth” procedure, and it did not contain an exception that permitted the procedure to protect the health of the mother. Every appeals court that evaluated the new law found it unconstitutional, relying on Breyer’s Stenberg opinion and the absence of a health exception. But it was the new Roberts Court that heard the appeal of those decisions early in the 2006 term. The result gave a hint of what was to come.
Alito’s replacement of O’Connor flipped the result in the case, to a 5–4 ratification of the federal abortion law. Roberts assigned the case to Kennedy, who essentially turned his Stenberg dissent into a majority opinion—the sweetest kind of vindication that a Supreme Court justice can enjoy. The Court in the new case, Gonzales v. Carhart, did not formally overrule Stenberg but did so effectively. Breyer’s opinion—and the requirement that abortion prohibitions contain exceptions to protect the health of the woman—were now obsolete. As always, Kennedy had to turn the attention on himself; in his view, his ruling was not simply a ratification of an act of Congress but rather his gift to women as well. “While we find no reliable data to measure the phenomenon,” Kennedy wrote, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy found no such data, because, notwithstanding the claims of the antiabortion movement, no scientifically respectable support existed for this patronizing notion. Notably, too, foreign law (which had often pushed Kennedy to the left) was generally more restrictive of abortion rights than that of the United States, so on this subject, unlike gay rights or the death penalty, Kennedy mostly received reinforcement from his colleagues abroad.
Given Kennedy’s and Alito’s well-known views on abortion, no student of the Court could be surprised at the result in the case. Still, the expansiveness of Kennedy’s opinion (with its dismissive acknowledgments of the Roe and Casey precedents) left the four liberals on the Court shocked. And the year had just started.
In his confirmation hearing, Roberts had suggested the Court could increase the number of cases it heard, but the justices’ schedule in the fall of 2006 set them on pace to issue embarrassingly few opinions. Fearing criticism for their languid ways, the justices quickly filled their calendar for the set of arguments that began in January 2007. The year would still yield only sixty-eight decisions, a record low for the Court in modern times, but the back-loaded schedule made for a hectic spring. Indeed, the decisions came so fast that it took a while for even the justices themselves to recognize what was going on.
Ginsburg saw it first. Shy, awkward, isolated from her colleagues in her second-floor chambers, Ginsburg had never been a center of influence at the Court. She lacked Stevens’s seniority, Breyer’s bonhomie, Scalia’s bombast, or O’Connor’s and Kennedy’s swing-justice status. (Ginsburg had a particular aversion to Kennedy’s intellectual meanderings.) As it happened, two of the justices Ginsburg liked most—Rehnquist and O’Connor—left in quick succession, so she began the term lonelier than usual. But more than the others, Ginsburg was free of illusions about the supposedly apolitical nature of judging and made a clear-eyed assessment of the motives and consequences of her colleagues’ actions.
What Ginsburg saw was that the conservatives were taking over, and moving swiftly to consolidate their gains. The arguments