The Nine [22]
Kolbert’s strategy of forcing the Court to rule before the election was so transparent that it offended Chief Justice Rehnquist. He didn’t like the idea of the Court’s being used as a pawn in a political debate, and he didn’t care for litigants trying to game the Court’s schedule, either. So, the liberals on the Court believed, Rehnquist struck back. Using the powers of the chief justice, he simply kept Planned Parenthood v. Casey off the list of cert petitions that the justices would consider in their weekly conference. Rehnquist saw that the case was “relisted” and thus unresolved. Rehnquist was running out the clock. Harry Blackmun, whose entire tenure on the Court was coming down to a defense of his opinion in Roe, was furious as were his law clerks. In an unusual joint memorandum, they wrote, “We feel strongly that the case should be heard this spring…. If you believe that there are enough votes on the Court now to over-rule Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage.”
But how to do it? How could Blackmun and the prochoice justices force Casey onto the Court’s calendar? John Paul Stevens figured out the answer. Stevens’s reserved manner and penchant for writing solo dissents and concurrences sometimes gave the impression that his iconoclasm equaled a lack of influence. But his raw intelligence and knowledge of the Court’s rules—along with his willingness to stroke the bigger egos of his colleagues—gave him a crucial advantage. To break the logjam on Casey, Stevens threatened to write a dissenting opinion on Rehnquist’s decision to relist the case. (Blackmun said he would join Stevens in the public protest.) Relisting was usually a purely procedural matter utterly unfamiliar to the general public. As far as anyone could tell, no justice had ever written an opinion dissenting from a relisting. That was the point. Stevens knew that to write one now—and to accuse Rehnquist of stalling because of abortion politics in a presidential election—would create a sensation. Rehnquist, ever mindful of protecting the Court’s reputation as well as his own, backed down. He agreed to put the case on the calendar, and on January 21, 1992, the Court announced that it would hear the Casey appeal on April 22—the final day of argument for the term and the last chance to have the case decided by Election Day.
At the conference where the justices agreed to take Casey, David Souter pointed out that there was still one more matter to settle. The Court often adopted the “Questions Presented” in the brief of the appealing party, but Souter didn’t like the provocative one that Kolbert had submitted. In a memo to his colleagues, Souter said, “I suggested that the question be rephrased.” Souter did not want to acknowledge that the only choice in Casey was to make an up-or-down judgment on Roe. He wanted the flexibility to rule on the specifics of the Pennsylvania statute, without necessarily passing on the ultimate issue of Roe v. Wade. In his memo, Souter proposed “that a question be added specifically addressing the issue of precedent: What weight is due to considerations of stare decisis in evaluating the constitutional right to abortion?” Stare decisis, which means “to stand by that which is decided,” is the Latin term for the rule of precedent. Souter’s colleagues ultimately decided not to use his question, preferring instead to list each provision of the Pennsylvania law and ask whether each was constitutional. But Souter’s question still turned out to be the most important one in the case.
Few justices had rockier debuts than David Souter. He was sworn in on October 8, 1990, a week after the Court’s term started, and he never managed