The Nine [25]
“Mr. Chief Justice, and may it please the Court. Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case,” Kolbert began. “Since this Court’s decision in Roe v. Wade, a generation of American women have come of age secure in the knowledge that the Constitution provides the highest level of protection for their child-bearing decisions.”
That was as long as the Court allowed most advocates to speak without jumping in with questions. But there was only silence from the justices, so Kolbert kept going. “This landmark decision, which necessarily and logically flows from a century of this Court’s jurisprudence, not only protects rights of bodily integrity and autonomy but has enabled millions of women to participate fully and equally in society. The genius of Roe and the Constitution is that it fully protects rights of fundamental importance. Government may not chip away at fundamental rights, nor make them selectively available only to the most privileged women.”
More silence from the bench. A murmur began in the audience, a very knowledgeable group, especially in a big case like this one. Why weren’t they asking any questions? Why were they paralyzed?
Three minutes, four minutes, still no questions from the justices, and no retreat from Kolbert. Her strategy was the same as the one in her brief—go for broke, all or nothing, overturn the Pennsylvania regulations in their entirety or overturn Roe v. Wade. “Our nation’s history and tradition also respects the autonomy of individuals to make life choices consistent with their own moral and conscientious beliefs,” Kolbert said. “Our Constitution has long recognized an individual’s right to make private and intimate decisions about marriage and family life, the upbringing of children, the ability to use contraception. The decision to terminate a pregnancy or to carry it to term is no different in kind.” Finally, after eight minutes, O’Connor spoke up, in her characteristic singsong earnestness, reminiscent of a nursery school teacher.
“Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe [v.] Wade in all its aspects,” she said. “Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?”
Kolbert replied, in so many words, no. She was not going to concede that the individual restrictions could be separated from the larger question of preserving Roe. Kennedy tried, too—“You have a number of specific provisions here that I think you should address”—but Kolbert wouldn’t yield. To her, ruling on Casey meant ruling on Roe.
At the conference of the justices that week, the result was muddled. Seven justices—Rehnquist, White, O’Connor, Scalia, Kennedy, Souter, and Thomas—wanted to uphold most of Pennsylvania’s restrictions on abortion. Only Stevens and Blackmun wanted to strike them down. But there were tensions within the majority. Rehnquist, White, and Scalia were on record wanting to overrule Roe, and Thomas (his confirmation uncertainty notwithstanding) wanted to join them. But there was not yet a fifth vote to overturn Roe outright. Neither O’Connor, Kennedy, nor Souter was ready to go that far. So at the end of the conference, Rehnquist assigned Casey to himself, intending to write an opinion that allowed states almost a free hand in regulating abortion. As a practical matter, Roe would be overturned, but not in so many words.
Then, early the following week, Souter decided to pay a visit to O’Connor.
4
COLLISION COURSE
Outsiders tend to be surprised by how rarely Supreme Court justices speak to each other, one-on-one. Under Rehnquist, the nine spent a good deal of time together as a group. Argument days, most Mondays and Wednesdays when they were in session, were preceded by the traditional thirty-six handshakes, each justice with every other, and they had lunch