The Nine [28]
Even though the conference in Casey resulted in Rehnquist’s assigning himself the majority opinion, that didn’t end the matter as far as Souter was concerned. He hated to see the Court drawn so directly into a contested political issue. He believed, perhaps naively, that there was an island of “law” that could be insulated from the daily rush of events. It had been almost twenty years since Roe, and while the Court had allowed states to regulate and limit abortion during that time, there had been little doubt that the Constitution forbade a complete prohibition on abortion. Yet Rehnquist’s position at conference, and the opinion he was writing, would clearly permit a total ban.
O’Connor agreed with Souter. She had a less mystical attachment to the idea of precedent than Souter did, but her more political instincts led her in the same direction. The country had come to terms with Roe.
Something else was bothering O’Connor, too. She was appalled by the provision of the Pennsylvania law that required married women who were seeking abortions to inform their husbands. The court of appeals had struck down this provision, but Rehnquist proposed to uphold the view of the dissenting judge from the lower court. But that opinion—the one by Judge Samuel Alito—outraged O’Connor. She saw this provision as paternalism at best and sexism at worst. O’Connor had finely tuned radar for discrimination against women (something she sometimes lacked for bias against, say, African Americans), and she couldn’t abide the notion that the Court would uphold such a law.
So Souter and O’Connor were aligned on the idea that the Court should uphold what they came to call the “essence” of Roe, and they agreed that they should try to strike down the spousal notification provision. But they had only four votes for these positions—their own, plus those of Blackmun and Stevens, who were ready to reject the whole Pennsylvania law. They knew that there was only one place to go for a possible fifth vote—the chambers of Tony Kennedy.
Souter and Kennedy could hardly have approached the job of Supreme Court justice more differently. Souter avoided attention, loathed controversy, and disliked high-profile cases. Kennedy relished his public role and sought out the opinions that would make the newspapers. Seated at his keyboard typing furiously, Kennedy always labored most closely on the sections of opinions that might be quoted in the New York Times.
If Souter thought the proper role for a judge was as the (nearly) silent steward of judicial tradition, Kennedy had a much more romantic notion of a robed crusader for the rule of law. He liked to talk about the “poetry” of law and of great “teaching cases,” that is, opinions that instructed law students on timeless principles. Kennedy had been a judge for close to his whole professional life, since Gerald Ford made him the nation’s youngest member of the court of appeals in 1975, when he was thirty-nine. Through his twelve years on the Ninth Circuit, and even in summers while he was a justice, Kennedy continued teaching at the McGeorge School of Law in his hometown of Sacramento. He saw law as not just a collection of cases but a system that ought to be explainable to, and understood by, the next generation of lawyers.
Kennedy was also a serious Catholic, of pre–Vatican II vintage, who went to Mass every Sunday and prayed in the old-fashioned manner, hands clasped before him. Abortion repelled him. He fully adopted his church’s teachings on the subject. Once, before he joined the Court, he had called Roe the “Dred Scott of our time,” a reference to the infamous 1857 ruling that sanctioned slavery and helped spark the Civil War. But Kennedy knew the difference between his duties as a judge and his convictions as a Catholic. As he once wrote, “The hard fact is that sometimes we must make decisions we do not like.” Even though he and his church opposed abortion, that did not answer the question of whether the Constitution protected it.
Kennedy’s peculiar combination of traits—his earnestness and his