The Nine [29]
So Kennedy signed on with Souter and O’Connor. His was the most dramatic switch of the three, because it had been only three years since he voted with Rehnquist in Webster, an opinion that advocated overruling Roe. Even more dramatically, Kennedy had clearly supported Rehnquist at the conference in Casey. No vote is ever final on the Court until an opinion is announced, but changes from conference votes are still unusual, especially when, as in Casey, it was Kennedy’s vote that allowed Rehnquist to start drafting his majority opinion. Nonetheless, in early May, Souter, O’Connor, and Kennedy decided to work together secretly on Casey, each of the justices telling only a single law clerk in their chambers that they were planning a joint opinion.
Unaware of these machinations, the chief justice continued drafting what he expected would be the majority opinion. Writing with typical dispatch, Rehnquist circulated a draft on May 27, just a little more than a month after the argument. According to the chief, the Court would uphold all of the provisions of the Pennsylvania law. Rehnquist wrote, “The Court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a ‘fundamental right.’ ” If the chief’s opinion won the support of a majority of justices, states would be free to regulate or even ban abortion altogether. As Blackmun wrote in the margin of the first page of Rehnquist’s draft: “Wow! Pretty extreme!”
The “troika,” as they would later become known, agreed with Blackmun’s view of the chief’s draft opinion. The way Rehnquist summarily dismissed Roe eliminated any chance that he might draw Souter, O’Connor, or Kennedy back into a majority with him. In their secret collaboration, Kennedy had agreed to write the opening section of the opinion, where they announced that they would preserve Roe. Souter would write next, about the importance of stare decisis, and O’Connor would write the final section, explaining why the spousal notification provision of the Pennsylvania law had to be struck down. On May 29, two days after Rehnquist circulated his draft, Kennedy sent a handwritten note to Blackmun:
Dear Harry,
I need to see you as soon as you have a few free minutes. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.
If today is not convenient, I will be here tomorrow. Please give me a call when you are free.
Yours, Tony
At their meeting the following day, Blackmun saw how anguished Kennedy was about his role in preserving the right to choose abortion. Because of Roe, no justice had received more death threats than Blackmun, and he comforted Kennedy by telling him the mail sometimes brought pleasant surprises, too. Blackmun showed his junior colleague a letter from a nun, of all people, praising him for allowing a desperate woman to get an abortion. After Kennedy left, the always meticulous Blackmun wrote himself a simple note on a piece of pink Supreme Court memo paper: “Roe sound.” As Linda Greenhouse observed in her book about Blackmun, “The choice of this slightly old-fashioned word was significant. To a lawyer, ‘sound’ conveys not just survival but correctness and legitimacy.” Roe—the right to choose—was sound.
Souter, O’Connor, and Kennedy circulated the result of their secret collaboration—a draft opinion of sixty-one pages—on June 3. Rehnquist took the news with equanimity. Antonin Scalia did not.
Roe represented everything Scalia most despised, and still despises, about modern jurisprudence—and the modern world. He had defined his career as a justice by his insistent and unwavering demand that the case be overturned.