The Nine [31]
As he often did, Scalia had to content himself with writing an alternately weary and angry dissent, where he would “respond to a few of the more outrageous arguments in today’s opinion, which it is beyond human nature to leave unanswered.” The issue in the case, he wrote, is “whether the power of a woman to abort her unborn child is a ‘liberty’…protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed.” (Clarence Thomas, who in his confirmation hearings just months earlier professed an open mind about Roe, joined in Scalia’s view that “Roe should undoubtedly be overruled.”)
On the morning of June 29, the last day of the term and the day the decision was to be announced, Kennedy was at his melodramatic best. He had invited Terry Carter, a reporter for California Lawyer magazine, to join him in his chambers before the justices took the bench. Kennedy has a coveted suite overlooking the Court’s marble staircase and plaza, and he stood staring down at the demonstrators who had gathered, waiting for the judgment in Casey to be rendered. “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line,” Kennedy mused, and then he asked the reporter to leave. He needed to “brood” before Court convened.
In the end, there was no doubt about the real winner on the Court in Casey. In a little more than a decade, O’Connor had succeeded in recasting Roe v. Wade on her own terms. Moreover, she had triumphed with a position that was shared by virtually none of her colleagues over that time. The liberals—like Brennan, Marshall, Blackmun, and Stevens—had wanted to preserve the original rule of Roe. The conservatives—like Rehnquist, White, Scalia, and Thomas—had wanted to do away with Roe altogether. Even O’Connor’s allies in Casey, Kennedy and Souter, had embraced her position more out of expediency to build a majority than out of enthusiasm for her view. But the point remained: her view was the law.
In practical terms, O’Connor’s victory meant the “trimester framework” was out, but she did adopt Blackmun’s recognition that the key point in pregnancy was viability. “We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy,” the troika wrote. “The concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” Then, in the sentence that sealed O’Connor’s triumph, they wrote, “In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.” A stray observation from a separate opinion by O’Connor had become the law of the land