The Nine [32]
The final section of the joint opinion, the one drafted by O’Connor alone, drew the least attention but offered the greatest clues about the future of the Court. The Pennsylvania law provided that “no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion.” In his opinion on the Third Circuit, Alito approved this provision, but O’Connor laid into it, sounding more like a women’s studies professor than a Goldwater Republican. She wrote that “common sense” suggested that “in well functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion…. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”
To O’Connor, in this case and henceforth, the crucial issue was women’s autonomy and health. She said that Alito’s view was “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.” It was O’Connor’s Court now, responsive above all to the legal philosophy and political savvy of the former state senator from Arizona.
5
BIG HEART
Early in the third week in March of 1993, Byron White called to invite Ron Klain to breakfast at the Court on Friday, the nineteenth. On the surface, there was nothing especially unusual about White’s summons. Klain had clerked for White for two years in the late 1980s and gone on to start a career in law and politics—as chief counsel for the Democrats on the Senate Judiciary Committee and then as an associate counsel for the new president, Bill Clinton. As it happened, Klain’s portfolio included Clinton’s judicial appointments.
White liked talking to Klain because the justice still fancied himself a political insider—and a Democrat, even if few others did. Long ago, White had been a dashing figure of John F. Kennedy’s New Frontier. When he was appointed to the Court in 1962, the Senate was giving little scrutiny to Supreme Court nominees, and his hearing before the Judiciary Committee lasted fifteen minutes and consisted of eight questions. He had never been a judge, had spent most of his career in private law practice in Colorado, and was far better known for his exploits as a college and professional football star than for his brief tenure as Kennedy’s deputy attorney general. By far the best-known fact about White was his nickname, Whizzer, which he hated. At the time of his appointment, White’s views on constitutional issues were a mystery.
In three decades on the Court, White established himself as a thoroughgoing conservative. He dissented from most of the last round of famous decisions in the Warren Court—like Miranda v. Arizona—and he became a leading voice on the right through the Burger and Rehnquist years. He had dissented from Roe in 1973, wrote a scathingly dismissive opinion about gay rights in Bowers v. Hardwick in 1986, and generally voted for the government over the individual. (On race and the