The Nine [76]
Dissenting opinions are not assigned in the same formal way that majority opinions are, but the senior justice in the minority usually coordinates the opinions on his side. In Stenberg, Rehnquist deferred to Thomas for the main opinion on their side, giving him a rare opportunity to write in an important case, if only in dissent. Thomas’s clerk dueled with Breyer’s in pressing the Supreme Court library to track down obscure medical periodicals to bolster their positions. When Thomas was just about finished, Kennedy appeared without warning with a lengthy and passionate dissent of his own. Kennedy felt betrayed by O’Connor and Souter, his fellow members of the Casey troika. He thought that case had delineated the outer limits of abortion rights, but now the Court was, in Kennedy’s view, going much farther. He wrote that Nebraska “chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman’s autonomous right of choice as reaffirmed in Casey.”
Kennedy’s dissent set off an uncharacteristic round of pettiness at the Court. His analysis was so much more detailed and thoughtful than Thomas’s that Breyer, in responding, referred to Kennedy’s opinion as “the dissent.” Wait, Thomas objected, Rehnquist had assigned his opinion as “the dissent.” Which one was “the” dissent? Neither Kennedy nor Thomas would yield. Breyer didn’t know what to do. So the three justices—Kennedy, Thomas, and Breyer—visited Rehnquist to resolve the impasse. It was a measure of their respect for the chief that they all deferred to him on a matter like this one, and Rehnquist did come up with a Solomonic solution. Breyer would refer to the “Kennedy dissent” and the “Thomas dissent,” and neither one as “the” dissent. Meanwhile, Scalia wrote his own dissent, which surpassed even his own high standards for invective and hysteria. It began, “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.” (Korematsu authorized the military exclusion of Japanese American citizens from the West Coast during World War II; Dred Scott held that even freed blacks could not become American citizens.)
The extent of the conservative rout in the 1999–2000 term was so great that, in Stenberg, O’Connor departed from one of her cardinal principles of jurisprudence. Her position was not supported by public opinion. Indeed, there was nationwide support for bans on “partial birth” abortion. Thirty-one states had banned the practice, and the Nebraska law had passed the state legislature with just a single dissenting vote. In Stenberg, O’Connor’s reverence for expertise, her suspicion of paternalism, and the deft lobbying of Breyer moved her farther left than she had ever gone in her judicial career.
To be sure, the Court did not suddenly turn into a reincarnation of the liberal Warren Court. The justices had parried conservative legal offensives—on church-state, federalism, and abortion—rather than forging a liberal direction of their own. They had protected the status quo, which was what the country wanted, but that left the conservative movement seething. Even with seven Republican appointees on the Court, and eleven of the last thirteen appointments made by Republican presidents, the justices had not made the sharp turn to the right that conservatives had been seeking for a generation. As the decisions in that year showed, the Court would be sticking to its moderate course.
From the law students