From Jeffrey Toobin’s book, The Nine, in the chapter on the Casey decision (Planned Parenthood of Southeastern Pennsylvania vs. Gov. Robert P. Casey) we learn about the melodramatic stylings of Justice Anthony Kennedy and an omen about the pragmatic Sandra Day O’Connor’s replacement on the court, Sam Alito. But first, there was Webster:
…even as O’Connor criticized Roe, she never called for its outright rejection. In 1989, the court came close to overturning Roe when it approved a Missouri law prohibiting abortions in public hospitals. In Webster v Reproductive Health Services, Rehnquist, joined by White, Scalia, and for the most part, Kennedy, all but called for the end of Roe. But O’Connor characteristically held back writing, “When the constitutional validity of a State’s abortion statute actually turns upon the constitutional validity of Roe, there will be time to reexamine Roe, and do so carefully.”…
Then came Casey:
Something else was bothering O’Connor too. She was appalled by the provision in the Pennsylvania law that required married women who were seeking an abortion 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 a 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 only had four votes- their own, plus those of Blackmun and Stevens, who were ready to reject the whole Pennsylvania law. They knew there was only one place to go for a possible fifth vote- the chambers of Tony Kennedy.
Kennedy’s peculiar combination of traits- his earnestness and his ambition, his naivete and his grandiosity his reverence for the law and his regard for his own talents- made him receptive to Souter’s appeal. Kennedy thought there was nobility in judging; saving Roe would show the world that the justices were something more than mere pols. A statesmanlike compromise suited both Kennedy’s politics and his conception of the role of the judge.
So, Kennedy signed on with Sourter 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 overturning Roe. Even more dramatically, Kennedy had clearly supported Rehnquist at the conference in Casey. No vote is ever final on the Court until the 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.
Now, fast forward to 2007. From a NYTimes article on the incorrectly named Partial Birth Abortion Ruling (it’s actually Intact Dilation and Extraction), we find the following passage lifted directly from Anthony Kennedy’s majority opinion:
“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Justice Kennedy wrote, alluding to the brief. “Severe depression and loss of esteem can follow.”
Given those stakes, the justice argued, “The state has an interest in ensuring so grave a choice is well informed.”
Thank you, Justice Kennedy for that nostalgic piece of paternalistic Americana. That will be quite enough. If O’connor were dead, she’d be rolling in her grave right now. It must be *killing* her to see this pompous ass making statements like this while her worst nightmare of Sam Alito is now occupying her spot on the bench.
Friends, this nonsense that the Obama camp is spewing about abortion rights is moot. If the court wanted to outlaw Roe tomorrow, they already have the votes to do it. Kennedy just needs to have his ego flattered into believing he is doing the noble, just and protective thing for American women and their psyches and, poof!, it’s over. He already came close to overturning it in Webster, he was just barely persuaded to join the majority in Casey and he’s on record now in the Partial Birth Ruling (actually, Intact Dliation and Extraction) in 2007. If the court is going to do it, it can do it. The death or resignation of a more moderate or liberal justice can not change the balance. You’d have to be able to replace Thomas, Alito, Scalia or Roberts as well, And they’re still pretty young by SCOTUS standards. Until one of them leaves, Roe is not safe and no Democratic president is going to be able to change that.
But the Republican dominance of SCOTUS appointees never really was about Roe. Roe was a way for the GOP to get candidates elected. It was all about triggering an emotional response in the older generation of voters who romanticized the fetus and heaped guilt and shame on young women. It was remarkably effective but it will lose it’s charm if Roe is ever overturned. The strict moralists will be satisfied when abortion becomes the dirty, illegal, dangerous procedure it used to be and young ladies learn to keep their legs together. Their job will be done and their impetus to turn out in droves for the anti-abortion candidate will diminish. Well, there’s always gay marriage but it’s a state by state issue and there’s no Roe to get all incensed over.
No, the GOP has used Roe as a red herring. The anti-abortion justice is also an anti New Deal justice. It’s really all about overturning all of the laws that FDR and earlier progressives managed to slip through. Oh, and segregation. Musn’t forget that. With the uptick of towns incorporating themselves and being run by managers, there is a real danger that the poorer African- American sections of a township will be left without a tax base and money to fund schools in their neighborhoods but we can cover that issue at another time.
And now we have a presumptuous nominee who we can’t quite pin down when it comes to policy on much of anything. But we know who is championing him: libertarian Democrats, former moderate Republicans, young college aged students from affluent backgrounds and a bunch of academic liberals wo don’t like to get their hands dirty. The part of the party that is being purged consists of working class, elderly, latino, women, GLBT. Just the kind of people who benefit from New Deal programs and the Great Society.
Now, I don’t know about you guys but the candidate that just got to where he is by capitalizing on the overt sexism of the media and the hidden currents of the culture at large, has a lot of nerve trying to capitalize on the fears of young women regarding their reproductive rights, especially when he is actively courting the evangelical constituency. It’s cynical at best and I sure as hell am not falling for it. No, I am looking behind the curtain at what he might be planning regarding overturning the law that allowed for Social Security. That’s not a stretch at all to me and in this regard, he may be indistinguishable from John McCain when it comes to SCOTUS.