The Nine: Inside the Secret World of the Supreme Court

This chapter tells how judicial conservatives came to define themselves and coalesce around an ideology in the 1980s, after Ronald Reagan was elected president. Under Earl Warren, the Supreme Court had become liberal in its decisions, such as Brown v. Board of Education (integrating public schools) in 1954 and Roe v. Wade (legalizing abortion) in 1973. Conservative justices largely went along with this trend, if a bit less enthusiastically. But, as Toobin writes: “[O]n the big legal questions, the war was over, and the liberals had won” (12). This went for law schools as much as the court system.

Then, in 1982, three law students began what would become the Federalist Society, an organization promoting conservatism in the legal field. Faculty advisers included Robert Bork at Yale and Antonin Scalia at the University of Chicago. Part of their new approach included judicial activism to correct what they felt were wrong, overreaching decisions. The judicial framework used to promote this conservatism was called “originalism” (18), or only what the framers of the Constitution had intended or meant—and no more.

In the context of Roe v. Wade, which conservatives were determined to reverse, this meant that since the Constitution made no mention of a woman’s right to choose an abortion, originalists argued the decision overreached. (The basis of the decision was that abortion was covered under an individual’s right to privacy.) In 1985, a case came before the Court that would have an effect on Roe. Three years earlier, the state of Pennsylvania had passed a law restricting abortion somewhat by requiring that a woman must first be given information about its risks. This was challenged and most of it found unconstitutional by an appeals court before the case made its way to the Supreme Court. Samuel A. Alito Jr., then on the staff of the Justice Department, argued for taking a hard line, advocating that Roe should be overruled, even though there was little chance of this happening. The case was a defeat for the administration, but only by a 5-4 margin, whereas Roe had been decided with a 7-2 vote. The lesson learned by conservatives, Toobin writes, was that “[t]hey didn’t need better arguments; they just needed new justices” (17).

Shortly after this case, Chief Justice Burger resigned. Reagan chose Justice Rehnquist to replace him, and then selected Scalia to fill Rehnquist’s seat. Within a year, another seat opened, and Bork was nominated. In the meantime, however, Democrats had taken control of the Senate and the Iran-Contra scandal had damaged Reagan somewhat. In addition, the seat was that of Lewis Powell, who had become an important swing vote on many cases, so the Democrats decided to oppose Bork. His positions on many issues were controversial, and his nomination was defeated. After another nomination collapsed, Anthony Kennedy was chosen as a safe pick and quickly confirmed.

George H. W. Bush followed Reagan as president and had two opportunities to fill Supreme Court vacancies in his single term. The first opening, arising from William Brennan’s resignation, was filled by David Souter, a virtual unknown from New Hampshire. Religious conservatives like Jerry Falwell, leader of the Moral Majority, had gained power throughout the Reagan years and now demanded Supreme Court nominees who would vote consistently on issues important to them, such as abortion. Bush’s chief of staff, John Sununu, was from New Hampshire and assured them of Souter’s conservative credentials. When, in fact, Souter voted more moderately, the evangelical conservatives complained, and Sununu promised an arch-conservative for the next opening. That occurred when Thurgood Marshall resigned in the summer of 1991, and Bush nominated Clarence Thomas. When he was confirmed in October, Republican presidents had chosen eight of the nine justices, and the conservative transformation of the Court seemed to be complete. 

This chapter is about the confirmation of Clarence Thomas to the Court. Thurgood Marshall had wanted to wait to retire under a Democratic president, but he was ill and felt unable to continue in 1991. Privately, Bush and his aides felt it would look bad to have the Court revert to being all white, even though they downplayed this factor publicly, and the search for a black judge who was also a staunch conservative, “pretty much began and ended with Clarence Thomas” (26). Because Bork had discussed his legal thought at length and it got him into hot water, Thomas took the opposite strategy, saying virtually nothing and claiming to have few opinions on major issues.

During the hearings it became known that he had been accused of sexual harassment by a former employee named Anita Hill. Her story had been known to the Democratic committee members, but not made public; once it was leaked in October, however, it was decided that she should testify about it. Hill said that Thomas talked about sex and pornography, allegations that the judge denied and rebutted by accusing the committee of staging a “high-tech lynching” (27). Republicans accused Hill of lying, and the hearings dragged on into the wee hours of Monday, October 14. Thomas was confirmed the next day by a vote of 52-48.

At the Supreme Court, another issue was holding the justices’ attention: Chief Justice Rehnquist’s wife was dying. Rehnquist was popular with all of the justices, particular since his predecessor had been unpopular. For instance, Rehnquist had revised the weekly conferences that had been so poorly managed by Burger, making them briefer and more organized. Not long after he had become chief justice, his wife Nan was diagnosed with cancer. Toobin writes that their battle against her disease only endeared Rehnquist to his fellow justices even more. Nan died two days after Thomas was confirmed by the Senate. Originally, the White House had planned for Thomas to be sworn in by Rehnquist on November 1. However, with all that had taken place during the confirmation process, Bush’s aides were afraid that more women might come forward with stories to support Anita Hill’s version of events. Since he would not officially become a justice until he was sworn in, they wanted to hasten the process by moving up the date. They decided it was important enough to impinge upon Rehnquist’s period of grieving and ask him to do just that. He agreed and Thomas became a justice on October 23.

The whole affair had been a breach of the Court’s normally staid aura. The next month, however, it continued as Justice Thomas and his wife gave an interview to People magazine about their personal ordeal during the hearings. This was not business as usual, and when Thomas occupied his chambers and began working, he was not openly welcomed. In part, Toobin argues, this was the nature of the Rehnquist Court, where the justices often kept to themselves. But Thomas had enjoyed more collegial encounters at his previous positions and missed the interaction, as well as the ability to walk around the neighborhood during lunch. He ended up retreating behind his office door, figuratively and literally. Then, shortly after he started working, he was faced with a chance to get even with the liberals who had opposed him during the hearings: “The question before him: Should Roe v. Wade be overruled?” (35).

The third chapter deals with an important abortion case that the Supreme Court accepted just after Thomas became a justice. State legislatures had followed the rightward shift of the Court and began passing ever more restrictive laws. In 1989, the state of Pennsylvania had passed a law that required, among other things, that woman wait twenty-four hours for an abortion after contacting a clinic and that wives inform their husbands of their intent. An appeals court had upheld the law, except for the provision that wives inform their husbands.

Toobin introduces Sandra Day O’Connor at length, arguing that she led the Court at that point on the issue of abortion. She had graduated from Stanford Law School in 1952, but had received no job offers. She and her husband, a fellow law student, then settled in Phoenix, Arizona, where they raised a family. O’Connor worked as an assistant attorney general before becoming a state senator. In the latter role, her record on abortion reflected middle ground as Arizona considered legislation: she supported some restrictions but not others.

In the case before them, Planned Parenthood v. Casey, the lawyer for Planned Parenthood, Kathryn Kolbert, wanted to force the issue in dramatic fashion before the 1992 presidential election so that people would understand its importance. To do this, she had to file a petition for the Supreme Court to take up the case early enough so that if it were successful, the Court would be able to render a decision by the end of its session in June 1992. As Toobin writes, Rehnquist disliked Kolbert’s attempt to both dictate the Court’s schedule and use the Court for political ends. He thus did not bring up the petition in weekly conferences, but relisted it each week. Other justices objected to this, and John Paul Stevens threatened to write an unprecedented dissenting opinion about Rehnquist’s tactics. The chief justice, wishing to avoid any stain on the Court’s reputation, gave in, and the case was scheduled for late April.

The justices had to decide which question(s) to consider in deciding the case. Kolbert, seeking a direct up-or-down vote, had submitted only one: “Has the Supreme Court overruled Roe v. Wade, holding that a woman’s right to choose abortion is a fundamental right protected by the United States Constitution?” (41). Justice Souter did not like the question and asked that it be changed; the others agreed and decided to vote on the constitutionality of each aspect of the law. Toobin describes Souter more here, and his unique status on the Court. He had had a rocky start, and was really in over his head the first year before gaining his footing. He was a somewhat eccentric individual, a bachelor who lived as though in a previous century. For example, he wrote only with a fountain pen and preferred to work without lights during the day, moving his chair around the room to seek the natural lighting.

When Kolbert argued the case before the justices, they were unusually silent, not asking questions for eight minutes. Finally, O’Connor and Kennedy attempted to get Kolbert to directly address the questions as they posed them—regarding the merits of each of the law’s aspects. However, she declined, preferring instead to argue the case as a vote on Roe itself. Later, at the weekly conference, seven of the nine justices were in favor of upholding the Pennsylvania law, and Rehnquist chose to write the decision himself. This would give states a free hand to restrict abortion, with the result that “[a]s a practical matter, Roe would be overturned, but not in so many words” (47).

Continuing with the case of Planned Parenthood v. Casey, this chapter explains how it turned out. Justice Souter was not happy with the outcome as planned by Rehnquist. He personally visited Justice O’Connor in her chambers, as she had a great deal of influence on this issue. As it turned out, she was not entirely satisfied with the intended outcome either. Souter’s focus was on precedent and the need for the Court to avoid such a sensitive political issue, hoping to uphold the Pennsylvania law without invalidating Roe. O’Connor agreed, though her focus was on the notion that controversial issues like abortion ought to be decided by legislation rather than in the courts. Over the years, she had criticized Roe without ever showing an inclination to overturn it. Her general approach was that states should be able to restrict abortion unless this created an “undue burden” (50) on women. She also strongly opposed the stipulation in the Pennsylvania law that required women to inform their husbands when seeking an abortion. The two justices knew that only Blackmun and Stevens would agree with their position right away; the swing vote would be Justice Kennedy.

O’Connor and Souter spoke with Kennedy about their reservations, in an effort to get his support. He was the opposite of Souter, relishing the public role (as he saw it) as crusader for justice, seeking the limelight, and certain of his gifts. He was attracted to the fact their approach would allow the justices to rise above the political fray. As Toobin writes: “A statesmanlike compromise suited both Kennedy’s politics and his conception of the role of the judge” (53). They agreed to work together in secret, each drafting different parts of their opinion. Meanwhile, Rehnquist had completed a draft of his opinion, which he circulated. In it, he stated directly that the Court had earlier been “mistaken” (54) in its decision in Roe, ensuring that Souter, O’Connor, and Kennedy would not agree with it. About a week later, they circulated a draft of their opinion. Rehnquist took it in stride; Justice Scalia did not. He took particular exception to Kennedy’s ornate prose that, in his opinion, sounded impressive but meant little. Aside from Thomas, Scalia was the only originalist on the bench, rigid in his certitude of the founders’ meaning and intent. Most of the other justices subscribed to the idea of a “living Constitution” (56), that is, one whose meaning was dynamic. He worked hard to change Kennedy’s position before the final decision was announced, without success. Acting on a suggestion by Stevens, the three justices reorganized their opinion so more of it was backed by the majority, strengthening it. In the end, Toobin writes, O’Connor was the clear winner as her ideas on abortion, which none of the other justices fully agreed with, were accepted. The language she had previously used about an “undue burden” (60) was written into the Casey opinion, and O’Connor’s focus on women’s health and independence became paramount.