The American Spectator

Starting in April 1992, when the case was argued, conservatives looked forward to the Supreme Court’s decision in Planned Parenthood v. Casey. At issue was the constitutionality of a Pennsylvania statute regulating the abortion industry. Chief Justice William Rehnquist was likely to sustain all of the challenged Pennsylvania provisions, on grounds he had established in his plurality opinion for the Court three years earlier in Webster v. Reproductive Health Services — that abortion is not a fundamental right but a “liberty interest” subject to reasonable government regulation. There seemed little doubt that Rehnquist, the three Justices who had joined him in Webster (Antonin Scalia, Anthony Kennedy, and Byron White), and at least new justice Clarence Thomas would rule in favor of the Pennsylvania law. If they did so, they likely would follow the lines set forth in Webster. Such an opinion and Roe v. Wade could not co-exist. Planned Parenthood v. Casey would thus overrule Roe.

But on June 29, 1992, only four justices voted for the second coming of Webster and a de facto overruling of Roe; Justice Kennedy had gone over to the other side. In their joint opinion for the Court, Kennedy and Justices Sandra Day O’Connor and David Souter upheld four of the regulations but voided the fifth under a newfangled “undue-burden test.” The big news of the majority opinion was its reaffirmation of “the essential holding” of Roe.

What had gone wrong for the so-called “conservative” Court?

ON SEPTEMBER 4, Rowland Evans and Robert Novak were the first journalists to report what had been bruited about in legal circles during the summer: that Justice Anthony Kennedy had “flipped” — or changed the vote he cast in the April judicial conference — in Casey, thus unmaking the Rehnquist majority that would have overruled Roe. Kennedy’s equivocation amounted to an epochal reversal for anti-abortion conservatives, but with the notable exception of the Los Angeles Times’s David Savage, Supreme Court reporters made little effort to pursue the story.

On October 25, the New York Times ran a front-page piece by Supreme Court reporter Linda Greenhouse, detailing how O’Connor, Kennedy, and Souter, appointed by Presidents “eager” to see much of the legacy built by Justices William Brennan and Thurgood Marshall dismantled, were now offering “remarkable testimony to the impact of these liberal giants … on their own lives as Justices.” In a subordinate clause buried in the thirtieth paragraph, Greenhouse disputed the Evans and Novak report that, as she put it, “Justice Kennedy had changed his vote in the Pennsylvania abortion case at the last minute.”

On the theory that perhaps Greenhouse had written an earlier story explaining what she now stated so cryptically and authoritatively, I called her. No such story, she said. On what then did she base her assertion that Evans and Novak were wrong and that Kennedy had not flipped? “My sources” — who remained anonymous.

BUT MY OWN SOURCES advise that Kennedy did flip (and not only in Casey, but also in his earlier vote in Lee v. Weisman, in which, writing for a five-person majority, he appeared to contradict what he had said in a 1989 case by now declaring that non-sectarian prayers said at public middle- and high-school graduation ceremonies violate the First Amendment’s establishment clause). There is good reason to believe that what was handed down on June 29 reflected what happened in conference two months before. Rehnquist would customarily have written at least one opinion for the Court in April, but he wrote none. And Justice Harry Blackmun’s opinion in Casey, as first released, indicates that Rehnquist had assigned himself the majority opinion. Criticizing Rehnquist’s opinion, Blackmun refers to it as ante, or “before.” (The Court opinion is always published first, before concurrences and dissents. Blackmun’s reference to ante was later changed to post.)

Blackmun also writes, in a footnote critical of Rehnquist: “Obviously, I do not share the plurality’s view of homosexuality as sexual deviance.” The “plurality”? This reference suggests that the Chief started out writing a majority opinion that, in the process of circulation, became a plurality — as the majority split on the reasoning. But he still had five votes for the result — to sustain all the regulations. Someone flipped, most likely Kennedy. In their party celebrating the end of the court’s term, the clerks performed a few skits. “When a character portraying Kennedy was introduced,” reported the Los Angeles Times’s Savage on December 10, the clerks “played the theme song from ‘Flipper,’ the old TV show about the playful dolphin.”

Now, “flipping” isn’t criminal or unethical, but it is rare, happening only once or twice a term. In this case, it raises questions: Who advised Linda Greenhouse that the Evans and Novak story was inaccurate? Did Kennedy ask a friend to talk to Greenhouse? Did Kennedy himself speak to her?

It would not have been out of character for Kennedy. As it turns out, the hour before Casey was handed down, Kennedy was in his chambers with a writer from the California Lawyer, who reported in the October 1992 issue: Justice Kennedy

stands at the window of his high-ceilinged chambers, waiting to go on the bench, looking down at the crowd of competing protesters in the plaza below. … He looks at the crowd for a long moment. “Sometimes you don’t know if you’re Caesar about to cross the Rubicon,” he says, his voice becoming almost inaudible, “or Captain Queeg cutting your own tow line.”

Ten minutes before the Justices gather to announce the decision, this Caesar in robes (surely he did not fancy himself Queeg) asks to be alone. “I need to brood,” he tells the reporter. Kennedy will later tell the journalist that “only history can tell” if he’s done the right thing.

Anthony Kennedy is interested in history, especially the history of the Supreme Court; pointing to the pictures of Justices on the walls inside the Court, Kennedy tells clerks and friends stories about each one. His interest is more than academic: Kennedy assigns clerks the job of clipping and entering into a notebook all stories about him. He cares about how history will regard him, and therefore about how the first drafters of history — today’s journalists — treat him. As a lawyer who has worked with Kennedy put it, “He thinks he’s Oliver Wendell Holmes.”

COURT OBSERVERS have advanced various explanations for Kennedy’s vote in Casey. Some argue that Harvard Law School’s Laurence Tribe — the two have taught law together during the summer in Austria — has bewitched Kennedy. (Tribe supported Kennedy’s confirmation to the Court.) Or that Tribe-taught clerks have bewitched him, particularly Michael Dorf, Kennedy’s clerk in Casey, who in 1991 co-authored a book with Tribe that praised Kennedy.

But their influence must be understood in context. Prior to his elevation to the Supreme Court, there were already two Kennedys: one was the judicial conservative, albeit not an intellectually rigorous one; the other, seen only occasionally, was a judge open to the kind of claims that lead to activism. On the Supreme Court, the first Kennedy is often at work, but the second Kennedy has been evident at times, and in Casey, which was handed down on the very last day of the term, this Kennedy emerged full-blown. Tribe & Co. have encouraged this second Kennedy, but he is also the product of his own ambition. This is where the Greenhouse Effect kicks in.