First Among Equals (20 page)

The anti-
Roe
dissenters had an opinion-writing field day (as dissenters are wont to do). But it was to no avail. Mention was made of
Plessy v. Ferguson,
which ratified segregation. It, too, had been deeply rooted. It, too, was enshrined in settled expectations. But segregation was constitutionally wrong. The “separate but equal” rationalization had been a fig leaf to cover over the profound violation of the Constitution—the fact that the government, in implementing segregation, singled out individuals on grounds of race in order to separate them. This was not only morally offensive, but legally indefensible. The Court understood this in
Brown v. Board of Education,
and did the right thing by overruling
Plessy.
Why not here as well?

The
Casey
plurality's middle-of-the-road approach was widely seen as at best feckless, and at worst an abdication of a solemn judicial obligation to be principled in coming to judgment. This appeared to be a willful search for the least controversial middle ground. Under the troika's apparent worldview, the Court should avoid divisive controversies to the fullest extent possible, or at least avoid making bad matters worse by changing course. Justices, it appears, should be mindful of public attitudes, and tack the judicial course accordingly.

Abortion proved unique. As we'll see, the centrists' approach toward
Roe v. Wade
was not employed elsewhere. In other areas of law, especially federalism, O'Connor and Kennedy provided the pivotal votes to steer an anti-Washington, pro-states approach. (We will focus on this in Chapter Thirteen, “The Rehnquist Court and the Federal Republic.”) On race, O'Connor and Kennedy held sway, aggressively overturning precedents, as we will see in Chapter Eight, “Counting by Race.” They were firm and resolute on
Bush v. Gore.
As for the junior member of the troika, Souter soon encamped in the Court's left wing, railed against the centrist-conservative majority's approach in a variety of areas, and showed no interest in the genteel approach to
stare decisis
that he vigorously espoused in
Casey.
The troika came together to preserve
Roe v. Wade,
then vanished.

The middle-of-the-road approach did not, in the end, portend a revival of
Roe
's discredited methodology. The “right to die” and assisted suicide cases of the 1990s made that clear. Liberty, as a pivotal constitutional word, was sufficiently broad to protect the “right to choose,” divined in
Roe v. Wade.
But it was not broad enough to include a right to terminate one's own life (or that of a loved one). There would be no overarching libertarian, autonomy-centered approach to the concept of liberty.

The Court first grappled with this question in the case of Nancy Beth Cruzan, which I argued as solicitor general. It was an unspeakably sad case. Following a tragic car wreck, Nancy declined into the netherworld of a persistent vegetative state. The prognosis was hopeless. She would continue to breathe, to have cycles of waking and sleep, but she would never resume normal everyday life.

As the years went by, Nancy's family grew more and more distraught. Having determined that her life should be ended, they requested the medical provider, a Missouri state facility providing permanent care at no expense to the family, to terminate Nancy's nutrition and hydration. Already in effect, and not in dispute, was a Do Not Resuscitate protocol—Nancy was not to be resuscitated in the event of cardiac or respiratory arrest.

The distinction between the two procedures—the requested termination of food and drink on the one hand, and the DNR order on the other—was seen by the state medical facility in Missouri as fundamentally important, morally and professionally. To starve the patient would violate basic precepts of professional ethics. Depriving the patient of food and drink would constitute a killing. In contrast, refraining from using life-saving measures in the event of a cardiac or respiratory arrest was viewed as entirely different. That would allow death to occur naturally. Nancy's family was turned down.

Relying expressly on
Roe v. Wade's
reasoning, Nancy's parents filed suit in Missouri state court seeking an order that would force the state medical-care provider to terminate Nancy's feeding. The matter wended its way through the Missouri state courts and arrived at the Supreme Court, with the two sides sharply divided. At issue, as in
Roe v. Wade,
was the meaning of “liberty.” Did it encompass the right of a family member to decide whether to terminate Nancy's life?
Roe’
s logic suggested as much, so long as the surrogate decision-maker was guided by a genuine desire to seek the “best interests” of the patient, who languished unable to decide for herself. Nancy's mother and father were convinced: Nancy would not want to continue life in her current state.

The Court fragmented sharply, just as it had in the abortion controversy years before. But here the forces espousing a broad, privacy-informed approach to the concept of liberty fell short. Over strenuous dissents, Justices O'Connor and Kennedy combined with Chief Justice Rehnquist and Justices White and Scalia to reject the family's claim. The analysis on both sides echoed the debate in
Roe v. Wade,
with the majority of justices reaching out to existing, established sources of law to determine whether the claimed interest (termination of life) enjoyed protection in common-law decisions or in statutes. The claim failed. No common-law decision or statutes could be identified as pointing squarely toward protection of surrogate decision-making in matters of life and death.

The
Cruzan
majority showed considerable deference to Missouri's vigorously asserted interest in protecting life. In particular, throughout its law (both statutory and judge-made), Missouri had embraced strongly pro-life positions. It frowned severely on suicide (including imposing criminal sanctions for those who assist in its commission). Missouri specifically sought to guard against, for example, the malevolent terminating of life of an elderly relative. The Court let Missouri keep its demanding rule that required “clear and convincing” evidence of the patient's intent before allowing a surrogate decision-maker to take the life-ending step of terminating food and drink.

The
Cruzan
Court thus steered clear of controversy. Instead of imposing one approach on all the states—the command model of
Roe,
which had proved so sharply divisive—the Court permitted the states to try different approaches. The
Cruzan
model, one of restraint and caution, was more comfortable for the Rehnquist Court.

Another element was at work. The Court was mindful of the delicacy of life-termination issues as they intersected with law. Nancy Cruzan was resuscitated by emergency rescue personnel using state-of-the-art procedures. Tragically, the rescue unit arrived on the scene only after Nancy had been lying facedown in a pool of water. She had stopped breathing. She had been brought back from the very brink of death, but with virtually no discernible brain activity.

Her situation was vexing at moral and religious levels. How could even loving family members make a decision about life and death, at least where the patient would be allowed to die through failure to feed and hydrate? In Nancy Cruzan's case, it was clear that she would have experienced pain had she been allowed to die. As one nurse testified at the state proceeding, depriving an animal of food and drink would result in a criminal prosecution. Other members of the medical staff said they would resign, in conscience, rather than be party to depriving Nancy of food and water.

These images of life, death, and forced dying troubled the Court.
Roe v. Wade
had taught a bitter lesson. It was the better part of wisdom for the Court to be cautious.

Roe v. Wade,
coupled with the fury unleashed by the Bork nomination, also taught presidents a lesson: Avoid a
Roe
-centered controversy in choosing justices for the High Court. Just as the Court shouldn't boldly enter a field of controversial and divisive social policy as it did in
Roe,
so, too, presidents might want to avoid a Bork-type nomination that might convulse the nation. No more “impact” appointments, unless a president were willing to take on a divisive, costly fight. This cautious approach led to nomination of the uncontroversial Anthony Kennedy, to the choice of David Souter by President Bush, and to the selections of Justices Ruth Ginsburg and Stephen Breyer by President Clinton.

Roe
had transformed High Court nominations into a bloody battleground. The response was to put on the Court slightly right-of-center (the mistaken perception of the soon predictably liberal Souter) or mildly left-of-center (Ginsburg and Breyer) nominees, thereby avoiding costly battles that would distract the attention of the nation (and the Senate). The risk-averse president will thus nominate individuals who can be steered through the confirmation process with a minimum of controversy.

“Impact” appointments, such as that of Justice Clarence Thomas, would come only at a political price. Judge Thomas, who had chaired the EEOC under President Reagan, was considered well worth the battle. His nomination would mark a genuine turning point since Justice Thurgood Marshall's seat would be occupied by an African American of a polar-opposite judicial philosophy. The nomination proved bitterly divisive, especially in the wake of allegations mounted by Thomas's former colleague at the EEOC, Anita Hill. The rancorous hearings culminated in a narrow 52–48 vote in favor of confirmation.

The Thomas appointment, though, was the exception that proved the rule in the Reagan-Bush-Clinton administrations. To preserve presidential strength for other battles, the strategy would be to nominate comfortably “mainstream” judges.

Chastened by the
Roe
-caused turmoil, complete with annual marches of protest and counterprotest directed at the Court, “mainstream” justices had also learned a bitter lesson. The Court must not, as it had in the Warren Court era, get out in front of the country. Don't drive the agenda of social policy. The Court had done so in the abortion arena. Little did the
Roe
Court expect that a firestorm, never to abate, would be unleashed. Not even the dissenters had predicted that.

Given the
Roe
-induced caution of today's Court, the century's final set of significant decisions under the “liberty” concept were predictable as the Court gave short shrift to aggressive decisions by lower courts invalidating state-imposed bans on physician-assisted suicide. All nine justices joined in these decisions, albeit in different opinions setting forth various rationales. But on this all justices agreed: States could prohibit physician-assisted suicide. The Court would not step in and freeze the legislative debate. To the contrary, the justices would allow the process of debate—and state-by-state experimentation—to proceed, with the Court (potentially) stepping in only to avoid extreme or extravagant results. That was the tried-and-true process abruptly halted—in the abortion arena—by
Roe v. Wade.

The Court thus closed the century paying tribute, in effect, to a fundamental tenet of the judicial philosophy of Oliver Wendell Holmes, Jr. Early in the century, when the Supreme Court had been overturning Progressive-era reforms in case after case, Justice Holmes was in vigorous dissent. His objections to the Court's invalidation of those reform measures were grounded not in his own social philosophy. Quite the contrary. Justice Holmes, a survivor of three wounds during the Civil War, was given over to Social Darwinist thinking. Since only the fittest would survive, it was folly for Congress or state legislatures to interfere with the unfolding of the natural order of life. But Justice Holmes was equally convinced that, as an un-elected judge, he should not impose his philosophical views on the people's elected representatives. Other than to protect certain rights (such as free speech) set forth in the Bill of Rights, the unelected judiciary should not interfere with policy choices by Congress and state legislatures. This, then, was the philosophy of judicial restraint.

With the unanimous upholding of state anti-euthanasia laws, the Court closed the twentieth century with the same spirit that animated Holmes's great dissents at the dawn of the 1900s. The Court would not overturn
Roe,
but the
Roe
methodology would not be carried over to other fields of social policy. Thus, the Court rebuffed the efforts of grandparents to override the judgment of a custodial parent as to visitation rights. The Court was unwilling to establish a new set of rights on behalf of grandparents or other members of an extended family. The Court, with Justice O'Connor writing the lead opinion for a plurality of the justices, held that the state statute at issue, which permitted courts broadly to fashion visitation rights over parental objections, was unconstitutional as applied to the specific circumstances at issue—a loving mother determining that her late husband's parents should not be able to visit their grandchildren freely. The grandparents' lawsuit against the children's mother to enforce their “rights” under state law would fall short.

Restraint, more than two decades after
Roe,
seemed finally to be the order of the day. But
Roe
itself would survive, a tribute to the Rehnquist Court's determination to stay the course. Even attorney general John Ashcroft, a reliable conservative, testified at his confirmation hearings that
Roe
was “settled law.” And in 2003, for the first time in recent history, the Court relied on the
Roe
methodology when it held unconstitutional a Texas law barring homosexual sodomy, thereby overruling its earlier decision in
Bowers v. Hardwick. Roe,
the single most controversial decision of the last generation, has been preserved. It remains to be seen whether it will actually be expanded.

Chapter Eight

C
OUNTING BY
R
ACE
I:

T
HE
A
FFIRMATIVE
A
CTION
C
ONTROVERSY