Sisters in Law (24 page)

The votes at conference revealed immediately that the Court recognized the pathology of airborne discrimination. Six of the justices agreed that once the employee showed some evidence of discrimination, the employer had to do something to defend itself. Although the majority decision ultimately favored Ann Hopkins, the vote in
Price Waterhouse
reflected the change in the Court: Kennedy now joined Rehnquist and Scalia in siding with the employer, period. Still, with both White and O'Connor voting to tag the employer with some responsibility, Brennan, senior liberal, had six votes to play with.

VITAL FOR THE COURT

If O'Connor had her way, the liberal bloc would not soon have that chance again. Brennan was manifestly ailing, and it seemed clear that the balance on the Court would turn on who won the upcoming election. The day after the argument in
Price Waterhouse
she wrote to her pal Barry Goldwater that after a “depressing and very traumatic three weeks” since the cancer diagnosis, “I am back at work and on the mend.” It was, she noted, November 1, “a week until election day.” In light of the possibility that people are so indifferent that “many will not vote,” Justice O'Connor said to Goldwater, she “will be thankful if George B wins. It is vital for the Court and the nation that he does.”

O'Connor's correspondence with her political godfather Goldwater provides a rare glimpse into the legendarily discreet justice's political life. Four years earlier, in 1984, then Congressman John McCain wrote to Senator Goldwater to solicit a federal judgeship for a black Democrat, Cecil Patterson, who had been enormously helpful to McCain in “bridg[ing] the gap that we Republicans have with the black community and . . . establishing an effective dialogue which transcends notions of party or race.” In response, Goldwater wrote to John O'Connor. “I have a question to ask of both you and Sandra.” What did both the O'Connors think “as to what might happen politically or legally or any other way if I appointed a black lawyer when only about three percent of our population is black?” There is no answer in the file, but the letter reveals that Goldwater felt free to introduce such a sensitive political subject to a sitting Supreme Court justice. Shortly after the senator sought their off-the-record advice, he had lunch with Justice O'Connor in Washington and presented her with a more overt political opportunity—the Arizona Young Republicans wished to have her receive their Barry Goldwater award (and, of course, speak at their event). “I could have told you,” Goldwater reported to the youthful partisans after the lunch, “that her answer would be that the Court should not do this.”

She was discreet. But she was not indifferent. In '86, Sandra joined the Court betting pool, Rehnquist, Stevens, and Powell, on
the midterm elections. Paying up her losses afterward, she noted ruefully that her “optimism” cost her. She was too hopeful, it turned out, that the Republicans would win their races. Nonetheless, two years later, she told Goldwater that she remained hopeful for the Republican George H. W. Bush.

THE O'CONNOR COURT

Before the triumphant George H. W. Bush had a chance to prove his vitality to the Court, however, Brennan, frail but still sitting, wrote an ambitious draft in the Price Waterhouse case. The negotiation over the opinion in
Price Waterhouse
reveals graphically what a Court centered on Sandra Day O'Connor would do for women. O'Connor responded with a five-page single-spaced letter, suggesting he revise the opinion, making it easier on the employer in several ways. O'Connor's resistance always carried the threat that she would attract the lukewarm liberal White, leaving Brennan with only four votes. In the six exchanges that followed, the difference between the old liberal and her potentially crucial vote came down to whether the employee had to prove that the bad motive played a “substantial” role in the company's decision, as O'Connor insisted, or whether some lesser showing, per Brennan, would do. He resisted; she insisted, using the threat of a concurring opinion to press him into changing his language. Typically recognizing that “five is better than four,” Brennan finally agreed to raise the employee's burden to showing the sexist beliefs “motivated” the adverse decision, not just played a part in it. She responded by saying she was going to write separately anyway.

And so she did, attracting the support of Justice White for her requirement that the plaintiff prove, by “direct evidence,” that sexism was a “substantial” motive for the woman's bad treatment. Depriving Brennan of his majority, his opinion would speak for the four liberals only. Women, so often the victims of unconscious or covert sexism, had a terrible time proving that the sexism substantially motivated their lesser treatment. For women, as the later sexual harassment cases were to demonstrate, stray remarks around
the watercooler were exactly what was keeping them down. Lower courts were left to struggle, with voluble displeasure, with what constituted “direct” evidence of a “substantial” role, often simply repeating what O'Connor said it was not—stray remarks around the watercooler. (In 1991, Congress amended the Civil Rights Act to incorporate Justice Brennan's standard and discard O'Connor's.)

O'Connor's importance soared. The clear center of the more conservative Court, she wielded her position like a seasoned politician. She cast ambiguous votes at conference or professed herself undecided until she saw the draft of the assigned author and then she dragged her feet about signing on to drafts that were circulating, all techniques designed to draw the authors of assigned opinions to her in order to ensure her support. Her most visible strategic tactic was the concurring opinion, agreeing with the outcome of her chosen majority but differing with the opinion of whoever was writing. Although she was not nearly the most prolific source of concurrences on the Court, her efforts were by far the most consequential, because she didn't just write to highlight a collateral issue or reveal a disagreement about doctrine.

When she was, as she often was, the critical fifth vote, O'Connor used the concurrence power to strip the majority opinion of its majority, setting out a different explanation for the outcome. Since she was the fifth vote in these cases, litigants and lower courts recognized that her position was the only one sure to attract the essential five supporters. Almost without exception she used the vehicle of the concurrence to make the conservative rulings more liberal and liberal opinions more conservative, usually by tying the outcome to the particular facts in the case. This pattern drove the lower courts to distraction from the lack of guidance on how to apply the decision in cases with similar issues but different facts.

Although her strategic behavior during the two decades from Powell's retirement in 1987 to her own leave-taking eighteen years later affected many areas of the law, O'Connor's new power had the biggest impact on women's equality in the hallmark women's issue: abortion. In 1992, two decades after the 7–2 decision in
Roe v. Wade
, she rewrote the rules on abortion. Her assault on the embattled 1973 consensus around
Roe
was eminently foreseeable. In
Akron v. Akron Center for Reproductive Health
in 1983, almost immediately after her appointment, she had registered her dissent from the six-man majority that reaffirmed
Roe
. She would have upheld a raft of local regulations discouraging abortions as not “unduly burdening” the right.

She was not alone in criticizing
Roe
. Ginsburg, now many years removed from advocacy by her appointment to the court of appeals, had been following O'Connor's pronouncements on women's issues closely from below. She used O'Connor's story about being offered a secretarial position in a speech right after O'Connor surfaced in public view and spoke admiringly about O'Connor's first discrimination opinion in the Mississippi women's college case in another speech in 1984.

Then Ginsburg surprised many followers by attacking
Roe v. Wade
in terms strikingly similar to O'Connor's 1983 dissent in the
Akron
case. Like O'Connor, Ginsburg strongly criticized Justice Blackmun's opinion in
Roe
for prescribing a time-based framework to govern all abortion matters. She would have struck the specific Texas law at issue in
Roe
, which made all abortions criminal.
Although Ginsburg did not specify which restrictions, if any, she would allow, she suggested the Court should have taken a passive posture, waiting to see what the states did. Had O'Connor had the votes, the Court would similarly have waited to see if the states did anything to unduly burden the right to abortion. So Ginsburg and O'Connor were in agreement on what the Court's procedures should be, if not on what would be allowed.

Unlike O'Connor, who, after
Hogan
, rarely articulated the social meaning of her decisions about women, Ginsburg strongly suggested that women's equality was the justification for protecting abortion rights. Women must control their reproduction in order to achieve legal and social equality. In Ginsburg's analysis, abortion rights would be securely anchored with the other women's rights she had achieved, in the equality language of the Fourteenth Amendment, not in some free-floating notion of privacy. Regardless of whether the state is interested in the fetus from the moment of conception, women's lives would be put on the other side of the scale. If women need abortion rights to achieve equality, it is difficult to envision what restrictions the state could legally impose, except those that serve the interests of women's health itself, such as requiring practitioners to be trained or licensed. Certainly the Court could not approve the restrictions O'Connor defended, such as making women listen to speeches and then wait for their abortions or making young women get permission from their parents. All those restrictions are designed to steer women away from abortions; under O'Connor's analysis anything short of making it impossible—driving women to coat hangers or foreign shores—is acceptable. Under Ginsburg's robust vision of women's lives, it is the unfettered right to make the decision that is central to a woman's equality. Telling her what to do is the core violation.

ABORTION BATTLES IN THE CULTURE WARS

In a devilish way, Ginsburg got her wish. Starting as early as the election of 1972, abortion was recognized as a skirmish in the battle over women's equality and, more broadly, as part of a war over
competing concepts of American culture. The prescient antifeminist Phyllis Schlafly recognized the relationship early on and tarred abortion with the brush used on the Equal Rights Amendment—as a threat to the conventional family. The conservative revival picked up Schlafly's framing and her powerhouse alliance among Catholics, fundamentalist Protestants, and Orthodox Jews. They added abortion to the list of ominous cultural changes—gay rights, moral relativism, declining patriotism. When the New Right came into ascendancy in the Republican Party, formally with the election of Ronald Reagan in 1980, they inserted an explicit plank in the party platform to appoint judges “who respect traditional family values and the sanctity of innocent human life.” After O'Connor, Reagan put the conservative, Catholic Antonin Scalia and Anthony Kennedy on the bench. O'Connor had already expressed her disaffection with
Roe v. Wade
, dissenting in the cases grouped together under
Akron v. Akron Center for Reproductive Health
in 1983.

Watching these developments, in 1986, the energetic Missouri Citizens for Life drafted the most ambitious legislation yet. The Missouri law included a preamble deeming life to begin at conception, an order that state laws must treat fetuses as having the rights of persons, a provision ordering doctors to test fetuses for viability, and a prohibition against use of public resources for abortions or even counseling abortions. The statute was so extreme, the Catholic Conference fretted that the Missouri attorney general would not be willing to defend the whole new law robustly, for fear of losing the case. The composition of the Court had changed enough to raise the possibility that it really would reverse
Roe
outright, and the Missouri activists wanted their AG to ask the Court to do so.

When the Missouri law came before the Court in
Webster v. Reproductive Health Services
, it did seem to leave it little room to escape the confrontation with
Roe
. As Bill Cox and his allies feared, the Missouri attorney general, perhaps suspecting that the Court might not be ready to overrule
Roe
directly, contended that the statute wasn't as bad as it looked. The life-begins-at-conception language was just bloviating advice in a preamble, the state's brief said (merely “precatory” and imposing no restrictions on anyone).
The state accepted that it could not forbid publicly funded doctors to tell female patients they needed an abortion. Doctors can use their good judgment in administering the viability tests, the state said. But the Court was interested enough in outright reversal to grant leave for the United States to intervene as friend of the court to present the argument. George H. W. Bush's solicitor general resubmitted the 1986 Reagan administration brief to the newly altered tribunal, asking the Court to overrule
Roe
, and had the unpleasant task of arguing for reversal to a tribunal that still included its author, Harry Blackmun.

As usual, O'Connor's chambers included clerks of many diverse views. The responsibility for the initial memo fell to a clerk who came up from Ginsburg's chambers, Daniel Mandil. He came down in favor of taking Missouri's olive branch. Just let them minimize the severity of the restrictions, he counseled, and do the judicial-restraint thing of not confronting a constitutional decision until you must. If Mandil had his way,
Webster
would blow over and, although women would be burdened with a list of restrictions never before approved,
Roe
would remain the law as it was before the clouds gathered.

O'Connor's other clerk Andrew McBride, fresh from the chambers of the recently rejected conservative Supreme Court candidate Judge Robert Bork of the D.C. Circuit, held down the right, while Jane Stromseth, up from clerking for the liberal district judge Louis Oberdorfer, occupied the opposite end of the political spectrum. Even as Mandil undertook his assigned duties, Stromseth and McBride both took the unusual step of preparing dueling memos. McBride argued for reversing
Roe
and Stromseth suggested that O'Connor find much of the statute to be an undue burden, a move that would leave most of
Roe
intact. When the clerks walked into O'Connor's chambers as usual the Saturday before oral argument, no amount of chili was required for a hot discussion to ensue. The justice gave no hint of where she was going.

At oral argument the next week, however, she signaled her discomfort with allowing the states unlimited free rein over women's reproduction. If the Court overruled
Roe v. Wade
, she
asked Solicitor General Fried, would the state have “a right to require the women to
have
abortions,” say, if “we had a serious overpopulation problem?” When Fried denied this, she pressed him. If the woman had no liberty interest to protect her right to abortion, what would protect her against abortion? (This very unappealing scenario of the forced abortion was, of course, the case Ginsburg wanted to bring first to establish women's reproductive rights, all those years ago when the air force discharged her client Susan Struck for refusing to have an abortion. But the canny Solicitor General Erwin Griswold had settled with Struck, making the case moot.)

The oral argument in the Missouri case graphically illustrates the appeal of the equality strategy. Without a robust commitment to women's equality to control their destiny as the foundation for abortion rights, as Ginsburg advocated, abortion advocates were hampered in trying to rein in the states. With Justice Scalia in hot pursuit, the lawyer for the abortion providers was repeatedly forced back on the unconvincing argument that the laws should fall because reasonable people differed about when life began. Why isn't when life begins exactly the kind of dispute we leave to the states, Scalia wanted to know. If the state can decide life begins at conception, the question then is what is to stop the state from forcing women to carry the life to term? Ginsburg's answer would have been that women's equality is what stops the state. Women need to control their reproduction if they are going to participate as equals in American life. In the universe of perfect logic, unless women count, as Ginsburg cannily perceived,
Roe
falls, and the states can do whatever they want.

But the Court rarely operates in the universe of perfect logic. As Blackmun held his breath, the Court stepped back from the brink. After a majority of five voted at conference to uphold the Missouri law, Rehnquist circulated a draft proposing to abandon the trimester scheme of
Roe
in favor of something like O'Connor's original test of undue burden, but not to overrule
Roe
outright. It was hardly a white flag. He would then uphold everything Missouri did, including the section of Missouri law gagging doctors
at public facilities, which the state had declined to appeal. If Missouri's requirement of tests for viability violated the bright line of viability set out in
Roe
, then that aspect of
Roe
, his draft suggested, was “not constitutionally relevant.”

Rehnquist's analysis was totally lawless. The Court was still going to preserve the shell of
Roe
, that is, forbid the states to unduly burden women's access to abortions as an abstract matter, which is lawless enough. Then he went on to hold that nothing the state could dream up so far would actually fail the test. He was clearly testing to see what O'Connor would tolerate.

O'Connor immediately threatened to concur and even, if pushed, to dissent in part on the doctor gag order. The liberals, seeing an opening, offered to join O'Connor in dissent. Rehnquist backed down. He now knew that O'Connor was not going to overrule
Roe
outright. As long as she held the crucial swing vote, there was life in women's abortion rights, however faint the beat.

On the subject of the exact structure of
Roe
, she proposed that the Court just accept Missouri's concessions and act as if the Missouri law did not challenge the core of the opinion in
Roe
. “I see,” she wrote, “no necessity to go further than that in this case.” Rehnquist did not back down. As she had threatened to do, O'Connor duly filed a concurrence, depriving Rehnquist of his majority and formally preserving the trimester precedent of
Roe v. Wade
. She deliberately read the Missouri law to avoid a conflict and therefore, as she put it, to refuse “to accept the State's invitation to reexamine the constitutional validity of
Roe v. Wade. . . .
When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of
Roe v. Wade
, there will be time enough to reexamine
Roe.
And to do so carefully.”

Even
Roe
's defenders, Blackmun and Stevens, said that pretending the Missouri law was compatible with
Roe
was “fraudulent” and “indecent.” But O'Connor was not ready to jump off the abortion cliff. In the inevitable next term's abortion case, O'Connor actually made a five-justice majority with the liberals to strike down the law compelling a young woman to get both parents' approval for an abortion. It was the first time the right-to-life movement
came up with any restriction on the women O'Connor didn't publicly vote for. O'Connor's opinion hardly amounted to a wholesale embrace of women's rights. With the other conservatives, she allowed the parental notification as long as it included an option to let the girl go to a judge for her abortion permission.

In 1990 Brennan left and was replaced by the Delphic David Souter, a man with no record on the subject of abortion at all. When Souter joined the conservatives to okay a doctor gag law in a 1991 case, the tension mounted. The next year, the conservative Clarence Thomas took Thurgood Marshall's place. Abortion inevitably surfaced again in 1992, in a Pennsylvania case,
Planned Parenthood v.
Casey
, and it looked like there were six votes to reverse
Roe v. Wade
outright
.
Souter's one vote had been opposed to abortion rights, and the four from 1989—White, Rehnquist, Scalia, and Kennedy—plus the new conservative, Clarence Thomas, would act with or without Souter and certainly without their faithless ally Sandra Day O'Connor.