Volume 54, Number 8 · May 10, 2007
Temperamental Justice
By Jeremy Waldron
The Supreme Court: The Personalities and Rivalries that Defined America
by Jeffrey Rosen
Times Books, 274 pp., $25.00
Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court
by Jan Crawford Greenburg
Penguin, 340 pp., $27.95
Do we have Justice Antonin Scalia to thank for the fact that Roe v. Wade was not overturned in 1992? For a while, in the run-up to the decision in Planned Parenthood v. Casey[1]—a decision upholding Roe v. Wade—it had seemed as though there were six votes on the Supreme Court for saying that the central holding of Roe was wrong and that women did not have a constitutional right to abortion. Scalia himself, Chief Justice William Rehnquist, Justice Clarence Thomas, and Justice Byron White clearly thought this. It appeared that Anthony Kennedy and Sandra Day O'Connor also shared this view, both having expressed reservations about Roe in earlier cases.[2] Indeed at one stage there might even have been seven votes. During David Souter's confirmation hearings, pro-choice advocates held up placards saying 'Stop Souter or women will die,' so strong an impression did he give of being skeptical about abortion rights. But Souter quickly confounded the hopes of the constitutional conservatives. By 1992, it was just the votes of Kennedy and O'Connor they thought they could secure.
Review, 4038 words
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