Free The Nine by Jeffrey Toobin

the Middle Ages.
    Also like Harlan, Souter believed that the Constitution expressed a libertarian ideal—that freedom from the restrictions of government counted as much as, or more than, the right of legislators to pass laws limiting individual freedom. And the people’s rights were not limited by the precise language of the Constitution, either. One of the strongest arguments against so-called unenumerated rights in the Constitution is that a written document should be limited in meaning to its precise terms.
    In a famous dissenting opinion from 1961, Harlan rejected that view, stating that “the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion,…and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” Harlan’s view on unenumerated rights had become a crucial intellectual building block in the Court’s future decisions recognizing the right to privacy and, later, the right to abortion.
    For David Souter, in 1992, the question then was whether restrictions on the right to choose abortion were the kind of “arbitrary imposition” prohibited by the Constitution. The way that Souter addressed that kind of question was to look at the common law and precedent. Thus, his proposed question, the key issue in the case: “What weight is due to considerations of stare decisis in evaluating the constitutional right to abortion?” For Souter, the answer wouldn’t just resolve Casey but define his judicial worldview.
     

    Even early in Rehnquist’s tenure as chief justice, the Court’s oral arguments were transformed from the Burger years. Throughout the eighties, it was a quiet bench. Brennan, Marshall, and Blackmun asked hardly any questions, and Burger, White, and Powell only a few more. The change began when Scalia joined the Court in 1986. His pugnacious wit and open partisanship raised the energy level in the courtroom, and lawyers could soon expect a hot bench on even the most arcane issues. One way O’Connor prepared for oral argument was to plan questions with her clerks, and she began a tradition of asking the first question of most lawyers. Rehnquist and Kennedy liked to talk, too, and the overall level of volubility on the Court made what happened on April 22, 1992, so extraordinary.
    “We’ll hear argument next in No. 91–744, Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey ,” Rehnquist said in his familiar long-voweled midwestern drawl. “Ms. Kolbert?”
    “Mr. Chief Justice, and may it please the Court. Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case,” Kolbert began. “Since this Court’s decision in Roe v. Wade , a generation of American women have come of age secure in the knowledge that the Constitution provides the highest level of protection for their child-bearing decisions.”
    That was as long as the Court allowed most advocates to speak without jumping in with questions. But there was only silence from the justices, so Kolbert kept going. “This landmark decision, which necessarily and logically flows from a century of this Court’s jurisprudence, not only protects rights of bodily integrity and autonomy but has enabled millions of women to participate fully and equally in society. The genius of Roe and the Constitution is that it fully protects rights of fundamental importance. Government may not chip away at fundamental rights, nor make them selectively available only to the most privileged women.”
    More silence from the bench. A murmur began in the audience, a very knowledgeable