Free The Nine by Jeffrey Toobin Page A

group, especially in a big case like this one. Why weren’t they asking any questions? Why were they paralyzed?
    Three minutes, four minutes, still no questions from the justices, and no retreat from Kolbert. Her strategy was the same as the one in her brief—go for broke, all or nothing, overturn the Pennsylvania regulations in their entirety or overturn Roe v. Wade . “Our nation’s history and tradition also respects the autonomy of individuals to make life choices consistent with their own moral and conscientious beliefs,” Kolbert said. “Our Constitution has long recognized an individual’s right to make private and intimate decisions about marriage and family life, the upbringing of children, the ability to use contraception. The decision to terminate a pregnancy or to carry it to term is no different in kind.” Finally, after eight minutes, O’Connor spoke up, in her characteristic singsong earnestness, reminiscent of a nursery school teacher.
    “Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe [ v .] Wade in all its aspects,” she said. “Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?”
    Kolbert replied, in so many words, no. She was not going to concede that the individual restrictions could be separated from the larger question of preserving Roe . Kennedy tried, too—“You have a number of specific provisions here that I think you should address”—but Kolbert wouldn’t yield. To her, ruling on Casey meant ruling on Roe .
    At the conference of the justices that week, the result was muddled. Seven justices—Rehnquist, White, O’Connor, Scalia, Kennedy, Souter, and Thomas—wanted to uphold most of Pennsylvania’s restrictions on abortion. Only Stevens and Blackmun wanted to strike them down. But there were tensions within the majority. Rehnquist, White, and Scalia were on record wanting to overrule Roe , and Thomas (his confirmation uncertainty notwithstanding) wanted to join them. But there was not yet a fifth vote to overturn Roe outright. Neither O’Connor, Kennedy, nor Souter was ready to go that far. So at the end of the conference, Rehnquist assigned Casey to himself, intending to write an opinion that allowed states almost a free hand in regulating abortion. As a practical matter, Roe would be overturned, but not in so many words.
    Then, early the following week, Souter decided to pay a visit to O’Connor.

 
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    COLLISION COURSE

    O utsiders tend to be surprised by how rarely Supreme Court justices speak to each other, one-on-one. Under Rehnquist, the nine spent a good deal of time together as a group. Argument days, most Mondays and Wednesdays when they were in session, were preceded by the traditional thirty-six handshakes, each justice with every other, and they had lunch together most of these days as well. There were also conference discussions every Friday during these weeks. After the conference, however, the justices tended to communicate with one another through memos, which were often drafted by their law clerks. (After e-mail became ubiquitous, the memos also circulated electronically, but always with paper copies as well; among the justices, only Thomas and Breyer, and eventually Stevens, were fully comfortable communicating by e-mail.)
    There was, in short, very little of the informal contact of normal office life, just a few phone calls and even fewer visits to one another’s chambers. Some justices had substantive discussions with individual colleagues as rarely as once or twice a year. So Souter’s walk down the hall to visit O’Connor had more significance than it would have in another law office. It was meaningful, too, that Souter went to see O’Connor, not the other way around. All of the justices, not just Souter, went to O’Connor. The way to win a majority in the Rehnquist Court was to earn