Time - Man of the Year/Time_Man_of_the_Year_Compact_Publishing_3YX-Disc-1_Compact_Publishing_1993.iso/moy/071392/07139924.000

Text File | 1993-04-08 | 4KB | 84 lines

                                                                                U.S. SUPREME COURT, Page 29

Inside The Court


Justice Kennedy flipped positions to uphold abortion rights.
Why did he change his mind?

By RICHARD LACAYO -- With Reporting by Julie Johnson/Washington


    Whodunit is one of Washington's favorite games, in which
the object is to figure out who were the major players behind
important policy decisions in the White House or Congress.
Though the game gets harder when the decisions come from the
tight-lipped precincts of the Supreme Court, it was being played
in earnest last week in an attempt to figure out one of the
court's most unexpected rulings in years. Someone cobbled
together a Roe-friendly majority that included three
conservatives -- Anthony Kennedy, Sandra Day O'Connor and David
Souter -- but who was it?

    In several earlier decisions the trio had emerged as a
center-right coalition willing to throw its support to the
court's two embattled liberals, Harry Blackmun and John Paul
Stevens. They produced majorities in favor of sustaining the ban
on school prayer and strengthening the power of federal courts
to review the convictions or sentences of state prisoners. These
rulings made conservatives question their assumption that 12
years of Reagan-Bush appointments had produced a right-wing lock
on the court. But in order to join the 5-to-4 majority that
reaffirmed abortion rights last week, Kennedy had to step away
from his own earlier opposition to Roe v. Wade, which he
signaled just three years ago when he put his name to a
withering attack on Roe written by Chief Justice William
Rehnquist and joined by Antonin Scalia, the court's right-wing
philosopher-bulldog. At an end-of-term party last week, the
court clerks gently ribbed Kennedy for legal flip-flops by
performing the theme song from the old TV series Flipper.

    Who got to Kennedy? Conservatives point darkly in the
direction of those clerks, the young lawyers selected by the
Justices each term to assist in researching and writing the
court's opinions. Kennedy and Souter both have clerks who were
once students and proteges of Laurence Tribe, the Harvard law
professor who is public enemy No. 1 to legal conservatives.
Peter Rubin, a Souter clerk, helped research Tribe's strongly
pro-choice 1990 book, Abortion: The Clash of Absolutes. Michael
C. Dorf, who clerked for Kennedy, is co-author with Tribe of a
new book, On Reading the Constitution.

    The clerk-did-it theory works this way: Rehnquist believed
that Kennedy would join him, Scalia, Clarence Thomas and Byron
White to produce a majority decision repudiating Roe. But while
Rehnquist was writing what he thought would be a majority
opinion along those lines, Kennedy was persuaded to switch by
his clerk Dorf, perhaps with the collusion of Souter's clerk
Rubin.

    Another theory: Kennedy sees himself as a candidate to be
the next Chief Justice and is staking out a position as more
moderate than Scalia, the conservatives' favorite. Kennedy used
to be tagged as Scalia's faithful but less brilliant follower
(a position Clarence Thomas currently enjoys). Now he has moved
to the head of the court's "wimp bloc," complains Gary Bauer,
domestic-policy adviser in the Reagan White House. The shift in
Kennedy's position, he says, "reflects schizophrenia or
cravenness."

    A third, less Machiavellian theory might hold the key.
Kennedy may indeed have disparaged Roe three years ago, before
Clarence Thomas replaced Thurgood Marshall. But faced with the
possibility that Roe might really be overturned -- and the
social tumult that would ensue -- he instinctively pulled back
from the brink.