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- <text id=92TT1576>
- <title>
- July 13, 1992: Inside the Court
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1992
- July 13, 1992 Inside the World's Last Eden
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- U.S. SUPREME COURT, Page 29
- Inside The Court
- </hdr><body>
- <p>Justice Kennedy flipped positions to uphold abortion rights.
- Why did he change his mind?
- </p>
- <p>By RICHARD LACAYO -- With Reporting by Julie Johnson/Washington
- </p>
- <p> 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?
- </p>
- <p> 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.
- </p>
- <p> 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.
- </p>
- <p> 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.
- </p>
- <p> 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."
- </p>
- <p> 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.
- </p>
-
- </body></article>
- </text>
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