Read Online First Among Equals by Kenneth W. Starr - Free Book Online

“The Court's holding contradicts more than a half-century of well-established First Amendment principles.” The Court, Kennedy said, was doing something for the first time—and that's presumptively suspect in the common-law constitutional tradition. “For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.” He was outraged. “To say that one citizen can approach another to ask the time or the weather forecast or the directions to Main Street but not to initiate discussion on one of the most basic moral and political issues in all of contemporary discourse, a question touching profound ideas in philosophy and theology, is an astonishing view of the First Amendment.” The Court's approach, he said, “is an affront to First Amendment teachings.” “Teachings,” of course, meant the Court's prior decisions.
    To be sure, as elsewhere in the law, nuance counts. And Justice Kennedy, in particular, seems to have a “thumb on the scales” in First Amendment cases. He tends, strongly, to err on the side of promoting First Amendment values. Still and all, much of the Court's modern case law is squarely on the side of a libertarian approach to First Amendment issues.
    In the abortion-speech case more specifically, however, Justice Kennedy seemed to be speaking in particular to the most influential of the common-law constitutionalists, Justice Sandra Day O'Connor. So frequently over the years they had voted together, including in some of the watershed moments when the Court faced thorny questions regarding abortion and school prayer. The two westerners, both Stanford alums, were kindred spirits. Both stood solidly on middle ground, in the spirit of Justice Lewis Powell, Jr. But in the late 1990s, the O'Connor-Kennedy voting relationship began to fray. And Justice Kennedy seemed to take umbrage at the growing separation.
    Justice O'Connor had teamed up with someone new— an appointee of President Clinton. On several large issues (with federalism a notable exception), Justice O'Connor and Justice Stephen Breyer were solidly together. Their growing judicial kinship was evidenced most provocatively on partial-birth abortion, the most controversial social-issues case of recent years
(Stenburg v. Carhart
[2000]). Along with thirty other states, Nebraska had outlawed a particularly grisly abortion method, one carried out by delivery (partial or otherwise) of the fetus into the vagina before procedures too gruesome to describe in detail (but fully described in Justice Breyer's majority opinion and in Justice Thomas's dissent) were employed to terminate life. In the face of disapproval of the particular procedure (called D&X) by various medical authorities, the Court still overturned Nebraska's ban on this procedure. The states were to be severely limited in their regulation of specific medical procedures used in the abortion context. Justice Kennedy was especially dismayed. The decision departed from the “common law” of the Constitution. Specifically, Kennedy viewed the decision as inconsistent with the carefully wrought compromise opinion in
Planned Parenthood v. Casey,
the pivotal 1992 case reaffirming the Court's landmark decision in Roe
v. Wade
but permitting the states to impose regulations on the procedure, such as parental notification.
    To Kennedy, O'Connor had betrayed the
Casey
compromise constructed by the O'Connor-Kennedy-Souter trio. But what lay behind the wounds, it seems, was a different calibration of common-law constitutionalism. The two centrists, O'Connor and Kennedy, were not marching to the beat of the same drummer on this watershed issue. To the contrary, Justice O'Connor was a step (or two) in front. She proved to be more of an innovator within the traditions of common-law constitutionalism.
    She is the most influential and powerful woman in America. Growing up on the