Court.
As the lawyers in the Casey case turned their attention from the Third Circuit to the Supreme Court, the counsel for the plaintiffs had politics as much as law on her mind. Like all other Supreme Court practitioners, Kathryn Kolbert, the ACLU attorney who had shepherded the litigation through the Third Circuit, knew O’Connor’s penchant for the middle ground, but the lawyer wanted to take that option away. Kolbert thought it was time to challenge the Supreme Court—and the American electorate. So she devised one of the most audacious litigation tactics in Supreme Court history.
By the time the Third Circuit decided Casey , Kolbert and her colleagues thought that the protections of Roe v. Wade had been whittled away for so long that it was better for their cause to have the precedent reversed once and for all. Kolbert wanted the Supreme Court to decide Casey —and presumably overturn Roe —before the 1992 election. That way, there would be no doubt about the stakes for future Supreme Court appointments.
Kolbert had to move fast. After the decision by the three-judge panel of the Third Circuit on October 21, 1991, the ACLU could have petitioned all of the judges on that court to rehear the case en banc. That would have taken months. Alternatively, the Supreme Court rules gave her side ninety days, until mid-January 1992, to file a petition for a writ of certiorari. A petition submitted at that time probably would not have been acted upon until late spring, so the case would not have been argued until the fall of 1992 and the decision handed down in 1993, too late. To place the fate of Roe before the voters in time for the next election, Kolbert had to figure out a way to have the case argued and decided by the end of the 1991 term—that is, by June 1992.
It took Kolbert just three weeks, until November 7, to file her cert petition. According to the Supreme Court rules, the party seeking review in the Court begins its brief with a section called “Questions Presented.” The art in writing these questions is to frame the issue in a way that will make at least four justices inclined to take the case. But Kolbert was writing for a broader audience than the Court itself, so she crafted the single question in the most provocative way she could: “Has the Supreme Court overruled Roe v. Wade , holding that a woman’s right to choose abortion is a fundamental right protected by the United States Constitution?” It didn’t take a law degree to understand that on the eve of the 1992 election, the future of Roe was now squarely before the Court.
Kolbert’s strategy of forcing the Court to rule before the election was so transparent that it offended Chief Justice Rehnquist. He didn’t like the idea of the Court’s being used as a pawn in a political debate, and he didn’t care for litigants trying to game the Court’s schedule, either. So, the liberals on the Court believed, Rehnquist struck back. Using the powers of the chief justice, he simply kept Planned Parenthood v. Casey off the list of cert petitions that the justices would consider in their weekly conference. Rehnquist saw that the case was “relisted” and thus unresolved. Rehnquist was running out the clock. Harry Blackmun, whose entire tenure on the Court was coming down to a defense of his opinion in Roe , was furious as were his law clerks. In an unusual joint memorandum, they wrote, “We feel strongly that the case should be heard this spring…. If you believe that there are enough votes on the Court now to over-rule Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage.”
But how to do it? How could Blackmun and the prochoice justices force Casey onto the Court’s calendar? John Paul Stevens figured out the answer. Stevens’s reserved manner and penchant for writing solo dissents and concurrences sometimes gave the impression that his iconoclasm equaled a lack of
As the lawyers in the Casey case turned their attention from the Third Circuit to the Supreme Court, the counsel for the plaintiffs had politics as much as law on her mind. Like all other Supreme Court practitioners, Kathryn Kolbert, the ACLU attorney who had shepherded the litigation through the Third Circuit, knew O’Connor’s penchant for the middle ground, but the lawyer wanted to take that option away. Kolbert thought it was time to challenge the Supreme Court—and the American electorate. So she devised one of the most audacious litigation tactics in Supreme Court history.
By the time the Third Circuit decided Casey , Kolbert and her colleagues thought that the protections of Roe v. Wade had been whittled away for so long that it was better for their cause to have the precedent reversed once and for all. Kolbert wanted the Supreme Court to decide Casey —and presumably overturn Roe —before the 1992 election. That way, there would be no doubt about the stakes for future Supreme Court appointments.
Kolbert had to move fast. After the decision by the three-judge panel of the Third Circuit on October 21, 1991, the ACLU could have petitioned all of the judges on that court to rehear the case en banc. That would have taken months. Alternatively, the Supreme Court rules gave her side ninety days, until mid-January 1992, to file a petition for a writ of certiorari. A petition submitted at that time probably would not have been acted upon until late spring, so the case would not have been argued until the fall of 1992 and the decision handed down in 1993, too late. To place the fate of Roe before the voters in time for the next election, Kolbert had to figure out a way to have the case argued and decided by the end of the 1991 term—that is, by June 1992.
It took Kolbert just three weeks, until November 7, to file her cert petition. According to the Supreme Court rules, the party seeking review in the Court begins its brief with a section called “Questions Presented.” The art in writing these questions is to frame the issue in a way that will make at least four justices inclined to take the case. But Kolbert was writing for a broader audience than the Court itself, so she crafted the single question in the most provocative way she could: “Has the Supreme Court overruled Roe v. Wade , holding that a woman’s right to choose abortion is a fundamental right protected by the United States Constitution?” It didn’t take a law degree to understand that on the eve of the 1992 election, the future of Roe was now squarely before the Court.
Kolbert’s strategy of forcing the Court to rule before the election was so transparent that it offended Chief Justice Rehnquist. He didn’t like the idea of the Court’s being used as a pawn in a political debate, and he didn’t care for litigants trying to game the Court’s schedule, either. So, the liberals on the Court believed, Rehnquist struck back. Using the powers of the chief justice, he simply kept Planned Parenthood v. Casey off the list of cert petitions that the justices would consider in their weekly conference. Rehnquist saw that the case was “relisted” and thus unresolved. Rehnquist was running out the clock. Harry Blackmun, whose entire tenure on the Court was coming down to a defense of his opinion in Roe , was furious as were his law clerks. In an unusual joint memorandum, they wrote, “We feel strongly that the case should be heard this spring…. If you believe that there are enough votes on the Court now to over-rule Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage.”
But how to do it? How could Blackmun and the prochoice justices force Casey onto the Court’s calendar? John Paul Stevens figured out the answer. Stevens’s reserved manner and penchant for writing solo dissents and concurrences sometimes gave the impression that his iconoclasm equaled a lack of
Similar Books
