TheSupreme Court on June 29 affirmed, instead of overturning, the Roe v. Wade abortion standard because Justice Anthony Kennedy changed his vote -- a flip attributed in court circles to liberal constitutional scholar Laurence H. Tribe's pulling strings backstage.
Two months later, it is clear Kennedy flipped not only his long-held abortion position but also his vote in the secret conference on the Planned Parenthood of Southeastern Pennsylvania v. Casey decision last fall. That extraordinary switch by a conservative justice stunned antiabortion forces and soured the internal atmosphere among the brethren as the court's new term begins.
This shows how exotic politics inside the Supreme Court can override the designs of presidents. Despite more than 25 years without a justice being nominated by a Democratic president, the court has been pulled leftward by a brilliant law professor utilizing persuasion, flattery and law clerks.
In February 1988, Kennedy arrived from California with a deserved conservative reputation from 13 years on the 9th Court of Appeals. He was a substitute for the rejected Robert Bork, and right-wingers chuckled that Kennedy might turn out to be even more conservative. The White House viewed him as a sure vote against Roe v. Wade.
What happened to him is obscured by judicial secrecy, a curtain of silence broken only by whispers of law clerks and a small paper trail. When the court held its conference on the Casey case in the fall of 1991, Kennedy lined up with a 5 to 4 majority supporting Pennsylvania's statute regulating abortion. Chief Justice William Rehnquist assigned himself the opinion, which would undercut Roe v. Wade's elevation of abortion as an inviolable constitutional right.
The reason Kennedy flipped and formed a 5 to 4 majority affirming Roe is attributed by some critics to his desire for approbation by journalistic and legal establishments committed to judicial activism -- in particular, Larry Tribe. The famous Harvard law professor is accused by critics of lobbying Kennedy. Tribe denied to us any such unethical contact, and there is no evidence to the contrary -- or probably any need for it.
Tribe told us claims of impropriety may have stemmed from his appearance in the summer of 1990 with Kennedy at a judicial conference in Salzburg, Austria, but added that they did not discuss abortion.
Court sources speculate it was at Salzburg that Tribe convinced Kennedy he should hire Tribe's former student, Michael C. Dorf, as a law clerk. Dorf soon joined Peter Rubin, another Tribe protege clerking for another Republican-appointed justice, David Souter. Tribe's 1990 book, "Abortion: The Clash of Absolutes," credits Rubin as his collaborator; Souter also ended up affirming Roe v. Wade.
Tribe's books are considered by critics to be weapons to achieve judicial ends. His 1991 book, "On Reading the Constitution," co-written by law clerk Dorf, is generous in its praise of Dorf's boss. Tribe and Dorf say, "We cannot improve upon" Kennedy's 1989 concurrence in the case striking down the Texas flag-burning statute.
Kennedy also changed course on school-prayer and criminal-justice cases (while not reversing a vote in conference as he did on abortion), leading law clerks at their end-of-session theatrical to label him "Flipper." Kennedy's problem may be his privately stated concern for "our legacy" -- apparently as measured by Prof. Tribe and the news media. In a July 5 analysis, New York Times Supreme Court correspondent Linda Greenhouse celebrated the "emergence" of Republican-appointed "moderate conservatives" -- Sandra Day O'Connor, Souter and Kennedy.
In a scathing address two weeks before the Casey decision, U.S. Appeals Court Judge Lawrence Silberman declared that "those of us who had been involved in judicial selection watched with great disappointment as judges seemed to change on the bench, or, as the press would say, 'grew.' "
But not all conservatives "grew." Justice Antonin Scalia, described by judicial sources as driving to Kennedy's home to argue with him about his reversal, was impervious to flattery by Tribe. Scalia, Rehnquist and Justice Clarence Thomas, hardened as Washington bureaucrats, did not worry sufficiently about their "legacy" to flip on abortion. But Tribe needed only one vote to preserve Roe v. Wade, and he found it.