Supreme Court justice Anthony M. Kennedy had stayed up until 4:45 AM the night before he spoke at John Marshall Law School, grappling with a capital-punishment case. He explained to his audience of students, faculty, and judges that the American people like the idea of having capital punishment, but they don’t like the actual killing. His voice was tight and you could hear him exhale, as if he was forcing his words out.
One of the students asked Kennedy, who looks like he’d be more comfortable in shorts and a Harvard T-shirt watching TV and drinking a six-pack in his basement, “When you look back down the road you traveled from law school to where you are today, is there anything you discovered that you wish you’d known when you were back at school?”
Kennedy, who was appointed to the high court by Ronald Reagan in 1988, answered impishly, “You mean about the law?”
Then Kennedy stopped smiling and said in a fatherly way, “That’s a very nice question. You know, I think I still don’t understand the extent to which we are the prisoners of our own biases and our own generation. When I attended law school, out of a class of 500 we had 5 women. We had a professor who had a rule that he would not call on women. They were free to volunteer. And to make up for this, we had ‘ladies’ day in which the ladies would conduct the classes.” He leaned out over the lectern, his indignation building. “And there were songs and music–and we thought of it as a joke. And even my lady classmates did not really think of it as a fundamental affront to their human personality.”
Decades later, however, Justice Kennedy joined justices Rehnquist and White and affixed his name to Webster v. Reproductive Health Services, the Missouri case through which the Supreme Court substantially restricted women’s reproductive rights, the case that chipped away at Roe v. Wade and invited the hearing of a new case that would chip away at Roe even more–and maybe bury it for good: State law has offered protections to unborn children in tort and probate law…and [the Missouri statute] can be interpreted to do no more than that.
“And then I taught law school, and I could see the number of women increasing in every class,” Kennedy continued sarcastically, rocking back and flailing his arms. “And I thought, well, I’m with it now. You know, I had this one little bias, but they’re all over now.” His voice turned self-deprecating. “I’m completely free of biases–and prejudices.”
Missouri’s refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the state had chosen not to operate any public hospitals at all. [Missouri] only restricts a woman’s ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital….The state need not commit any resources to facilitating abortions.
“But I wish I’d known at an early age the extent to which you’re blind to human injustice,” Kennedy said gently. “And I still try to teach myself that, but we’re creatures of time. And that’s why the case system is so important. That’s why it’s so important for you to see that somebody who’s really been injured–to see what the law can or should provide for that recovery.”
We do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. … But we are satisfied that the requirement of these tests permissibly furthers the State’s interest in protecting potential human life, and we therefore believe [the Missouri statute] to be constitutional.
“And just as I think I’m freed of bias, I run into something new.” Kennedy went on, drawing out his words like a priest, “No person, no judge is a completely clean slate, freed of all constraints and compulsions by reason of their background and their upbringing and their personal philosophy.”
There is no doubt that our holding …will allow some governmental regulation of abortion that would have been prohibited under the language of [earlier] cases.
“But I wish I knew as a younger person–I wish I knew even better now–the extent to which there’s some neutral principles that I can’t see.”
[The state of Missouri and the federal government] have urged that we overrule our decision in Roe v. Wade. The facts of the present case, however, differ from those at issue in Roe….This case therefore affords us no occasion to revisit the holding of Roe.
No one took the opportunity to ask Justice Kennedy how soon he and his colleagues would be afforded the occasion.