Tweaking the Times
Slight correction to that post below on the New York Times printing the entire opinion rendered in the Supreme Court decision to uphold the partial birth abortion ban.
The opinion, the startling and graphic and eloquent words of Justice Kennedy, was not run at all in the NYT’s print version. And in the article the Times did run, veteran Supreme Court reporter Linda Greenhouse departed from one of her usual tendencies of analyzing a ruling in comparison with earlier rulings for significance. No one doubts the significance of this week’s ruling by the 5-4 majority to ban partial birth abortion. But not everyone is getting the deeper connection of Justice Kennedy’s opinion to his role in the 1992 Casey decision.
Early in considering the case, Justice Souter defied all expectations and voted to uphold Roe v. Wade, resulting in a precarious five Justice majority consisting of Chief Justice William Rehnquist, Byron White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas that favored upholding all the abortion restrictions and overturning Roe. However, Kennedy changed his vote at the last minute and joined with fellow Reagan-Bush justices Sandra Day O’Connor and David Souter to form a plurality that would uphold Roe.
In 1992, those five justice were ready to vote to overturn Roe. Kennedy “changed his vote at the last minute” and joined a complicated plurality that didn’t, in the end, say what Kennedy expected it to. And now 15 years later, he is able to correct that intention.
