As Greenhouse puts it:
The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.Greenhouse does not quote the most poetic/mysterious/meditative lines in Casey (which even contain a variant of her word "mysterious"):
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.
Kennedy has had many years to think about whether that "exalted" tone is a good idea. (I put "exalted" in quotes, because that's what Justice Scalia called it, in his dissenting opinion in Casey.) And the 4 Justices who joined Kennedy yesterday were not around for the poetic exaltation of privacy rights that seemed appropriate to O'Connor, Souter, and him back in 1992. Ginsburg, Breyer, Sotomayor, and Kagan are all post-Casey additions.
Kennedy, as the senior Justice in the majority, had the power to take the writing assignment for himself. He opted to hand it to Stephen Breyer, probably the least likely in the set of 5 to infuse it with inspiration. If the opinion reads as clinical, it's a choice, by Kennedy and Breyer, to make it so.
The others — the women, interestingly enough — could have written poetically in concurring opinions. Only Justice Ruth Bader Ginsburg chose to write a concurrence, but it was very short and not particularly exalted, though does contain some French. ("When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.")
And I have a problem with Greenhouse's phrase "stood up for abortion rights." I support abortion rights — and other rights too — and I don't think talking about judges standing up for abortion rights helps to preserve rights. It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.
Ironically, a clinical tone works better. It's boring and uninspiring, but it makes us the People feel that the Justices know their place, interpreting a text according to an orthodox judicial methodology. The Justices need to help us believe that they are not political, and — even more ironic — it's especially important to stoke our beliefs if they are making their choices out of their own policy preferences.
And, of course, the Justices know that our belief in the rights they talk about are fading even more quickly than usual as we look to a presidential election where it seems we are able to choose which faction of the Supreme Court will get new votes. They know they need to allay our suspicions and that any poetry in the pro-abortion-rights opinion would become a weapon for those who want to defeat the presidential candidate — Hillary Clinton — who would give them another ally in their political cause... if that's what it is.
UPDATE: Linda Greenhouse emails me about this post and I respond, here.