Christopher L. Eisgruber


On his book The Next Justice: Repairing the Supreme Court Appointments Process

Cover Interview of July 22, 2009

A close-up

Justice Stevens permitted me to include in the book an anecdote that illustrates how differently judges and legislators behave when dealing with politically controversial issues.  While I was clerking for him, the Court decided an abortion case, Hodgson v. Minnesota.  Minnesota required girls seeking an abortion to get the permission of both of their parents.  It was an unusual law—most states required only the consent of one parent.  You might also think that it was a cruel law.  After all, when would a parent consent to a daughter’s abortion without even telling his or her spouse?  In broken families, you might suspect, or in families where child abuse had occurred.  So the two-parent rule might be superfluous except in cases where it was damaging.

When Hodgson reached the Court in 1990, Justice Sandra Day O’Connor had never voted to strike down any restriction on abortion rights.  After oral arguments, though, she indicated that she thought Minnesota’s two-parent notification rule was unconstitutional.  Justice Stevens wrote an opinion holding the law invalid.  He wanted Justice O’Connor to join him.  He drafted very carefully and narrowly, hoping that the opinion would be acceptable to her.

Justice Stevens circulated the opinion and waited for a reply.  Weeks passed without word from the O’Connor chambers.  One day, as Justice Stevens met with me and his other clerks, he wondered aloud about what Justice O’Connor was thinking.  We suggested that he go down the hall and ask her.

He rejected our suggestion.  The opinion, he said, should stand or fall on the basis of the reasons offered in it.  He did not want Justice O’Connor to feel pressured or lobbied.  So he waited.  Eventually, Justice O’Connor sent a note joining the opinion.

Justice Stevens’s position was unusual, to be sure.  Most justices would feel no reservation about discussing legal issues with a colleague.  Justice Stevens himself had done so in the past.  Nevertheless, his conduct exemplified, in very pure form, a conviction that all of the justices on the Court would share.  They view it as their responsibility to decide cases on their best judgment about the law, not as a favor to another justice or as part of a vote-trading package.

In the legislature, log-rolling is a perfectly acceptable, perhaps even commendable, way to reach a compromise.  On the Supreme Court, it is completely forbidden.  However deep their other disagreements might be, the justices on the Court agree 9-0 about that.