Obviously, not every opinion Justice Brennan put his name to will stand the test of time. But many will. A personal note -- I took some time off from the court beat in the mid-1980's to have a baby and cover Congress for a couple of years. When I came back in 1988, Justice Brennan was 82 and the end of his tenure was in sight. He was one of the first people I ran into, in a court corridor. "I'm glad you're back," he said to me. I replied, "I'm glad you're still here."
By contrast, Greenhouse played it cooler when asked about the judicial philosophy of Justice Anthony Kennedy, who has become an unpredictable swing voter on a closely divided court. In Greenhouse's hothouse of ideology, Kennedy showed his big heart while supporting gay rights, but patronized women with his decision upholding the ban on partial-birth abortion:
I'm considerably less confident that I have a handle on Justice Kennedy's jurisprudence. Speaking personally, it's hard to reconcile his capacious understanding of the human condition in his majority opinion in Lawrence v. Texas, the 2003 gay rights case, with the patronizing and counter-factual attitude toward women that suffuses his majority opinion in Gonzales v. Carhart, last year's so-called partial-birth abortion case.
In April, the Court upheld the Federal Partial-Birth Abortion Act (not the "so-called" act) 5-4, with Kennedy writing the majority opinion. Greenhouse, who marched for abortion rights while covering the court for the Times in 1989, was clearly disheartened by the decision and appalled by Kennedy's sexism in her April 20 story:
But never until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman's health -- mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood.
