Inside the Court

By Richard Lacayo

Whodunit is one of Washington's favorite games, in which the object is to figure out who were the major players behind important policy decisions in the White House or Congress. Though the game gets harder when the decisions come from the tight-lipped precincts of the Supreme Court, it was being played in earnest last week in an attempt to figure out one of the court's most unexpected rulings in years. Someone cobbled together a Roe-friendly majority that included three conservatives -- Anthony Kennedy, Sandra Day O'Connor and David Souter -- but who was it?

In several earlier decisions the trio had emerged as a center-right coalition willing to throw its support to the court's two embattled liberals, Harry Blackmun and John Paul Stevens. They produced majorities in favor of sustaining the ban on school prayer and strengthening the power of federal courts to review the convictions or sentences of state prisoners. These rulings made conservatives question their assumption that 12 years of Reagan- Bush appointments had produced a right-wing lock on the court. But in order to join the 5-to-4 majority that reaffirmed abortion rights last week, Kennedy had to step away from his own earlier opposition to Roe v. Wade, which he signaled just three years ago when he put his name to a withering attack on Roe written by Chief Justice William Rehnquist and joined by Antonin Scalia, the court's right-wing philosopher-bulldog. At an end-of-term party last week, ) the court clerks gently ribbed Kennedy for legal flip-flops by performing the theme song from the old TV series Flipper.

Who got to Kennedy? Conservatives point darkly in the direction of those clerks, the young lawyers selected by the Justices each term to assist in researching and writing the court's opinions. Kennedy and Souter both have clerks who were once students and proteges of Laurence Tribe, the Harvard law professor who is public enemy No. 1 to legal conservatives. Peter Rubin, a Souter clerk, helped research Tribe's strongly pro-choice 1990 book, Abortion: The Clash of Absolutes. Michael C. Dorf, who clerked for Kennedy, is co-author with Tribe of a new book, On Reading the Constitution.

The clerk-did-it theory works this way: Rehnquist believed that Kennedy would join him, Scalia, Clarence Thomas and Byron White to produce a majority decision repudiating Roe. But while Rehnquist was writing what he thought would be a majority opinion along those lines, Kennedy was persuaded to switch by his clerk Dorf, perhaps with the collusion of Souter's clerk Rubin.

Another theory: Kennedy sees himself as a candidate to be the next Chief Justice and is staking out a position as more moderate than Scalia, the conservatives' favorite. Kennedy used to be tagged as Scalia's faithful but less brilliant follower (a position Clarence Thomas currently enjoys). Now he has moved to the head of the court's "wimp bloc," complains Gary Bauer, domestic-policy adviser in the Reagan White House. The shift in Kennedy's position, he says, "reflects schizophrenia or cravenness."

A third, less Machiavellian theory might hold the key. Kennedy may indeed have disparaged Roe three years ago, before Clarence Thomas replaced Thurgood Marshall. But faced with the possibility that Roe might really be overturned -- and the social tumult that would ensue -- he instinctively pulled back from the brink.

With reporting by Julie Johnson/Washington