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As I later learned from internal court correspondence when I was writing a biography of Justice Harry Blackmun, the author of Roe v.Wade, the instigator of this change was Justice David Souter, who said he wanted to rephrase the question “in such a way as to overruling Roe.” Justice Souter, who was then one of two justices recently appointed by President George H. Bush, went on to provide a crucial vote as one of the five justices who preserved the right to abortion.
The group’s second question requires a bit more explanation, but the answer would take the court to the same place.But 11 conferences, ending not with a dissenting opinion but with a grant of review, is highly unusual.So something else is clear about Monday’s order: If the court didn’t make a snap judgment, neither should we when it comes to understanding what just happened and what might come next.But I believe that there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.I’m reminded of something that happened a quarter-century ago when another potential landmark case, Planned Parenthood v. The petition was filed in late 1991 by abortion-rights advocates who believed that the court, following the retirements of its leading liberal justices, was about to overturn Roe v. The advocates’ calculation was that if this was going to be the outcome, it would be better for it to happen quickly and decisively, in time for the 1992 presidential election to become a referendum on the right to abortion and to awaken what polls showed to be a large silent majority favoring abortion rights.The times, the cases and the court are different now, of course. The justices did not reword the questions in either of these cases.But the Casey story shows us that the justices are capable of taking great care not to permit overly zealous advocacy to back them into a corner. The wording in both is straightforward and to the point.The funeral home had a dress code for its funeral directors that required men to wear business suits and women to wear jackets and skirts.When Anthony Stephens, soon to become Aimee, informed that funeral home’s owner that part of the transition process would involve dressing and appearing as a woman before gender reassignment surgery, the owner replied, “This is not going to work out.” The owner later testified that he fired Anthony Stephens because “he was no longer going to represent himself as a man.The cases “could demolish sex discrimination law as we know it,” Mark Joseph Stern wrote on Slate. Equal Employment Opportunity Commission, the justices rejected the questions posed to them by the employer, which lost in the lower court and consequently is the petitioner in this case.I don’t mean to single out two writers whose consistently smart Supreme Court analysis I admire. The employer, a small chain of funeral homes in Michigan that dismissed a longtime employee who was transitioning from male to female, is represented by Alliance Defending Freedom, a prominent Christian-right litigating organization.