Initial Reaction

My first reaction to reading Kennedy's majority opinion is actually a bit off-topic. I notice how strongly he relies upon Casey, and I think this is a very good sign for pro-choice advocates who may have been concerned that Kennedy had changed his mind after Stenberg.

I like the opinion. I think privacy grounds were the right way to handle this case, and I think Kennedy does it admirably. If you don't believe in the right to privacy, you'll find no solace in the opinion. But if you do, then I think Kennedy persuasively explains why this is not really much of an extension of what that right already protects.

O'Connor once again shows herself to be, quite likely, my least favorite justice. She wants to split the difference, again, and do so on the narrowest of grounds. Just as I'd feared the whole court might do, she wants to apply an equal protection "rational basis plus" test, specifically citing Cleburne, Moreno and Romer as the only cases where this has been done. She does give a better explanation for the exceptionality of those cases than has been done before, and for that I give her some credit. However, as it is an exception I don't think should exist as such, the credit is limited.

On to the dissents.