The Nine

by Jeffrey Toobin

  There was only one bright spot in this dismal panorama. John Paul Stevens’s dignified, clearheaded, and insistent eloquence honored the Court. Alone among the justices, Stevens was consistent and logical and constitutionally sound in his thinking. From his home in Fort Lauderdale, he composed a peroration that serves as the best epitaph for this sorry chapter in the Court’s history: “The [per curiam opinion] by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is pellucidly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” (At the last moment, one of Stevens’s clerks prevailed on him, just this once, to give up his favorite word—pellucidly—and substitute the more familiar perfectly, which is how the famous sentence now reads.)

  With one exception, the justices tried to put Bush v. Gore behind them and resume business as usual. Three weeks later, Scalia and Ginsburg followed their custom of welcoming the New Year with each other’s families. Breyer, characteristically, made a systematic effort to take many of the disappointed liberal law clerks to lunch. In restaurants, often at embarrassingly high decibels, Breyer urged the young lawyers to maintain their faith in the Court and believe that their views might someday return to favor. O’Connor tried to avoid discussing the case. Kennedy pretended the whole matter was no big deal.

  David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal. Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

  Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

  PART

  THREE

  14

  “A PARTICULAR SEXUAL ACT”

  When the justices returned following their Christmas break, in January 2001, their docket for the rest of the term finally vindicated Souter’s prediction from the previous fall: it was a boring year.

  The relief was especially pronounced because the criticism of Bush v. Gore left some of the justices shell-shocked. It was one thing to be called wrong, or even reactionary and right-wing—that was routine—but this time critics went after the justices’ motives and their integrity. The decision was called a sham, a political fix, a putsch.

  The backlash against the decision affected those in the majority in different ways. Rehnquist, who was older than most of his colleagues and more disengaged from contemporary political life, ignored the hubbub. Scalia, who loved a fight, welcomed this one, too. (Notably, Scalia rarely defended Bush v. Gore on its own stated terms but rather as a necessary intervention in an out-of-control election—as a tourniquet applied to the body politic. “We had to do something, because countries were laughing at us,” Scalia would tell audiences. “France was laughing at us.”) Thomas found only vindication in the outrage at Bush v. Gore.

  O’Connor, in contrast, never treasured her role in the decision. She valued her place as the Court’s moderate center, and her association with a decision regarded by many as a partisan outrage made her queasy. Like Scalia, O’Connor would rarely defend the decision on its merits. With a nervous, revealing intensity, she would cite the results of the recounts conducted by the news media as supposed proof that Bush v. Gore had not mattered as much as its critics claimed. O’Connor did not voice regret for her vote—such soul-searching was definitely not part of the O’Connor style—but neither did she enjoy the memory of the case.

  Of the five justices in the majority, Kennedy had the hardest time with the aftermath of Bush v. Gore. He had spent most of his adult life as a judge, and he had a special reverence for the profession, “the guild of judges,” as he sometimes called it. There would be, it turned out, two Anthony Kennedys on the Supreme Court—the one before December 12, 2000, and the one after—and his transformation was surely one of the most unexpected legacies of this epochal case.

  The Justice Kennedy of the post–Bush v. Gore era was shaped by one influence in particular—his exposure to foreign law and foreign judges. After 2000, in part to escape the political atmosphere in Washington, Kennedy deepened his commitment to the broader world, and his journeys changed him. Given Kennedy’s pivotal role, the Court and the nation would never be the same. The paradox of Bush v. Gore is that the justices’ gift of the presidency to a conservative sent the Court in its most liberal direction in years.

  On the surface, few justices in recent history arrived at the Supreme Court from a more provincial background than Kennedy. When President Reagan nominated him to the Supreme Court in 1987, Kennedy was fifty-one and still lived in the house where he grew up in Sacramento.

  But that picture of Anthony Kennedy—of a provincial lawyer tethered to the same small city for his entire life—was misleading. Kennedy’s inclinations were hardly those of an insular man. While he was a teenager, his uncle, an oil driller, hired him to work summers on rigs in Canada and Louisiana. Before he graduated from college, Kennedy spent several months studying at the London School of Economics, where he reveled in the range of student opinion and the vehemence of political debate. As a young lawyer, even though his firm in the California capital was small, he developed a robust international practice. Kennedy traveled to Mexico so often on business that he became one of a handful of American lawyers to obtain a license to practice there, where he helped a client establish one of the first maquiladoras—American-owned factories.

  Kennedy’s father had been a legendary lobbyist in Sacramento, best known for his rousing advocacy (and entertaining) on behalf of the California liquor industry, among others. Tony Kennedy hung on to the client for his firm, but he cultivated a very different persona around Sacramento—that of a professor rather than a glad-hander. In 1965, when he was only twenty-nine and a few years out of law school himself, Kennedy began teaching constitutional law at McGeorge, the local law school. Kennedy’s idea of himself as a teacher, and of law as a transmitter of society’s values, was central to his identity.

  Kennedy was not even forty years old when Gerald Ford appointed him to the Ninth Circuit. The job of an appeals court judge can be stultifying, especially for a young man, because the principal duties are so sedentary—reading briefs, hearing arguments, and writing opinions. But Kennedy made something more of it, when he accepted an appointment from Chief Justice Burger as supervisor of the territorial courts in the South Pacific, which entailed traveling to Guam, Palau, Saipan, American Samoa, Australia, New Zealand, and Japan. He kept up his teaching, and it was through the law school in Sacramento that Kennedy developed the connection that would transform his judicial career. McGeorge offered a summer program for law students at the University of Salzburg, in Austria, and Kennedy began teaching there in 1987, the year Reagan nominated him to the Supreme Court. Kennedy returned to Salzburg in 1990, and every year thereafte
r, as soon as the last opinion of the term was handed down, he and his wife, Mary, would pack up their things and head to the idyllic city in the foothills of the Alps.

  The Berlin Wall fell a year after Kennedy joined the Court, and the political developments that followed from the collapse of Communism had a profound effect on his approach to interpreting the Constitution. Suddenly, dozens of countries around the world decided to adopt meaningful written constitutions. These aspiring democracies initially consisted of former components and satellites of the Soviet Union, but eventually countries in Asia, the Middle East, and Africa also sought democratic legal expertise. Virtually all of these nations looked to the United States for inspiration—and more specifically, to its Supreme Court.

  Kennedy was eager to answer the call, and he began to advise emerging democracies—including Czechoslovakia and Russia—on their constitutional law. In the early nineties, dozens of projects were created to export American legal concepts. Most of the justices participated in some of these exchanges, but Kennedy and O’Connor were by far the most active. In 1990, O’Connor helped create what would become the biggest of these institution-building organizations, the Central European and Eurasian Law Initiative (CEELI) of the American Bar Association. The first meeting of CEELI was going to take place in Salzburg, and since Kennedy was going to be there anyway, O’Connor invited him to come along.

  Kennedy enjoyed his summers in the city where many of the most important international judicial conferences took place. The activity was centered in an institution known as the Salzburg Seminar, which was founded in 1947 by three young Harvard graduates who thought that Europe needed a place for the study of American ideals. They raised a few thousand dollars and rented the Schloss Leopoldskron, an eighteenth-century palace that had fallen into disrepair after being seized by the Nazis. The seminar became known as the “Marshall Plan of the mind,” and it remained a meeting place for scholars and judges. Since 1971, nine Supreme Court justices have attended sessions at the Schloss, many of them several times. Kennedy participated in four seminars, and even during summers when he was not officially involved, he visited the Schloss frequently to meet with foreign colleagues.

  The Schloss Leopoldskron has tight security by Salzburg’s relaxed standards, but not because of the jurists. The palace was the setting for several scenes in The Sound of Music, the 1965 movie, and has endured more or less constant traffic from fans. The setting for two key romantic scenes, one between Liesl and Rolf (featuring the song “Sixteen Going on Seventeen”) and the other between Maria and the Captain (“Something Good”), was a glass gazebo originally situated in the garden. When the crowds became unmanageable, the gazebo was moved to a more central location in Salzburg. (Outside the Schloss, a sign on the wall closest to the street reads, in English, “Trespassers Will Be Prosecuted—Including Tour Groups.”) For Kennedy, the Schloss was a second home in Salzburg, one of the few places in the world where a Supreme Court justice could mingle easily with peers.

  In Europe, from the moment he took office, George W. Bush was disdained for his unilateralist approach to foreign policy, his contempt for international institutions, and, especially, his cowboy swagger. Starting in 2001, Kennedy could go entire summers without meeting a Bush admirer, and the subject of Bush v. Gore was avoided like a family tragedy. Kennedy was under no illusions about what his international colleagues thought of his president—or of his own decision to put him in office.

  One day, after Bush v. Gore, Kennedy had lunch with Richard Goldstone, a former justice of the South African Constitutional Court who was in Salzburg to deliver a lecture and, like Kennedy, was eager to meet his foreign counterparts. The two men dined on the second floor of the Schloss, in a room adorned with mirrored panels and gilt sconces that had been reproduced on a soundstage to create the von Trapp ballroom.

  “Do you know any of the Russian judges?” Kennedy asked Goldstone. “They are so resilient.”

  “I’ve met good and bad. Now the court belongs to the president,” he said, referring to Vladimir Putin.

  Kennedy mentioned that he was on the board of an American Bar Association group that advised judges and lawyers in China, where he traveled about once a year. “There was a dinner for one of their vice premiers,” he said. “I knew that I had to give a gift. We don’t have a budget for these things, so I went down to the Supreme Court gift shop, and I found one of these calendars. It was in a nice leather case, and it had some anniversary from American constitutional law for every day of the year. So we’re at this dinner, and I present the calendar to him, and he’s so pleased, so I just say, ‘When’s your birthday? Why don’t you look it up?’ And he says whatever the date was and hands the calendar to the interpreter. So the interpreter just stands there. He looks at me. He looks around. There was this silence. Clearly, he doesn’t know what to do. So I say, ‘Read it, read it.’ And the entry is for Dennis v. United States, affirming prison time for eleven American Communists. There was this silence again. My security guy headed to the door. Then the guest of honor just laughed and laughed.” Kennedy laughed too, adding, “I am not a world-class diplomat.”

  These kinds of exchanges went on in Washington as well. Because Rehnquist more or less forbade discussions of Court business at the justices’ regular lunches, and because the justices could feign interest in one another’s grandchildren for only so long, they started inviting guests. The visitors included Kofi Annan, Condoleezza Rice, Henry Kissinger, the historian David McCullough, the soprano Cathy Malfitano, and Alan Greenspan (the only repeat invitee), but the most frequent guests were foreign judges. Goldstone was one, and so was Aharon Barak, the chief justice of Israel, as well as other lesser-known jurists. In the immediate post–Cold War period, these judicial exchanges may have started as a way of exporting American constitutionalism, but in time the ideas traveled in both directions—with a profound impact on the Court.

  The two-way dialogue pushed the Court—and especially Kennedy—to the left. The United States is the most conservative democracy in the world, with a broad national consensus in support of limited government and low taxes. Virtually all other democracies, in Europe and elsewhere, are committed to a more robust public sector, favoring, for example, national health care as well as higher taxes. Accordingly, the judges in other countries tend to be more liberal than their American counterparts. The contrast is especially stark on the death penalty. Not only have virtually all democracies abolished capital punishment, they have tried to ban the practice from their community of nations as well. All countries seeking membership in the European Union must renounce the death penalty. Among many European judges, executions inspire not just opposition but revulsion. Kennedy’s voting shaded along with his eyeglasses—out with the seventies-style steel-framed aviators, in with a Euro-chic frameless model.

  In the new century, such cosmopolitanism came at the Court from several directions, and a new generation of law clerks brought a new attitude toward homosexuality. In this period, gay rights enjoyed relatively few victories in the mainstream political culture, but the movement completely transformed the world of the legal elite. In major law schools and the big-city firms that employed their graduates (and many former Supreme Court law clerks), the cause of equality for gay people enjoyed close to unanimous support. Schools and firms bragged about their welcoming attitudes toward homosexuals. Significant numbers of gay law students grew up in this environment, accepted it as normal, and went on to clerk at the Supreme Court.

  The gay clerks changed the Court, not because of their advocacy but because of their existence. They were, of course, pretty much indistinguishable from their straight colleagues, and that was precisely the point. The justices, who were without exception polite and decent people, treated the gay clerks with civility. When the longtime partner of a senior lawyer on the Court’s staff died, the first condolence note to the survivor came from Rehnquist. (The chief also had openly gay people on his immediate staff.) Thomas treated the partne
rs of gay clerks with the same boisterous bonhomie as he did everyone else; the photo on his desk of Stevens’s clerk’s partner, the snowboarder, was no aberration. O’Connor gave T-shirts with the words “Grand Clerks” to the newborn children of all her law clerks; shortly after 2000, she learned that one of her former clerks, a gay man, was adopting a baby with his partner. In her briskly efficient way, O’Connor poked her head into her current clerks’ office, explained the situation, and said, “I should send one of the shirts, right? We think this is a good idea, don’t we?” The clerks nodded, and the shirt went in the mail.

  This social transformation at the Court occurred against a starkly different legal landscape. In the 1986 case of Bowers v. Hardwick, the Court had upheld the conviction of a Georgia man for consensual sodomy with another man. Byron White’s opinion for the 5–4 majority was utterly contemptuous of the whole concept of gay rights. “To claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious,” White wrote. In his brief, dismissive concurrence, Chief Justice Burger wrote, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” For a generation of gay people and their allies, the case remained an open wound.