The Nine

by Jeffrey Toobin

  One Saturday in the spring of 1986, Justice Lewis Powell struck up an unusual conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10 percent. Chinnis said that sounded right to him. “I don’t believe I’ve ever met a homosexual,” Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, “Why don’t homosexuals have sex with women?” “Justice Powell,” he replied, “a gay man cannot have an erection to perform intercourse with a woman.” The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell’s previous law clerks). Earlier in the term, Chinnis had introduced Powell to the man he had lived with, but the clerk never knew for sure what Powell understood about his sexuality. The matter turned out to be of more than passing significance because Powell, after a great deal of agonizing, ultimately provided the fifth vote in support of White’s opinion in Bowers.

  Seventeen years later, when the Court weighed whether to overturn Bowers, no justice could conceive of asserting that he (or she) had never met a homosexual. But the fact that the justices all knew gay people did not necessarily mean that they were inclined to overrule what was still a fairly recent precedent.

  The facts in the new case, Lawrence v. Texas, were uncomplicated and very similar to those that gave rise to Bowers. On September 17, 1998, Houston police, responding to a report of a weapons disturbance, entered an apartment where John Geddes Lawrence and Tyron Garner were having sex. The two men were arrested for violating the Texas law against “deviate sexual intercourse,” which prohibited oral and anal sex. The question for the Court was whether a state could constitutionally prohibit consensual sexual conduct between adults.

  Even at the oral argument, it was apparent how much the Court had changed over the years. All Rehnquist could say in support of the Texas law was that “the kind of conduct we’re talking about here has been banned for a long time.” Even Scalia, who had, like Rehnquist and O’Connor, supported the Bowers opinion, sounded defensive. “It’s an act committed in private,” he said. “The police have not gone around knocking on bedroom doors to see if anyone—I mean—this is not the kind of a crime that the police go around looking for.” In questioning Charles A. Rosenthal Jr., the Harris County district attorney, Breyer called the Bowers decision “harmful in consequence, wrong in theory, and understating the constitutional value” and asked, “How do you respond to that?”

  Rosenthal tried to change the subject.

  But Breyer wouldn’t give up, saying, “I would like to hear your straight answer.”

  The worldly Supreme Court audience chuckled at the double entendre, which Breyer himself neither intended nor noticed.

  At the conference, only three justices supported the Texas law—Rehnquist, Scalia, and Thomas. O’Connor could not bring herself to repudiate her vote in Bowers altogether, but she couldn’t bring herself to reaffirm it, either. So she found a characteristic middle ground, voting to overturn Lawrence’s conviction on the ground that the prosecution of homosexuals (but not heterosexuals) violated the Equal Protection Clause. That left five votes—Stevens, Kennedy, Souter, Ginsburg, and Breyer—to overturn Bowers, and Stevens wisely assigned Kennedy to write the opinion. (Inside the Court, Kennedy was sometimes said to be “clerk-driven”—that is, overly influenced by his law clerks. Lawrence demonstrated that the charge was both unfair and unwarranted, because three of Kennedy’s four clerks that year were committed conservatives.)

  As the Court often saved the most controversial opinions for the last day of the term, everyone knew that the decision in Lawrence v. Texas would be announced on June 26, 2003. Justices do not read their full opinions in open court but generally give abbreviated versions for the tourists and other (usually) baffled spectators who happen to be present. But on this day, gay rights supporters from around the country filled the spectator benches, waiting for the result in Lawrence. The audience stirred when Rehnquist, impassive as always, said, “The opinion of the Court, number 02–102. Lawrence versus Texas will be announced by Justice Kennedy.”

  Kennedy’s voice had an uncharacteristic quaver. He was more worldly than Lewis Powell—Kennedy knew many gay people—but he was also a conservative man by most definitions of that term. A devout and observant Catholic, he needed no instruction in the religious and moral prohibitions on homosexual conduct. He was, simply, a man who had been transformed by the changing world around him.

  “We granted certiorari to consider the constitutional claims presented, including the question whether Bowers v. Hardwick should be overruled,” he said, then quoted a line from that opinion: “The issue as presented is whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” But that framing of the question, Kennedy said, “demeans the claim put forward, just as it would demean a married couple if it were said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that do prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes seek to control a personal relationship that is within the liberty of persons to choose without being punished as criminals.” The nation, he went on, “has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.” This was autobiography, for Kennedy’s own life had been shaped by those beliefs—but then he said those rules cannot prescribe what the Constitution commands for all.

  The next part of the opinion—the key part—displayed the influence of Salzburg in Kennedy’s jurisprudence. Bowers made “sweeping references” to long-standing prohibitions on sodomy in Western civilization. These did not, however, “take account of authorities in an opposite direction,” Kennedy said, “including the decision of the European Court of Human Rights in a case called Dudgeon v. United Kingdom. That decision, with facts like Bowers and the instant case, held that laws prescribing this sort of conduct are invalid under the European Convention on Human Rights.” The pre-Salzburg Kennedy—even the pre–Bush v. Gore justice—would never have made such a reference.

  As the tension rose in the courtroom, Kennedy finally announced the holding on the case: “The instant case requires us to address whether Bowers itself has continuing validity. We conclude the rationale of Bowers does not withstand careful analysis, Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers versus Hardwick should be and now is overruled.”

  There was no mistaking the significance of Kennedy’s opinion. The point was not that the Court was halting sodomy prosecutions, which scarcely took place anymore. Rather, the Court was announcing that gay people could not be branded as criminals simply because of who they were. They were citizens. They were like everyone else. “The petitioners are entitled to respect for their private lives,” Kennedy wrote simply. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” The people who had devoted their lives to that cause understood precisely what had happened, which was why, to a degree unprecedented in the Court’s history, the benches were full of men and women sobbing with joy.

  Photo Insert

  Photo 1

  On September 6, 2005, the justices lined up on the steps of the Court to greet the casket of William H. Rehnquist. From the top, John Paul Stevens (in bow tie), Sandra Day O’Connor, Antonin Scalia, Clarence Thoma
s, Ruth Bader Ginsburg, and Stephen G. Breyer. Anthony M. Kennedy was in China, David H. Souter in New Hampshire. In the upper right corner is John O’Connor, Sandra’s ailing husband.

  Photo 2

  Seven of Rehnquist’s former law clerks and one former administrative assistant carried his casket. John G. Roberts Jr., who worked for the then-associate justice in 1980–81, is second in line on the right.

  Photo 3

  O’Connor weeps as Rehnquist, her friend of more than fifty years, returns to the Court for a final time.

  Photo 4

  They served together from 1994 to 2005—the longest period without change in the history of the nine-justice Court. Top row, from left: Ginsburg, Souter, Thomas, Breyer. Bottom row: Scalia, Stevens, Rehnquist, O’Connor, Kennedy.

  Photo 5

  On June 14, 1993, after a tortuous search, President Clinton introduces Ginsburg, his first nominee.

  Photo 6

  Breyer, Clinton’s second nominee to the Court, in 2006.

  Photo 7

  Stevens, at a speech in Chicago, in 2005.

  Photo 8

  Souter in 2003.

  Photo 9

  Thomas at the Ave Maria School of Law in 2004.

  Photo 10

  Scalia, with a characteristic gesture, in 2006.

  Photo 11

  Souter, haggard and drained, leaves the Court on December 12, 2000, the day of Bush v. Gore, the case that nearly prompted him to resign.

  Photo 12

  International travel transformed the outlooks of several justices. O’Connor with Chinese president Jiang Zemin in Beijing in 2002. Inset: Kennedy in the Hague in 2004.

  Photo 13

  A frail Rehnquist rose from his sickbed to administer the oath of office to President Bush on January 20, 2005.

  Photo 14

  President Bush introduces Roberts as his nominee to replace O’Connor on July 19, 2005. To the side are Roberts’s wife, Jane, and daughter, Josephine. His son, Jack, is imitating Spider-Man.

  Photo 15

  On September 29, 2005, at the White House, Stevens swears in Roberts as the seventeenth chief justice of the United States.

  Photo 16

  Samuel A. Alito Jr. arrives for the hearing with his wife, Martha-Ann.

  Photo 17

  Alito at his confirmation hearing on January 11, 2006.

  Photo 18

  Martha-Ann breaks down in tears at the hearing as Senator Lindsey Graham describes the attacks against her husband.

  15

  “A LAW-PROFESSION CULTURE”

  Not everyone was pleased by the ruling in Lawrence v. Texas. The case turned out to be a critical moment in the culture wars. Justice Kennedy’s opinion was hailed on major editorial pages, in law schools, in big American cities, and in foreign capitals. But those voices, as Justice Scalia was quick to point out, were not the Court’s only constituency. In the struggle between elite opinion and popular will, there were no guaranteed winners.

  Lawrence cemented the breach between Kennedy and Scalia. Born within a few months of each other and nominated by the same president only a year apart, the former law school contemporaries and jogging partners had been heading in opposite directions for some time, but the post–Bush v. Gore Kennedy became unrecognizable to Scalia. Indeed, in his opinion for the Court in Lawrence, Kennedy seemingly went out of his way to produce a catalog of everything in modern constitutional law that most repelled Scalia. Like Roe v. Wade, Lawrence v. Texas was based on the “right to privacy,” which Scalia did not believe existed. Kennedy drew at length from Casey, the 1992 landmark that he had produced in secret collaboration with O’Connor and Souter, most notably these oft-quoted lines: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In his dissent in Lawrence, Scalia sneered at what he called Casey’s “famed sweet-mystery-of-life passage.”

  Scalia did more than simply ridicule Kennedy’s words. Lawrence reflected what Scalia, as an originalist, most despised—a Court that shifted according to contemporary trends rather than by the immutable rules set down by the framers. But Scalia made a deeper observation. For all of Kennedy’s talk about how the world had changed since 1986, Scalia knew that many Americans—perhaps even most of them—shared his own revulsion for homosexuality. The decision in Lawrence did not spring from anything close to unanimous public opinion on the issue; rather it sprang from one kind of opinion. “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct,” Scalia wrote in his dissent, adding, “The Court has taken sides in the culture war.”

  Scalia knew that the public—the real public—was on his side on at least some issues, perhaps even most of them, but especially about the clear subtext of the Lawrence case—gay marriage. Kennedy, wary of pushing his argument too far, had said pointedly in his majority opinion that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

  But Scalia shot back with even greater directness: “Do not believe it…. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.” True to Scalia’s prediction, just five months later, with heavy reliance on the Lawrence precedent, the Supreme Judicial Court of Massachusetts held that gay people must be allowed to marry, too.

  By that point, Kennedy had decided to press forward on an equally controversial issue—the death penalty.

  Although influenced by his summers in Salzburg, Kennedy wasn’t even the most ardent internationalist on the Court. Breyer was.

  In the way that actors once sought the perfect mid-Atlantic accent, Breyer found the perfect mid-Atlantic life. After graduating from Stanford, he won a Marshall Scholarship to study at Oxford. He returned to the States for Harvard Law School, then moved to Washington to serve as a law clerk to Justice Arthur J. Goldberg. There he met a young Englishwoman named Joanna Hare, who was then an assistant in the Washington office of the London Sunday Times. She came from an aristocratic (and wealthy) British family; her father was John Hare, 1st Viscount Blakenham, a British peer and statesman who served as a leader of the Tory Party in the 1950s and 1960s. The couple married in England, and Joanna Breyer later became a psychologist, treating young patients and their families at the Dana-Farber Cancer Institute in Boston. ( Justice Breyer was also fluent in French, a fact that, given the relationship between the Bush administration and France, he did little to advertise.)

  At Harvard Law School, on the First Circuit Court of Appeals, where he served from 1980 to 1994, and on the Supreme Court, Breyer eagerly sought the friendship of his counterparts in other countries. He was the first justice in modern times to invoke foreign law as an aid to interpreting the American Constitution. He was cautious at first. In 1999, the Court refused to hear the appeal of a prisoner who argued that spending more than two decades on death row amounted to cruel and unusual punishment, in violation of the Eighth Amendment. Breyer wrote a brief dissent from the denial of certiorari, which was the kind of opinion that had little significance compared with, say, a majority opinion of the Court; such writing was a traditional way for justices to try out new ideas. So in his dissent in Knight v. Florida, Breyer quoted legal opinions from Jamaica, India, Zimbabwe, and the European Court of Human Rights to observe that “a growing number of courts outside the United States…have held that lengthy delay in admin
istering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.” Breyer carefully noted that these views could not bind American courts, but he thought their observations worthy of note. Still, even this cautious invocation of foreign law drew a swift rejoinder from Clarence Thomas, who said in a brief opinion that the Supreme Court should never “impose foreign moods, fads, or fashions on Americans.” With that brief exchange, the battle was on.

  It was Kennedy who took the concept to the next level. The issue was one that mattered a great deal to his foreign colleagues. On October 13, 2004, the Court heard argument on whether or not states could execute minors—that is, murderers who committed their crimes before they turned eighteen.

  The issue was especially contentious because, as with Lawrence, the Court had considered it just a few years earlier. In 1989, Scalia had written in Stanford v. Kentucky that states could execute sixteen-and seventeen-year-old offenders. But in 2003, the Missouri Supreme Court had ruled in Roper v. Simmons that changes in the law since Stanford meant the Constitution now forbade the execution of juvenile offenders.