The Nine

by Jeffrey Toobin

  Stevens did not presume that his own service as an intelligence officer in World War II gave him the wisdom to second-guess the Bush officials’ conduct of intelligence operations at Guantánamo. But his military experience—combined with his quiet self-confidence—made him harder to intimidate on the subject of military necessity. Many of the darkest moments in the history of the Court took place when the justices deferred too much to the purported expertise of the executive branch on matters of national security. During and after World War I, the Court upheld several dubious prosecutions of political dissidents on the ground that their advocacy put the nation in danger.

  Most notoriously, during World War II the justices upheld the exclusion of American citizens of Japanese ancestry from the West Coast in Korematsu v. United States. (Fred Korematsu himself submitted an amicus brief in support of Rasul.) Stevens knew that history and was determined not to replay it. And the disclosures that took place while the cases were pending—about Abu Ghraib and the torture memo—made the credibility of the administration’s representations to the Court much more suspect. Suddenly, it was the Bush administration itself, not the plaintiffs’ leftist lawyers, that looked outside the mainstream of legal and political opinion. For a Court majority determined never to stray too far from what the public believed, that change was crucial.

  So, it turned out, was the preposterousness of the administration’s key argument in Rasul. Olson had maintained that the navy base in Guantánamo was really Cuban soil and to allow a lawsuit there was inviting litigation on a foreign battlefield. But as Stevens put it in his opinion, “By the express terms of its agreements with Cuba, the United States exercises ‘complete jurisdiction and control’ over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.” The entire reason that the military took the detainees to such a remote outpost was because the base offered total freedom from outside interference. Allowing lawyers to visit prisoners in Guantánamo and letting them conduct litigation offered no risk at all of escape or disruption—something that could not be said for many prisons within the United States. Even Scalia’s dissent, which was joined by Rehnquist and Thomas, could not work up much passion on the issue.

  The reason for Scalia’s relative reticence became apparent in Hamdi, which was handed down on the same day as Rasul. There the repudiation of Bush’s position was even more complete, and the author of the majority opinion was O’Connor, that reliable vector for the views of most Americans. Her opinion was scathing, a testament to her growing estrangement from the Bush administration. Her impatience with pious lectures on national security was palpable: “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

  O’Connor had become an evangelist for the cause of judicial independence, and she used Hamdi to remind the administration that this Court—her Court—would never become a rubber stamp: “The position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens.” If there was any doubt what O’Connor meant, she waved the bloody shirt of one of the worst moments in the Court’s history—by citing Korematsu itself—to drive home her point.

  Remarkably, O’Connor’s view was the moderate one on the Court. She said that Hamdi could not be detained without a hearing of some kind but that he did not necessarily have to receive the full protections afforded a criminal defendant. Scalia, of all people, wrote a dissenting opinion (joined by Stevens, an unfamiliar bedfellow) saying that the Bush administration’s entire concept of detention of enemy combatants was unconstitutional for American citizens.

  Scalia said O’Connor had been too soft on the Bush administration, arguing that Hamdi should be charged with a federal crime—or released immediately. “The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal,” Scalia the originalist added. “Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.” Only a single justice, Thomas, accepted the administration’s position.

  Rasul and Hamdi were notable also for the fact that on these most crucial cases about the nature of executive and judicial power, the chief justice did not write a majority opinion, dissent, or concurrence. Rehnquist joined Scalia’s dissent in Rasul and O’Connor’s opinion for the Court in Hamdi; Rehnquist only wrote the majority opinion in Padilla, which resolved that case on procedural grounds.

  The relative invisibility of a chief justice on matters of such magnitude would be unusual in any circumstances, but it was especially odd for Rehnquist to remain silent on this particular subject. Since his days in the Justice Department during the Nixon years, and then on the Court, Rehnquist had been an outspoken proponent of executive power versus the other branches of government. Like federalism, it was a signature issue for him. Rehnquist signed on to O’Connor’s harsh scolding of Bush, but did he really believe it? His silence was a mystery.

  In truth, Rehnquist was a tired old man in the spring of 2004. And he had grown cynical about the work of the Court. Over the years, his opinions had become more terse and cryptic because he had come to think that only the results, not how the justices explained them, really mattered. As Rehnquist told one colleague, who was shocked by the chief’s gloom, “Don’t worry about the analysis and the principles in the case. Just make sure that the result is a good one this time around—because those principles you announce will be ignored in the next case.” The chief didn’t write in Rasul or Hamdi because he didn’t think the opinions mattered very much; only the votes did.

  Increasingly, Rehnquist didn’t have the votes. It was now the Rehnquist Court in name only. Since Bush v. Gore, the chief had failed to command a majority in virtually all the important issues before the Court—affirmative action, gay rights, the death penalty, and, now, the legal implications of the war on terror. Even the so-called federalism revolution had dwindled, if not to insignificance, then to modest evolution. The Lopez case had suggested that the Court really might cut back on the authority of Congress to pass laws under the Commerce Clause; the Court did no such thing. The Constitution in Exile remained in exile. Thanks to Rehnquist, the Court had limited the ability of Congress to pass laws that allowed the states to be sued in federal court—a real achievement, to be sure, but also, in the history of the Supreme Court, an arcane one. Likewise, there had been a real, but also modest, movement to the right on church-state issues. The Court was clearly set in its ways, and on the issues that mattered most to the public, as well as to the justices themselves, Rehnquist’s own views held little sway.

  The composition of the Court hadn’t changed, either. It had been ten years since Breyer replaced Blackmun—a decade without a new justice—which amounted to the longest period of stability in the history of the nine-justice Court.

  In keeping with the collegial spirit of Rehnquist’s Court, the spouses of the justices held a surprise party on January 23, 2003, to celebrate the new record for the nine. (There were no changes from 1812 to 1823, but the law provided for only seven justices at that time.) In 2004, Stevens was eighty-four, the oldest among them, but he enjoyed robust health and no affinity for the president who would appoint his replacement. Rehnquist, closing in on eighty himself, was the most likely to leave. He had spoken candidly of his belief
that justices should hand their seats to the party of the presidents who appointed them, and George W. Bush’s conservative politics reflected his own.

  But Rehnquist didn’t want to retire. He was a widower who lived in a small town house in suburban Virginia. His three children were long grown. He liked his job and his colleagues. His health was satisfactory, if not robust. With his trademark directness, Rehnquist would point out the grim truth about retirees from the Supreme Court: all they did was die, usually sooner rather than later. He had come to enjoy the administrative side of the job, and he was good at it. If he had lost some interest in the intricacies of Supreme Court doctrine or come to doubt the importance of each word he left behind in the Court’s archives, the benefits of the job still outweighed the appeal of retirement. The choice came down to being chief justice of the United States or sitting at home by himself. It wasn’t a difficult call.

  Besides, Rehnquist had already missed a clear window for Bush to name his successor. By the end of the term in 2004, the presidential campaign was well under way. The Democrats were sure to stall any nomination until after the election, which promised to be close. A traditionalist like Rehnquist would never resign at such a time, unless his health forced his hand. So he retreated, as usual, to his modest summer home in Vermont, where he puttered around, looking for a new book subject. His most recent work, Centennial Crisis, a typically lucid and evenhanded study of the disputed presidential election of 1876—his own Bush v. Gore legacy—had been published in the spring. He returned to Washington in time for his eightieth birthday on October 1, 2004, and to await the beginning of the new term, on the first Monday, three days later.

  There was a problem. Rehnquist had a sore throat that he couldn’t shake. The Court heard eleven oral arguments in the first two weeks in October, and by the last one, an immigration case called Clark v. Martinez on October 13, the chief’s voice had faded to a husky rasp almost unrecognizable from the voice in which he had announced the Padilla decision in June. With a three-week break until the next set of arguments, Rehnquist decided to visit a doctor.

  The diagnosis did not take long. He had anaplastic thyroid cancer, an especially aggressive and almost invariably fatal form of the disease. (In recent years, Rehnquist had for the most part cut back to a single cigarette a day, but a lifetime of smoking almost certainly contributed to his illness.) On Friday, October 22, he checked into Bethesda Naval Hospital and underwent a tracheotomy, which involved placing a tube through a hole in his throat to help him breathe. The next Monday, October 25, the Office of Public Information at the Court put out a statement that Rehnquist had “thyroid cancer” and was “expected to be back on the Bench when the Court reconvenes on Monday, November 1.” (The most common kind of thyroid cancer is generally curable, and the announcement did not say what kind he had.)

  But Rehnquist did not even leave the hospital until October 29, and he was clearly in no condition to return to the bench. On November 1, he released a statement that said his original prediction of a return was “too optimistic” and that he would be receiving “radiation and chemotherapy treatments on an outpatient basis.” Unlike the first announcement, this one came directly from Rehnquist’s chambers, not the public information staff, illustrating how few people at the Court knew anything about his condition. But the length of Rehnquist’s absence and the nature of his treatment left the impression, which was correct, that he had the devastating, anaplastic version of the disease. On the morning of November 1, John Paul Stevens, the senior associate justice, presided over the arguments, leaving the center seat conspicuously and ominously vacant.

  As the nation voted the following day, Rehnquist’s colleagues inferred what the chief justice already knew—that he was dying.

  19

  “A GREAT PRIVILEGE, INDEED”

  On November 2, 2004, George W. Bush won a narrow victory over John Kerry, and this time the president needed no assistance from the Supreme Court. If Bush had lost, he would have joined Jimmy Carter as the only presidents in American history to serve full terms without having the chance to make an appointment to the Court. But the sudden announcement of Rehnquist’s illness on the eve of the election made clear that Bush would soon have such an opportunity. It took less than a day for the political tension surrounding the appointment and confirmation process, which had been long dormant, to explode.

  Also on that Election Day, Arlen Specter won his fifth term as a senator from Pennsylvania. A noted curmudgeon, longer on smarts than charm, Specter belonged to a vanishing species in Congress, the moderate Republican. When he was first elected, in 1980, the Senate abounded in such figures, like Robert Packwood, Mark Hatfield, Lowell Weicker, Charles Mathias, and John Heinz, but by 2004 the rightward tilt of the national GOP had pushed the number of moderates almost to insignificance. Specter had moved so far away from the base of his party that he drew a conservative challenger in a Republican primary, who came much closer to beating him than the Democrat did in the general election.

  On Wednesday, November 3, Specter held his traditional post–Election Day news conference in Philadelphia. He was asked about possible Supreme Court appointments, an issue that suddenly had special resonance because Specter was finally in line to become chairman of the Senate Judiciary Committee. Repeating a view he had expressed many times, Specter told the reporters he regarded the protection of abortion rights established by Roe v. Wade as “inviolate,” and he suggested that “nobody can be confirmed today” who didn’t share that opinion. After making the statement, Specter didn’t give it a second thought.

  But Specter was about to learn once more how much his party had changed. Virtually overnight, as news of Specter’s statement about Roe spread, the conservative groups that had led the primary challenge against Specter, such as Focus on the Family, demanded that he be denied the chairmanship. Protesters chanted outside his office, and telephone calls inundated the Senate switchboards. One Republican senator even added a new option to the automatic phone-answering service in his office: “Press 3 if you’re calling about who should be chairman of the Senate Judiciary Committee.” On November 17, Specter was forced to implore his Republican Senate colleagues not to withhold the prize for which he had waited so long. Following separate meetings with the Senate leadership and the other Republicans on the Judiciary Committee, Specter was informed he could have the chairmanship—with conditions.

  At a press conference the next day, Specter made the terms public. Introduced by Orrin Hatch, who was barred by term limits from continuing as Judiciary chairman, Specter explained the deal. “I have not and would not use a litmus test to deny confirmation to prolife nominees,” Specter said in the weary monotone of a Soviet prisoner forced to confess his ideological errors. “I have voted for all of President Bush’s judicial nominees in committee and on the floor, and I have no reason to believe that I’ll be unable to support any individual President Bush finds worthy of nomination.”

  Specter had survived to serve as chairman of the committee, but the message to him was unmistakable. Conservatives had waited fourteen years for a Republican president to nominate someone to the Supreme Court, and this time they wanted a true believer. Seven of the nine current justices had been appointed by Republicans—and still the Court continued to disappoint conservatives. The core of the president’s party would accept only Supreme Court nominees who embraced the conservative line, especially on Roe v. Wade, Arlen Specter notwithstanding. Even before there was a vacancy, much less a nomination, conservative activists like James Dobson and Jay Sekulow, empowered by their critical role in Bush’s reelection, were demonstrating precisely what mattered most to them—control of the Supreme Court.

  Two months later, the world saw William Rehnquist for the first time since his illness had been announced in the fall. On January 20, 2005, Rehnquist made an unsteady journey down the platform steps in front of the Capitol to administer the oath of office to George W. Bush. With his administrative assistant, Sally Rider
, closely monitoring his procession, Rehnquist arrived well after his colleagues and the other guests had taken their places. Chemotherapy had reduced his hair to a few wisps, and the tracheotomy tube, which was still in place, made his voice hard to hear, but the chief had the fortitude to complete his duty. After Bush repeated, “So help me God,” an affectation said to have been added to the constitutional oath by George Washington and recited ever since, Rehnquist told the president, “Congratulations.” This was a different salute from the ambiguous “Good luck” he offered to Bill Clinton on January 20, 1997, a week after the Court heard arguments in the Paula Jones case. Rehnquist left before Bush’s inaugural address, having been present for only thirteen minutes.

  No one studied the chief more carefully than the other eight justices. Only Stevens and O’Connor had been allowed to make brief visits to his home. The others had not seen him at all. Rehnquist listened to tapes of the oral arguments, cast his votes by memo, and continued to make assignments from home. In his absence, Stevens presided over the conferences and the oral arguments. Even in good health, Rehnquist preferred to communicate by memo with all but his immediate staff, so the Court functioned normally even though he was not on the premises. Rehnquist had a strong sense of responsibility about his obligations, and he was meticulous about making sure that the Court did not suffer from his illness. He gave no hint if he was thinking of resigning.