The Nine

by Jeffrey Toobin

  As in most other terms, the justices disposed of the easy cases in its first few months. Year in and year out, about 40 percent of the Court’s opinions are unanimous, and many more draw just a mild dissent or two. During the first months of Rehnquist’s absence, the Court did a pretty good job of avoiding controversy, with the single exception of Kennedy’s opinion in Roper v. Simmons, which invoked foreign law in striking down the death penalty for juvenile offenders. The case had been argued on the morning of October 13, Rehnquist’s last day on the bench, and the decision was handed down on March 1. The chief, silent once more in a major case—one that amounted to yet another demonstration that the Court’s center of gravity had moved to the left—joined Scalia’s dissent.

  O’Connor and Kennedy were the chief beneficiaries of this ideological shift, as they controlled the outcome of more cases and won assignments from Stevens for such opinions as Lawrence, Grutter, and Hamdi. But in his customary quiet way, David Souter was also swept up in the change, which helped pull him out of his post–Bushv. Gore funk.

  Souter had minimal financial obligations and a lifestyle that hovered somewhere between modest and ascetic. He had no wife, no children, a venerable family homestead in New Hampshire, and a small apartment in an unfashionable neighborhood in Washington. He worked about seventy hours a week, and his main hobby was jogging. In the annual disclosures that the justices are required to file, Scalia reported being reimbursed in 2003 by universities and bar associations for twenty-one trips, several of them abroad; O’Connor came in second among the justices with nineteen. Souter was last, as usual, with none. He also reported no outside income from speeches or publications and no gifts.

  Still, Souter’s New England frugality was one factor that kept him on the Court when he thought about resigning after Bush v. Gore. Years earlier, he had invested in local bank stocks in his home region, and after a series of takeovers, the value of his shares had soared. By 2003, he reported cash and stock assets of between $5.2 million and $25.5 million, nearly tying with Ginsburg for the highest on the Court. But Souter was also acutely aware that federal judges were entitled to retire with full salary after fifteen years on the bench, a benefit that would become available to him in 2005, when he would be sixty-six. A resignation before that point would forfeit his full pension, so he told friends he thought it would be unwise to forgo that bounty. It was characteristic of his quirky personality that he would worry about his pension when he had little need for it—and almost nothing to spend it on—but Souter’s colleagues were used to his eccentricities.

  In fact, Souter’s gentle charm made him probably the best liked of the justices among his peers, and he returned their affection, which was one reason he stayed on. He was a special favorite of the women justices, who took an almost maternal interest in him, though he was only six years younger than Ginsburg and nine years younger than O’Connor. Ginsburg often invited him to sample her husband Marty’s gourmet cooking and to attend events where they could share their love of classical music. She also often noted proudly that she and Souter, unlike the rest of their colleagues, never engaged in caustic or bitter commentary in their dissenting opinions.

  O’Connor had a more direct agenda with Souter. She wanted to get him married off. According to her biographer Joan Biskupic, O’Connor boasted about her matchmaking skills, claiming she had once been known as the “Yenta of Paradise Valley,” her posh neighborhood in Phoenix. She invited Souter to many of her parties, including one, early in Souter’s tenure, that featured “Fajitas and frivolity…Dress: Country Western or Effete Eastern.” Over the years, practically everyone Souter knew in Washington, including First Lady Barbara Bush, tried to fix him up. None succeeded. One of his fellow justices once prevailed on Souter to take a woman out to dinner, and she reported back that she thought the evening had gone very well—until the end. Souter took her home, told her what a good time he had, then added: “Let’s do this again next year.”

  Washington remained anathema to him, not least because of an incident that took place on April 30, 2004. Souter was taking his nightly jog from his home near the Court to Fort McNair, an old military base on the Potomac, and on his way home, he was assaulted by two men. (The reason for the attack was never determined.) He received a terrible beating, requiring treatment at a local hospital for cuts and bruises, but with typical doggedness still showed up for work the next morning—a Saturday. If any event might have prompted him to flee to New Hampshire for good, this would have been it, but he remained. His fifteenth anniversary came and went without further discussion of retirement.

  A clue to the source of Souter’s revival on the Court came shortly after the death of Gerald Gunther, the Stanford law professor and biographer of Judge Learned Hand. Gunther and Souter were not close friends, but Kathleen Sullivan, the dean at Stanford, knew that the justice admired Gunther’s book, and she decided to invite him to speak at the funeral. (Souter’s secretary thought the idea was so unlikely that she laughed when Sullivan called.) But Souter said yes and made what was, in his seventh decade, the second visit of his life to California.

  Souter’s eulogy praised Gunther and Hand, but it really amounted to a short essay about “what anyone’s judging ought to be.” Hand had served from 1924 to 1961 on the federal court of appeals in New York, where his views resembled those of the moderate, careful jurisprudence of his friend John Marshall Harlan II, who was Souter’s other judicial hero. Souter spoke of “every judge’s common obligations: suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in playing one worthy principle against another, and the nerve to do it in concrete circumstances on an open page.” This was autobiography for David Souter, the cautious guardian of the right to privacy, the fierce advocate of strong national government (and unrelenting foe of Rehnquist on federalism), the painstaking, even slow, judicial craftsman.

  His eulogy for Gunther also offered a lesson in why Souter joined O’Connor and Kennedy in moving left after 2000. Souter, who recoiled from extremism or “clear-edged categories” of any kind, had a visceral horror of such conservative undertakings as the Constitution in Exile. While centrism was a political philosophy for O’Connor, it was more a matter of temperament for Souter; still, it turned out the two justices were merely taking different paths to a similar jurisprudential destination.

  The case that summed up Souter’s achievement as a justice was one that was argued and decided during Rehnquist’s illness. The issue in MGM v. Grokster concerned one of the most vexed issues in copyright law—whether the maker of software that can be used for copyright infringement should be held liable if its product is in fact used that way. Billions of dollars were at stake in the case because virtually all video and audio entertainment can be illegally copied and distributed on software like Grokster. Would ruling for the software maker condemn movie studios to wanton piracy? Would ruling for the studio stifle technological innovation? Before the case was heard, it was widely predicted that the Court would split in the face of those difficult questions and make the law even more complicated than it already was. But Souter managed to unite the Court behind his opinion, which held that software makers could be liable only if they took affirmative steps to encourage infringement. It was a largely apolitical decision that managed to draw support from left and right, creators of entertainment and distributors of it, artists and entrepreneurs—and it was written by a man who worked exclusively with a fountain pen. Souter’s opinion showed a sophisticated understanding of the markets for both technology and entertainment—from a man who only in 2003, while presiding over a wedding, learned the name of a singing group that was more than familiar to his colleagues, the Supremes.

  Still, for all his popularity on the Court, Souter remained a mystery even to those who knew him best. Part of his appeal was that, peculiar though he was, Souter was comfortable with himself, even capable of having fun with his distinctive place in the Court and American life. It was,
for example, a running joke at the Court that outsiders frequently mistook Souter and Breyer for each other. No one could really understand why this happened, because the two bore little resemblance. One day when Souter was making his usual solo drive from Washington to New Hampshire, he stopped for lunch in Massachusetts. A stranger and his wife came up to him and asked, “Aren’t you on the Supreme Court?”

  Souter said he was.

  “You’re Justice Breyer, right?” said the man.

  Rather than embarrass the fellow, Souter simply nodded and exchanged pleasantries, until he was asked an unexpected question.

  “Justice Breyer, what’s the best thing about being on the Supreme Court?”

  The justice thought for a while, then said, “Well, I’d have to say it’s the privilege of serving with David Souter.”

  During the spring of 2005, when the justices looked for clues about Rehnquist’s prognosis, the most important event for the Court involved a case that was never accepted for review. The justices did not write a single opinion in the matter of Terri Schiavo, but no case that year had a greater impact on the Court as an institution.

  By the beginning of 2005, Schiavo’s story was a familiar one in Florida, if not in the rest of the country. She became suddenly ill on February 25, 1990, and her heart briefly stopped beating, and she went into a deep coma. In 1998, her husband and guardian, Michael Schiavo, went to the state court in Florida, asking that her feeding tube be removed because she was in a persistent vegetative state. Michael said that based on conversations with his wife before she was stricken, he believed she would not have wanted to be kept alive in such circumstances. A judge agreed and ordered the tube removed, but Terri’s parents, Robert and Mary Schindler, argued that her condition was not so dire and that she might someday recover. Years of bitter court fights followed.

  The struggle over Terri Schiavo was at once a terrible family quarrel and a proxy battle over abortion and the “right to life.” It was also, curiously, a recapitulation of the struggle in Bush v. Gore in Florida. Throughout the process, the more Democratic-leaning courts in the state found in Michael Schiavo’s favor, and the Republican-dominated state legislature, along with Governor Jeb Bush, took the parents’ side. In 2003, the state even passed a law authorizing Governor Bush to order Terri’s feeding tube to be reinserted—and the state supreme court, the same justices who had ruled twice in Gore’s favor, declared that law unconstitutional.

  The final crisis in the case was set off when a Florida judge, George Greer, ruled on February 25, 2005, that he would permit no more stays and ordered the tube removed on March 18. In front of the hospice in Pinellas Park where Schiavo was being treated, a series of protests and prayer vigils began under the leadership of Rev. Patrick Mahoney, who was affiliated with a group called the Christian Defense Coalition. (Mahoney was a veteran of the antiabortion movement and many conservative causes; in 1994, he had persuaded Paula Jones to file her sexual harassment lawsuit against Bill Clinton.)

  Schiavo’s feeding tube was removed on the afternoon of March 18. With their options in Florida exhausted and Terri likely to die in a few days, Schiavo’s parents turned to Washington, specifically to Tom DeLay, the majority leader in the House of Representatives. An ardent opponent of abortion rights and a fierce partisan known as the Hammer, DeLay engineered an extraordinary legislative feat with remarkable speed. Congress had gone into recess, but DeLay managed to gather a quorum of 218 representatives on Sunday, March 20, to pass a bill designed to prevent the removal of Schiavo’s feeding tube; the Senate did, too. President Bush cut short a vacation at his Crawford, Texas, ranch to fly across the country to sign the bill, which he did at 1:08 a.m. on Monday, March 21. Later that day, Bush said, “It is wise to always err on the side of life.”

  By its specific terms, the law—known formally as An Act For the Relief of the Parents of Theresa Marie Schiavo—instructed the federal district court in Florida to give the case yet another hearing “relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.” The law further stated that the district court “shall entertain and determine the suit without delay.” So on the very day the law was signed, Judge James D. Whittemore held a hearing in Tampa on the case, and the next day he rejected the Schindlers’ attempt to reinsert the feeding tube. The parents appealed to the Eleventh Circuit and then to the U.S. Supreme Court, which on March 24 refused to intervene. By this time, the case had been considered by nineteen judges in six state and federal courts, and between 2001 and 2005 the U.S. Supreme Court had declined to hear the case five times. Terri Schiavo died on March 31.

  Her death only increased the rhetorical fervor. On the day of her death, DeLay threatened to impeach the judges who presided over her case, including the Supreme Court justices. “The time will come for the men responsible for this to answer for their behavior,” DeLay said. “We will look at an arrogant, out-of-control judiciary that thumbs its nose at Congress and the president.”

  Four days later, Senator John Cornyn, a Republican from Texas, made an even more incendiary statement. Just weeks earlier, there had been a pair of horrific attacks on judges and their families. In Chicago, a deranged litigant before federal judge Joan Lefkow broke into her home and murdered her husband and mother, and in Atlanta, a defendant in a rape case killed the judge in his trial and two others in the course of an escape attempt. In a speech on the Senate floor, Cornyn suggested the attacks on judges might have taken place because of decisions like Schiavo. “I don’t know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country,” Cornyn said. “I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in violence.”

  The justices watched these developments—the litigation, the frenzied rush to pass a law for Schiavo’s purported benefit, the venomous attacks on the judges—with consternation. The assaults on the judges, and Cornyn’s ugly reference to them, left a particularly strong impression because, unbeknownst to the public, both O’Connor and Ginsburg had also received recent death threats. One of the messages, which was posted in a Web chat room, said, “Okay commandoes, here is your first patriotic assignment…an easy one. Supreme Court Justices Ginsburg and O’Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom…. If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.” Ginsburg, with her mordant view of human nature, shrugged the whole thing off.

  O’Connor did not. To her, the Schiavo case marked only the latest outrage from the extremists who she believed had hijacked her beloved Republican Party. The hiring of John Ashcroft, the politicized response to the affirmative action case, the lawless approach to the war on terror, and the accelerating disaster of the war in Iraq all appalled O’Connor. (As someone who prized order, O’Connor used a favorite epithet, “a mess,” to describe the war. This judgment was especially painful for her because her only close friend serving in the administration was Donald Rumsfeld, the architect of the war.) But in O’Connor’s list of grievances against Republicans in general and Bush in particular, the Schiavo case was the worst.

  O’Connor’s radar for the political center worked flawlessly in the Schiavo controversy. Though members of Congress in both parties thought they were doing the public’s bidding by scrambling to pass the Schiavo bill, polls revealed widespread revulsion at the way Washington intervened in the family tragedy. Around 70 percent of the public disapproved of Bush’s and Congress’s handling of the Schiavo matter. According to polls, most people objected to the Schiavo legislation for the same reason majorities generally supported women’s right to choose abortion—that the decision wa
s one for individuals and families, not the government.

  This view appealed to O’Connor’s libertarian streak, but the core of her outrage had a different source. To O’Connor, the real danger was the idea that, with this law, Congress was trying to dictate to the courts how they should rule. In other words, worse than telling a family what to do was telling judges what to do.

  The subject had long been a theme of her foreign travels. She saw Ukrainian lawyers trained by her CEELI initiative lead the Orange Revolution of 2004, where that nation’s Supreme Court voided a corrupt national election. She mourned the loss of judicial independence in Zimbabwe, where the regime of Robert Mugabe sent thugs into its Supreme Court, ignored the court’s rulings, and forced some justices off the bench. She frequently mentioned that in Russia presidential guards had killed the chief judge’s pet cat. In a little-noticed speech in 2003, at the Arab Judicial Forum in Bahrain, O’Connor had implored nascent democracies to embrace the cause of judicial independence. “It is the kernel of the rule of law, giving the citizenry confidence that the laws will be fairly and equally applied,” she said. “Judicial independence allows judges to make decisions that may be contrary to the interests of other branches of government. Presidents, ministers, and legislators at times rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquely positioned to reflect on the impact of those solutions on rights and liberty, and must act to ensure that those values are not subverted.”

  With Schiavo, O’Connor saw the threat to judicial independence not in some far-off capitol but in the one across First Street from her own office. Bush and his allies were undermining the separation of powers in the war on terror, ignoring the rule of law in Guantánamo, and undermining judges in Florida—and O’Connor wasn’t going to watch in silence as it happened. Later in 2005, she took her indignation on the road, giving fiery speeches on the subject of judicial independence.