The Nine

by Jeffrey Toobin

  Your reporter, an up-and-coming “gotcha” star named Laurel J. Sweet, asked me (oh-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said “That’s Sicilian,” and explained its meaning—which was that I could not care less.

  That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini’s The Italians: “The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.’…How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “ ‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene—especially when made by an “Italian jurist.” (I am, by the way, an American jurist.)

  To be sure, there was something endearing about Scalia’s unique mix of élan and erudition. He was a justly popular public speaker. But over two decades, Scalia failed to charm his most important audience, his colleagues, and his moxie never translated into influence.

  In Roberts and Alito’s first year, there turned out to be only one blockbuster case—the appeal of the fortuitously timed decision that convinced Dick Cheney to support Roberts for chief justice. Once again, the justices would turn to the prisoners of Guantánamo Bay.

  Few cases had a more unlikely journey to the Supreme Court than Hamdan v. Rumsfeld. The primary instigators of the lawsuit were a small group of military lawyers who, at great risk to their careers, agreed to represent the detainees at Guantánamo. These lawyers, led by Will Gunn of the Air Force and Charles Swift of the Navy, proved to be dogged, if overmatched, in repeatedly challenging the actions of their superiors in the Department of Defense. For help, they turned to a thirty-three-year-old law professor at Georgetown, Neal Katyal, who had served briefly in the Clinton Justice Department after finishing a clerkship with Breyer. With minimal assistance and vastly more experienced adversaries, Katyal constructed a legal assault on the Bush administration’s legal position that changed constitutional history.

  In 2004, when the justices had first contemplated the case of the prisoners in Cuba, the Bush administration had argued that the case should have been thrown out forthwith, that the detainees were simply outside the reach of the American legal system, with no rights even to bring a case. The justices had rejected this claim in a pair of opinions that included O’Connor’s tart reminder that “a state of war is not a blank check for the President.” In response, the administration had unilaterally set up a system for allowing the detainees to challenge their incarcerations in abbreviated trials known as commissions. It was this system that the military lawyers, later joined by Katyal, were challenging. For their client, Katyal and his colleagues chose perhaps the least threatening prisoner taken from the battlefields of Afghanistan, Salim Ahmed Hamdan, who was accused of being Osama bin Laden’s driver but not a terrorist or even a fighter.

  The young professor had one important advantage in the argument on Tuesday morning, March 28—the extremism of the claims made by the Bush administration. (Katyal was making his first argument before the justices; his adversary, Paul Clement, the solicitor general, was making his thirty-fourth.) Clement argued that in authorizing a response to the attacks of September 11, Congress had implicitly suspended the writ of habeas corpus, something that had been done only four previous times in American history. It was a claim that nearly sent Souter flying over the bench.

  “Isn’t there a pretty good argument that a suspension of the writ by Congress is just about the most stupendously significant act that the Congress of the United States can take?” he asked. “And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?”

  Well, Clement replied, if we’re only talking about people outside the territory of the United States…

  “Now wait a minute,” Souter shot back. “The writ is the writ!”

  But in a Supreme Court without O’Connor, Hamdan would be a breathless wait to see which way Anthony Kennedy was going to vote. Scalia, Thomas, and Alito were likely allies of the administration; Stevens, Souter, Breyer, and Ginsburg would go the other way. (Roberts could not participate because he had already ruled in the case, on the Bush side, in the D.C. Circuit.)

  The case tapped into Kennedy’s deep interest in international law. Indeed, in just a few weeks Kennedy would be leaving for Salzburg and then, in 2006, for a round-the-world tour: Washington to Hawaii, for a speech before the American Bar Association; to Malaysia, to meet with the sultan, who was also a judge; on to Dubai for a conference of four hundred judges; and then to the Old Bailey, in London, where he would observe a murder trial; and finally back to Washington. The heart of the Bush administration’s argument before the Court in Hamdan was that the Geneva Conventions—the treaty that is at the core of international law and that the United States had long ago signed—did not apply to the prisoners at Guantánamo.

  “Well, let me put it this way,” Kennedy said to Katyal. “If we were to find that the Geneva Convention or other settled principles of international law were controlling here, why couldn’t we just remand to the D.C. Circuit and let it figure that out?”

  That might work, Katyal said.

  “Well, suppose we told the D.C. Circuit that the Geneva Convention or some other body of international law controls…?”

  Kennedy was tipping his hand. At conference, he joined the four liberals in striking down the Bush plans for Guantánamo—again. Stevens’s opinion for the Court, issued on June 29, the last day of the term, amounted to an even more thorough rebuke to the administration than the Court had issued two years earlier. The Pentagon could not write procedures for the military commissions unilaterally; Congress had to approve them as well. The Pentagon could not ignore the Geneva Conventions; the procedures had to comport with the treaty. The courts would not sit out the dispute, as Clement had urged, until detainees had actually been convicted and sentenced. The administration would have to start complying with the Constitution right away. Writing in his usual restrained style, Stevens made clear that he and his colleagues regarded the Bush position as something close to lawless. The Geneva Convention “is applicable here,” he wrote, and “requires that Hamdan be tried by a ‘regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’ ”

  The dissenters replied with rhetoric that reflected the Republican political campaigns of 2002, 2004, and 2006. Thomas said the decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy,” and suggested that it under-mined the nation’s ability to “preven[t] future attacks.” Joined by Kennedy, Souter, and Ginsburg, Breyer issued an unusually pointed and eloquent reply in a concurring opinion in which he quoted the famous words of his departed ally, O’Connor: “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’ ”

  As both sides in Hamdan recognized, the case was crucial, and not just because the detainees in Guantánamo Bay faced the possibility of execution by their American captors. The lawsuit was about defining the meaning of the Constitution in an age of terror—and with a changing Supreme Court. “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger,” Breyer wrote. “To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its fait
h in those democratic means. Our Court today simply does the same.”

  25

  PHANATICS?

  For many years, the Court had a tradition of holding a welcoming dinner for each new member, with the former junior justice acting as host. The practice fell into disuse in recent years because there had been so little turnover among the justices. Still, during the summer of 2006, Breyer said he wanted to revive the custom and have a dinner for Alito. The permanent staff members of the Court, with their usual reverence for tradition, took to the assignment with gusto—and even staged a full rehearsal dinner, just to make sure that the evening would be flawless.

  On Friday, October 6, a small ensemble from the Marine Corps band greeted the justices and their spouses in the Great Hall of the Court. It was on occasions like this one that the Court most felt like a family. Sandra and John O’Connor were there, as were the widows of Thurgood Marshall and Potter Stewart. At last, just before dessert, Breyer rose to give a toast.

  “Sam, we are here to welcome you,” Breyer said, “and we are very happy to have this dinner for you. But I have to warn you about something. Everyone here tonight is very nice to you. But they’ll turn on you. They’ll dissent from your opinions. They won’t sign on to your dissents. It’s a tough group.”

  In the flickering light of the candelabras, the guests exchanged puzzled looks.

  “What you need here is a friend,” Breyer went on. “You need someone who will stand by you—really stand by you, not like these people around the table.”

  At that moment, the door to the dining room swung open and a giant beast with green fur, purple eyelashes, and a Philadelphia Phillies jersey burst into the room. The Phillie Phanatic, mascot of Alito’s beloved baseball team, lumbered over to Alito, gave him a prolonged embrace, and then left the room, leaving raucous laughter in its wake.

  The welcoming dinner for Alito showed how the comradely spirit of the Rehnquist Court had survived the transition to a new chief. Roberts displayed the same genial manner with his new colleagues that he had before the Judiciary Committee. Courteous, even deferential, Roberts controlled the mechanics of the Court in the same evenhanded way that had made Rehnquist so popular among the justices. In conference, as before, everyone still had the chance to speak once before anyone spoke twice—and they did so at somewhat greater length than Rehnquist had permitted. Roberts also parceled out opinion-writing duties in the same fair-minded way that Rehnquist had, distributing the “dogs” and significant cases in roughly even numbers. In his annual message on the judiciary, the chief justice issued a passionate call to Congress to grant long-delayed pay increases for federal trial and appellate judges—a cause important to both liberal and conservative members of the Court. In speeches, Roberts repeated his pleas for judicial minimalism—narrow decisions endorsed by clear majorities (or, better yet, unanimous agreement) of the justices.

  But the good cheer—and the promises of incremental change—masked the truth about the Roberts Court on the only thing that mattered, the substance of its decisions. George W. Bush’s second term has been marked by a series of political calamities for the president and his party—on the Iraq war, Hurricane Katrina, Social Security and immigration reform, and the midterm elections, to name a few. But one major and enduring project went according to plan: the transformation of the Supreme Court. Quickly, almost instantly by the usual stately pace of the justices, the Court in 2006 and 2007 became a dramatically more conservative institution.

  Outsiders recognized the change before the justices acknowledged it.

  The first clear indication came from the lawyers in the Court’s first major school desegregation case in many years. In Louisville, schools had been segregated by law before Brown v. Board of Education in 1954; and even after the Court struck down the doctrine of separate but equal, Kentucky officials, like so many around the nation, avoided complying with Brown and maintained separate schools for black and white students into the 1970s. But when the community finally decided to comply with the law, Louisville faced a familiar problem. Its neighborhoods were so segregated that placing students only in schools close to their homes would scarcely change the racial balance. As a result, the school board eventually came up with a plan in the mideighties that considered a variety of issues in assigning children to schools. Student choice was the major factor, as was the presence of siblings in a school, but race counted as well. Louisville managed enrollment so that each school had no less than 15 percent and no more than 50 percent black students. A group of parents challenged the plan in court, asserting that the school board had no right to use race in school assignments. In a related case, a similar plan in Seattle was attacked as well.

  At one level, the two school cases looked easy. As lower courts had noted, the plans comported with the rules O’Connor had set down in the Grutter v. Bollinger case just three years earlier. Like the University of Michigan Law School, the Louisville and Seattle school boards decided that they wanted to foster diversity in their communities. And, like Michigan, the schools included race as one factor among several in selecting students. But the Supreme Court of 2006 and 2007 was not the Supreme Court of 2003. And the lawyers for the Louisville parents put the challenge to the justices in the most direct way. The same month that Alito was confirmed, the parents asked the justices to grant certiorari in their case. To the lawyers in the new case, the question presented was straightforward, and chilling for O’Connor’s legacy: “Should Grutter v. Bollinger…be overturned?” Certiorari was granted.

  Like all former justices, of course, O’Connor could only watch what the Court would do to the precedents she had laid down. Her retirement had turned out to be nothing like what she expected. O’Connor had left the Court to be with her husband, but during the long delay, his illness took a cruel toll on John O’Connor. Alzheimer’s disease follows an unpredictable path, and John deteriorated much faster than anyone had expected. By 2007, he no longer knew his wife. He was moved to an assisted-living facility in Phoenix, near the O’Connors’ sons. In a sad irony, Justice O’Connor had not wanted to resign, but had done so to take care of John, and then suddenly there was nothing she could do for him.

  O’Connor responded in a characteristic manner—not with self-pity or despair but rather with almost frenzied work and activity. In her first fall away from the Court, she threw herself into the cause that had obsessed her since the Terri Schiavo case. In September 2006, she sponsored, organized, and hosted a conference at Georgetown University Law Center on judicial independence. Many speakers at the conference targeted the Republicans who had been challenging judges on such issues as abortion, criminal sentencing, and the influence of foreign courts throughout the Bush years. O’Connor’s self-confidence was intact. At a planning meeting for the Georgetown event, several people wondered whether the new chief justice might attend. “You just leave John Roberts to me,” O’Connor promised, and the new chief dutifully paid homage.

  At the same time O’Connor was planning the judicial independence conference, she agreed to serve as a member of the Iraq Study Group, the panel of eminences, cochaired by James A. Baker III and Lee H. Hamilton, charged with plotting a new course for the war. Even though she had no direct experience in the military or diplomatic matters, O’Connor knew how to ask questions, and she played a key role in examining some of the hundred or so witnesses the ISG consulted over almost six months. O’Connor’s impatience and brisk efficiency became a source of amusement to her nine fellow members. When the photographer Annie Leibovitz came to one ISG meeting to take a group portrait for Men’s Vogue, O’Connor refused to participate in such silliness. “That’s not what I’m here for,” she growled, and her colleagues sheepishly followed her lead. Years earlier, O’Connor had sat for a Leibovitz portrait and found the experience tedious. Baker and Hamilton did eventually sit for Leibovitz.

  The ISG report, which was released on December 6, 2006, began by asserting, “The situation in Iraq is grave and deteriorating.”
O’Connor and her colleagues called for a new, largely diplomatic approach, leading to a gradual withdrawal of American military forces. President Bush ignored most of the group’s recommendations and instead ordered a “surge” of tens of thousands more American troops.

  As with so much of the Bush presidency, O’Connor was appalled but not surprised by his rejection of the core of the ISG plan. Still, she was fatalistic, resigned to her limited role in events. At the news conference announcing the ISG’s findings, she noted that, like her duties at the Court, her role on the commission had concluded. “It really is out of our hands, having done what we did,” O’Connor said. “It’s up to you, frankly.”

  At the Court, suddenly, it was up to Anthony Kennedy. Even more than O’Connor had over the previous decade, Kennedy now controlled the outcome of case after case. During the Rehnquist years, O’Connor and Kennedy had had idiosyncratic enough views that it wasn’t always clear whose vote would turn out to be dispositive. But the Roberts Court had four outspoken conservatives—Roberts, Scalia, Thomas, and Alito—and four liberals, at least by contemporary standards—Stevens, Souter, Ginsburg, and Breyer. Kennedy, always, was in the middle. And he loved it.

  Kennedy had long had the most difficult judicial philosophy on the Court to describe. It was centered on his perception of the judge—and of himself—as a figure of drama and wisdom, more than any specific ideology. Kennedy believed that, at home and abroad, the rule of law was protected by enlightened individuals as much as by any identifiable approach to the law. In his two decades on the Court, Kennedy had come to have a usually predictable, if intellectually incoherent, collection of views. He believed what he believed, but it was hard to say why.