The Nine

by Jeffrey Toobin

  Like any warrior, Roberts took the high ground, and at the Supreme Court, there is no rampart more protected than Brown v. Board of Education, the unanimous landmark decision of 1954 where Chief Justice Earl Warren forbade official segregation in public schools. To Roberts, any plan that assigned even a single student for a single year to a school based on his race violated Brown. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons,” the chief justice read in his flat midwestern accent. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

  Breyer then spoke for twenty-seven minutes, one of the longest spoken protests in the Court’s history, summarizing a dissenting opinion that he called “twice as long as any other I have written.” Kennedy agreed with the result in the Louisville and Seattle cases, but not with all of Roberts’s opinion. In a vague and confusing concurring opinion of his own, Kennedy suggested that some race-conscious plans might be permissible, but not those in these two cities. Many big-city schools were in fact already moving away from the explicit race-consciousness of Louisville and Seattle, concentrating more on raising test scores than mixing races. Thus, the practical effect of the day’s decisions was left rather mysterious and may turn out to be modest.

  But Breyer wrote at such length, and spoke with such passion, because of something more than the immediate stakes. In part, he (joined again by all three liberals) was simply offended at the hijacking of Brown by the conservatives. “The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration,” he said. “And it is a cruel distortion of history to compare Topeka, Kansas, in the 1950s, to Louisville and Seattle in the modern day.” In part, too, Breyer saw planted in Roberts’s opinion the end of all affirmative action—in employment, in business, and in government, as well as in education. The “color-blind” Constitution, long favored by Scalia and Thomas and now apparently by Roberts and Alito, would end it all. (In a brief dissent that was more bewildered than angry, Stevens made the remarkable assertion, “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”)

  But Breyer, most fundamentally, was talking in his long opinion about the Court. For the second time that day, he asked, “What has happened to stare decisis?” He listed Grutter and six more cases that now appeared to be dead letters. “The plurality’s logic writes these cases out of the law,” he said, and then added words that did not appear in the published version of his dissenting opinion: “It is not often in law that so few have so quickly changed so much.”

  At this direct slap, Alito roused himself and stared across the bench at Breyer. Roberts didn’t change expression, but the muscles in his jaw twitched. Above all, Breyer was taking a stand against the agenda that was born in the Reagan years, nurtured by the Federalist Society, championed by the right wing of the Republican Party, and propelled by the nominations of Roberts and Alito. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade and allow states to ban abortion. As Breyer knew better than anyone, the two new justices, plus Scalia, Thomas, and (usually) Kennedy, put all those goals tantalizingly within reach.

  As soon as Breyer finished, Roberts, graceful as always, closed the year by paying tribute to Harry Fenwick, the Court’s food preparation specialist, who would be retiring two days later after thirty-eight years of service. “Thanks for everything, Harry,” Roberts said. Then the chief justice declared a recess until the first Monday in October.

  EPILOGUE

  THE STEPS—CLOSED

  On the day that President Bush nominated John Roberts to the Supreme Court, the future chief justice reflected upon the great symbol at the heart of Cass Gilbert’s design—the steps. “I always got a lump in my throat whenever I walked up those marble steps to argue a case before the Court,” Roberts said, “and I don’t think it was just from the nerves.” Over the years, countless Americans have shared Roberts’s sense of awe as they entered Gilbert’s temple of justice. Soon, however, no one else will. The steps will be closed to the public as an entranceway to the Court.

  Rehnquist made the renovation of the Supreme Court building a priority during his final years as chief justice. Like many government building projects, a fairly modest restoration metastasized into an over-budget, much-delayed shambles, which may (or may not) be completed around 2009. And like much else in Washington after September 11, 2001, the design decisions about the renovation were made with obsessive attention to the issue of security. Most notably, the public entrance up the front steps—the defining feature of Gilbert’s concept for the structure—was deemed an undue risk. So a new entrance will be gouged into the side of the steps, near the base of the building. Visitors will still be allowed to depart down the front steps, and watch Gilbert’s vision recede behind them.

  Whether the closing of the steps turns out to be a metaphor for deeper change at the Court will be determined in part by the justices but even more by the American people. More than any other influence, the Court has always reflected the political currents driving the broader society. In the early days of the Republic, when regional conflict predominated, that tension could be seen on the Court. Presidents felt obligated to replace, say, a California justice with another from the same state. (Later, of course, it passed almost without notice that the Court for many years had two justices, Rehnquist and O’Connor, from the relatively unpopulated state of Arizona.) In the nineteenth and twentieth centuries, the great tide of European immigration put religion near the center of politics, and the tradition of a “Catholic seat” and a “Jewish seat” arose. The fact that President Clinton drew little comment by appointing two Jews to the Court proved the passing of this era. Likewise, there is little significance that there are now five Catholic justices. The most important liberal in the Court’s history, William Brennan, was Catholic, too.

  Today, the fundamental divisions in American society are not regional or religious but ideological. Roberts, Scalia, Kennedy, Thomas, and Alito were not appointed because they are Catholic but because they are conservative. The base of the Republican Party—from James Dobson and Jay Sekulow among the evangelicals to Ted Olson and Leonard Leo among the Federalists—recognized that they could use their influence to shape the Court. They organized more, mobilized more, and cared more about the Court than their liberal counterparts. And when their candidate won the presidency, these conservatives demanded more—a pair of justices who were precisely to their liking (and the ejection of one nominee, Harriet Miers, who was not). With admirable candor, and even greater passion, conservatives have invested in the Court to advance their goals for the country.

  In public at least, Roberts himself purports to have a different view of the Court than his conservative sponsors. “Judges are like umpires,” he said at his confirmation hearing. “Umpires don’t make the rules; they apply them.” Elsewhere, Roberts has often said, “Judges are not politicians.” None of this is true. Supreme Court justices are nothing at all like baseball umpires. It is folly to pretend that the awesome work of interpreting the Constitution, and thus defining the rights and obligations of American citizenship, is akin to performing the rote, almost mindless task of calling balls and strikes. When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor, has written, “It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly.” Constitutional cases, Posner wrote, “can be decided
only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”

  For this reason, Breyer’s wan longing for stare decisis will stir few hearts. Breyer and his liberal colleagues (joined on this occasion by Kennedy) did not care about stare decisis when they voted in Lawrence v. Texas to overturn the Court’s barely seventeen-year-old decision in Bowers v. Hardwick. Rather, they believed that the time had come to recognize that it was an abomination to allow criminal punishment of consensual homosexual sex and voted accordingly. On that occasion, as so often, ideology trumped precedent. It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices’ freedom to interpret is vast but not absolute.

  Still, when it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy—ideology—and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideologies that will shape the Court and thus the nation.

  So one factor—and one factor only—will determine the future of the Supreme Court: the outcomes of presidential elections. Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely. The days when justices surprised the presidents who appointed them are over; the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All of the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the presidents who appointed them. That will almost certainly be true, too, of the replacements for the three justices most likely to depart in the near future—Stevens, Souter, and Ginsburg.

  This is as it should be. Cass Gilbert’s steps represent at some level a magnificent illusion—that the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the Court we deserve.

  AFTERWORD

  TO THE ANCHOR EDITION

  Then, in the 2007–2008 term, the Supreme Court took a breath. There were, as ever, some important cases on the docket, but the year as a whole had an air of contingency. The justices were doing their work and completing their assignments, but they left the impression that they, no less than the rest of the country, were waiting for the results of the presidential election.

  It is always difficult to know, of course, how much of the relative quiet of the term, particularly compared to the drama of the previous year, was due simply to the luck of the draw; fewer important cases happened to be in the pipeline. But there were small signs, too, that the conservatives—especially Chief Justice Roberts—had at least a moment’s hesitation about the Court’s headlong rush to the right in the previous year. Breyer’s warning on the last day of that term—“It is not often in the law that so few have so quickly changed so much”—appeared to have an effect. Thanks to Breyer’s caution, and the decisions at the end of that term, Roberts’s honeymoon with the Democrats who supported him was over. Roberts’s efforts to portray himself as a consensus builder or a centrist looked hollow, or even deceptive.

  Among congressional Democrats (and even some Republicans), the 2007 decision that generated the most outrage was Lilly Ledbetter’s job discrimination case against Goodyear Tire and Rubber Company, which the justices threw out under a new and highly restrictive reading of the statute of limitations. Ledbetter herself became a celebrity of sorts, and a bill in Congress to change the law in her favor was christened the Lilly Ledbetter Fair Pay Act. With a veto promised by President Bush, the law did not pass both houses of Congress, but the fairly broad support for it represented a clear sign of bipartisan displeasure. So, coincidentally or not, the 2007–2008 term turned out to be a good one for suits claiming employment discrimination. In five such cases, the Court ruled for the plaintiff each time—and always with at least seven votes. One case was unanimous, and only Thomas voted for the corporate defendants in each of the other four. Those lawsuits, decided early in the term, suggested that the new year would not be another conservative rout.

  In one respect, though, the 2007–2008 term resembled prior years because Sandra Day O’Connor, even in retirement, remained the justice best known to the public, and the one recognized for her life as much as for her work.

  The new chapter of her life began in November 2007, when Veronica Sanchez, a television news reporter in Phoenix, called a local nursing home to do a story about the phenomenon of “mistaken attachments” among patients with Alzheimer’s disease. In this syndrome, patients can forget their relationships with their spouses and other relatives and “fall in love” with the people they see everyday, usually other patients. At the last minute, Sanchez’s original story on the subject fell apart, but the nursing home directed her to another facility, the Huger Mercy Living Center, where she was told there were two families who were willing to cooperate. One of them, the director of the center told Sanchez, was Sandra Day O’Connor’s.

  Sanchez, of course, was flabbergasted, but she spoke to Scott O’Connor, the justice’s son, who lives in Phoenix, and he assured the reporter that his mother would approve the story. Scott ultimately gave Sanchez an on-camera interview, and he allowed her crew to photograph his father with the object of his apparent affection. The story on KPNX television caused a worldwide sensation, focusing attention on this little-known aspect of Alzheimer’s disease and the accompanying trauma for the family.

  O’Connor’s decision to disclose this painful family secret surprised many of her friends, but it reflected her practical, problem-solving nature. By going public, O’Connor thought she could comfort or help other families in similar situations; she could not resist the chance to be of assistance. A few months later, O’Connor spelled out the story in her own voice, in testimony before the Senate Special Committee on Aging. She said Alzheimer’s was “a subject that is very dear to my heart and to the hearts of the millions of American families who love and provide care to relatives who have Alzheimer’s disease. As you know, I became one of these caregivers in 1990 when my husband, John, was diagnosed with Alzheimer’s. Living with this disease has been sad and difficult for my entire family.” (The date of John’s diagnosis had never before been made public.) O’Connor asked the senators for additional funding for research on the disease and its effect on the families of its victims.

  The story about John remained, however, a sidelight in the former justice’s peripatetic travels around the country. Most of the time, she gave speeches about the twin causes that she had made her focus—judicial independence and civic education for young people. To that end, O’Connor became a spokeswoman for a nonprofit organization called Games for Change, which created video games placing children in positions of decision-makers, like judges. “Had someone told me when I retired from the Supreme Court, that I would be presenting at a conference on digital media, I would have reacted with extreme skepticism,” she said at one such conclave in New York. Even in this ostensibly apolitical venture, O’Connor reflected the alienation from the Republican cause that had been so obvious during her last years on the bench. She was drawn to the video game project after seeing the “increasingly vitriolic attacks against the Judiciary,” as in the Terri Schiavo case. The games, like her speeches, were an attempt to educate the public on the need for strong and independent judges. She quipped, “I always thought that an activist judge was a judge that got up every day and
went to work.” Well into her eighth decade, O’Connor still did.

  The Court’s decisions, earlier in the decade, banning the death penalty for juvenile offenders and the mentally retarded took place in a changing political climate for executions. Polls showed that support for the death penalty, while still substantial, was lower than at any point since the 1970s. Explanations for this change varied, but it almost certainly had something to do with declining crime rates and many highly publicized examples of innocent prisoners freed from death row as a result of new DNA evidence. Emboldened by the changing environment, death penalty opponents took on a new target—the method of executions used by most states. Defendants argued that lethal injection amounted to cruel and unusual punishment, in violation of the Eighth Amendment.

  The case which reached the court, Baze v. Rees, became another example of how the liberals—specifically Stevens and Breyer—were a different breed than their earlier counterparts, like William Brennan and Thurgood Marshall. The evidence in the case was ambiguous; the execution protocol, known as a “cocktail,” had been established in a haphazard way, but there was not much proof about how much pain it caused defendants. This uncertainty was enough to push Breyer, who was always searching for facts rather than theories, to side with the conservatives. “I cannot find, either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the ‘significant and unnecessary risk of inflicting severe pain’ that petitioners assert,” Breyer wrote in an opinion concurring in the judgment.

  More surprising, perhaps, was that Stevens also joined the majority, which meant the vote in the case was 7–2 to uphold lethal injections. In his separate opinion, Stevens announced that he had seen enough of the death penalty—that, like Justice Harry Blackmun more than a decade earlier, years of exposure to death cases had turned him into an abolitionist. “I have relied on my own experience,” Stevens wrote, “in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” But in his clear, matter-of-fact way—very different from Blackmun’s theatrics—Stevens said he would respect the precedents of the Court and thus join the majority in upholding lethal injections. Reserved, almost diffident, Stevens had less difficulty than most of his colleagues in separating his legal from personal conclusions. The opinion was as mysterious as Stevens’s long and distinctive tenure.