The Nine

by Jeffrey Toobin

  In the same lethal injection case, Thomas contributed one of the more bizarre opinions in his tenure. He used the case to compile a history of execution grotesqueries, proving, in his view, that the original understanding of the Eighth Amendment allowed the imposition of pain on the condemned. For example, the penalty for treason in eighteenth-century England, Thomas wrote, quoting an old document, was that “you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters.” Thomas’s point apparently was that anything—anything!—short of this kind of torture was permissible under the Eighth Amendment. To his credit Thomas had pushed his originalism to its logical extreme, even at the cost of endorsing a barbarism that has, fortunately, long vanished from American life.

  The relative absence of controversial cases, particularly early in the 2007–2008 term, obscured the fundamental truth that had emerged the previous year—that this Supreme Court belonged to Anthony Kennedy.

  The big cases that year generally concerned issues—such as abortion, civil rights, and employment law—where Kennedy sided with the conservatives. That was not true in the 2007–2008 term. Two of the biggest cases involved the death penalty and the treatment of the detainees at Guantánamo Bay; in both, Kennedy tended to side with the liberals, and that is what he did in 2008.

  In 1977, the Court ruled in Coker v. Georgia that, under the Eighth Amendment, the rape of an adult could not be punished with the death penalty. For many years, this decision was widely understood to mean that the death penalty could never be imposed for rape. (No one had actually been executed for rape since 1964.) But enterprising politicians in a handful of states identified what they thought was a loophole in Coker. The decision did not state explicitly that rape of a child could never be punished by death, so Louisiana and five other states amended their laws to allow for the death penalty in such cases. In 1998, Patrick Kennedy’s eight-year-old stepdaughter was raped. He was arrested a few days after the crime, but there was no trial until 2003. Kennedy was ultimately convicted and sentenced to die.

  The case had the potential to widen considerably the range of crimes for which the death penalty might be appropriate—including rape, kidnapping, and even other kinds of assault. Justice Kennedy had voted with the seven-justice majority in the lethal injection case, of course, but the international consensus against the death penalty still weighed heavily on him. He was the author of Roper, which ended the death penalty for juvenile offenders, and Patrick Kennedy’s lawyers relied heavily on that case in urging Justice Kennedy, clearly the swing vote, to overturn the sentence. At the oral argument, Kennedy sounded unexpectedly sympathetic to the government, but in the end he voted to reject the death sentence, and Stevens asked Kennedy to write the opinion.

  In ruling against the death penalty for child rape, Kennedy relied in large part on what he called the consensus against such punishment—the fact that only six states allowed executions under these circumstances. He noted, too, that the federal government did not allow the death penalty for rape of a child. But as a military law blogger pointed out shortly after the opinion was issued, Kennedy was wrong; in 2006, federal law was amended to allow just such executions. The mistake (which didn’t have a large bearing on the case) reflected a little-known fact about the Court. The justices and their law clerks rely to a great extent on the lawyers pleading the cases for the facts and law and do relatively little original research of their own. In this case, the consequences of that practice were embarrassing for Justice Kennedy.

  In a curious echo of his opinion in Stenberg, the abortion case of the previous year, Justice Kennedy said the death penalty for child rape cases might damage the victim of the crime. “Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice,” he wrote. (In the notorious section of Stenberg, Kennedy had written, based on little or no evidence, that the federal abortion ban actually helped some women because many women come to regret having abortions.) The gestures reflected Kennedy’s blunderbuss stabs at empathy, though his concern was surely more appropriate for children than for adult women. In one of his more awkward passages, Kennedy wrote, “In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.” In the spirit of Roper, with its reliance on international law, a group of British lawyers and scholars filed a brief in the Patrick Kennedy case, pointing out that the death penalty for rape had been abolished in Britain many years ago. But Justice Kennedy, perhaps mindful of the storm such citations had caused in the past, did not refer to international law in his opinion.

  Like the death penalty, the treatment of the detainees at Guantánamo was a cause célèbre among Kennedy’s colleagues on the international judicial circuit. That issue returned to the Court once more in 2008, with Kennedy playing his customary role as the swing vote.

  Two years earlier, in the Hamdan case, Justice Stevens’s opinion for the Court had rejected the Bush administration’s plan for the detainees because, among other reasons, it had been established by the president alone, without the concurrence of Congress. So shortly after Hamdan came down in June 2006, Bush introduced the Military Commissions Act, which essentially ratified the previous system of trials at Guantánamo and, most importantly, barred the detainees from filing petitions for habeas corpus in federal district courts. According to the administration’s theory, the system at Guantánamo amounted to an adequate substitute for habeas proceedings. Court challenges to the new law began as soon as it was passed. The case came to the Supreme Court under the name of Boumediene v. Bush; the plaintiff was a thirty-eight-year-old Algeria-born Bosnian, who had been held at Guantánamo since 2002.

  The case was tailor-made for Anthony Kennedy, because it raised fundamental questions about the historic power of the judiciary. The right to petition for habeas corpus—to ask a judge to release you from unjustified incarceration by the executive branch—was so important to the framers that they put it in the Constitution itself, not just the Bill of Rights. As Kennedy wrote in his opinion, “The framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.” It is true that Congress had sometimes tried to limit the right by establishing alternative procedures, most notably in the Orwellian-sounding Antiterrorism and Effective Death Penalty Act of 1996. But regarding that law, and others like it, even some of the conservatives on the Court (like Kennedy) jealously protected the right to file these cases, if not to win them. (The 1996 law was designed to limit repeated appeals from death-row prisoners, but the Court has interpreted it to allow some latitude to prisoners.)

  What tipped the issue for Kennedy, however, was the political and historical context of the latest Guantánamo case. The Bush administration had fought the Court every step of the way since the terrorists attacks of 2001. In Hamdi and Rasul (in 2004) and Hamdan (2006), the Court risked its own political capital by forcing the president to comply with the Constitution. The time for Kennedy to give Bush the benefit of the doubt had long since passed. The detainees were rotting in Guantánamo, year after year. As Kennedy wrote, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.” It was a final, and crushing, rebuke to the Bush administration.

  Kennedy’s opinion set Scalia into one of his more fantastic rages. In his dissenting opinion, he wrote, “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will ma
ke the war harder on us. It will almost certainly cause more Americans to be killed.” Accusing his colleagues of causing the death of their fellow Americans was outside the norm, even by Scalia’s standards; but Kennedy—and Souter, in his concurrence—showed that they knew better than to rise to the bait. (And as a simple substantive matter, it seems clear that Scalia’s point was wrong, for the Court’s opinion did not force the government to release a single terrorist, merely to give them reasonably fair hearings.) Notably, Scalia’s intemperate dissent was joined not just by Thomas (as was customary), but Roberts and Alito as well—revealing their true feelings about the power of the executive branch, which had been a conservative cause since the Reagan years.

  On May 6, 2008, with just several weeks to go in the Supreme Court’s term, Barack Obama won the North Carolina primary and came close to Hillary Clinton in the Indiana race, making him the all-but-certain Democratic nominee for president. It was on this day that John McCain, the presumptive Republican nominee, chose to give a speech about his judicial philosophy. The speech showed how the politics of the Supreme Court, no less than the nation’s, were changing.

  Over the years, McCain had had a troubled relationship with the base of the Republican Party. His apostasies on such issues as immigration and campaign finance reform created suspicions that not even his firm pro-life stand, and accompanying opposition to Roe v. Wade, could overcome. So McCain’s speech about judges and law was an attempt to reach out to the base—to show that, at least on such crucial issues as abortion and the death penalty, he was one of them.

  But there was a problem. For all that the conservative legal agenda, which first took shape under Attorney General Edwin Meese III in the Reagan administration, now dominated the Republican Party, the broader public never came on board. Support for abortion rights, and Roe in particular, was high; so was public support for affirmative action; and opposition to the death penalty was growing. McCain had to be careful about what he said on these issues. For starters, he decided to give this speech on a day when the political world was focused elsewhere; and in the speech itself, which was given at Wake Forest University, he talked in a kind of code—one that was decipherable to the base, but mysterious to almost everyone else.

  McCain began with a paean to the wisdom of the framers of the Constitution for establishing the separation of powers. “The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be,” he said, before adding, in a comforting way, “The system of checks and balances rarely disappoints.” Still, he warned against complacency, because “there is one great exception in our day” to the smooth functioning of the separation of powers. This was surely true: The Bush administration has sought to expand executive power in an unprecedented manner, especially with respect to the president’s ability to authorize torture, ignore the Geneva conventions, and order the surveillance of citizens.

  But that was not what McCain had in mind. Instead, he pronounced that the great exception “is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.” This, of course, was a view functionally identical to President Bush’s position and a coded reference to Roe. Like many conservatives, McCain believes that abortion is a matter that should be left to elected state legislators, not unelected federal judges.

  In the most curious section of the speech, McCain cited what he saw as an example of such judicial abuse. “Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri,” he said. “As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’ These meditations were in the tradition of ‘penumbras,’ ‘emanations,’ and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.”

  The giveaway here was that McCain did not reveal the subject matter of this supposed judicial outrage. The case was, of course, Roper v. Simmons, in which a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death. Justice Kennedy’s opinion overturned the sentence and held that the Constitution forbade the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” referred to Kennedy’s observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 had been China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. According to McCain, apparently, the United States belonged on this dismal list.

  McCain’s references to penumbras and emanations were not accidental. Those words came from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the justices recognized for the first time a constitutional right to privacy, and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It came from the Court’s 1992 opinion in Planned Parenthood v. Casey, which reaffirmed the central holding of Roe v. Wade and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a dog whistle for the right—an implicit promise that he would appoint justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of children. But McCain did not come out and say so directly because it was politically impossible to do so.

  The conservative counterrevolution had made great strides in the Republican Party, and in the Supreme Court, especially with the appointments of Roberts and Alito, but the public, it seemed, was unconvinced. So while McCain was reduced to speaking in code, there was no mystery about what he meant. With Stevens, Ginsburg, and Souter poised for retirement, McCain was promising to replace them with their ideological polar opposites. Such were the stakes of the 2008 presidential election.

  On the last day of the last term before the 2008 election, the Court showed how much the conservative movement had achieved in just under three decades. In 1981, when Reagan took office and the Federalist Society was founded, the Second Amendment was widely considered a dead letter. But that last case, District of Columbia v. Heller, not only brought the Second Amendment back to life, but did so in a way that vindicated the originalism that first Meese and then Scalia championed.

  The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The sentence is ungrammatical and difficult to understand. The two clauses appear to have little to do with one another; the relationship between the “militia” and the right to “keep and bear arms” is unclear. Still, regardless of the ambiguity of the wording, the courts’ interpretations of the Second Amendment had been clear for decades. The right to bear arms applied only to state militias, not individuals. In other words, the amendment did not prohibit states and localities from passing gun control laws. As the Court said in a 1939 case (the last time the justices examined the issue), the Second Amendment prohibited only regulation of weapons which had a “relationship to the preservation or efficiency of a well regulated militia.” Warren Burger, the former chief justice and hardly a liberal thinker, once made the same point in an earthier way. In an interview, he said the idea that the Second Amendment prohibited gun control was “one of the greatest pieces of fraud, I repeat the word, fraud, on the American public by special interest groups.”

  But those special interest groups, preeminently the National Rifle Association, found willing partners in the conservative counterrevolutionaries. On
many occasions starting around 1980, individuals raised the claim that the Second Amendment protected an individual’s right to bear firearms, and in each case that position was rejected. Literally hundreds of judges ruled the same way in these cases. But pressure from the NRA and like-minded conservative groups (and a handful of liberal academics) kept the issue alive. Then, in 2003, one of these groups found a willing plaintiff—a D.C. security guard who wanted to keep a handgun at home—to challenge the District of Columbia’s strict gun control law.

  The case was, in some fundamental respect, a simple one, raising only the question of what the words of the Second Amendment meant. That, in turn, required interpreting the Constitution—a politically fraught endeavor since Meese came to Washington almost three decades earlier and brought originalism from the fringes to the mainstream. In Heller, the five conservatives decided to reject the old view of the Second Amendment and embrace the NRA’s reading. By the familiar vote of 5–4 the Court overturned the D.C. law, and Roberts assigned the opinion to Scalia. It was by far the most important majority opinion of his career.