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HE

N I T H E J E C R E R L D

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"A MAJOR A C H I E V E M E N T ,

L U C I D A N D P R O B I N G . "

- B O B W O O D W A R D ,

C O A U T H O R OF THE BRETHREN

Bestselling author Jeffrey Toobin takes you into

the chambers of the most important—and

secret—legal body in our country, the Supreme

Court, and reveals the complex dynamic among

the nine people who decide the law of the land.

J u s t in time for the 2008 presidential elec­

tion—where the future of the C o u r t will be

at stake—Toobin reveals an institution at a

moment of transition, when decades of con­

servative disgust with the C o u r t have finally

produced a conservative majority, with major

changes in store on such issues as abortion,

civil rights, presidential power, and church-

state relations.

B a s e d on exclusive interviews with the

justices t h e m s e l v e s , The Nine tells the story

of the C o u r t through personalities —from

Anthony Kennedy's overwhelming sense of self-

importance to Clarence Thomas's well-tended

grievances against his critics to David Souter's

odd nineteenth-century lifestyle. There is also,

for the first time, the full behind-the-scenes

(continued on back flap)

(continuedfrom front flap)

story of Bush v. Gore —and Sandra D a y O ' C o n ­

nor's fateful breach with G e o r g e W. Bush, the

president she helped place in office.

The Nine is the b o o k J e f f r e y Toobin was

born to write. H e is a bestselling author, a

C N N senior legal analyst, and New Yorker staff

writer. N o one is more superbly qualified to

profile the nine justices.

" T H I S IS A R E M A R K A B L E ,

R I V E T I N G BOOK. S O GREAT ARE

T O O B I N ' S N A R R A T I V E S K I L L S

THAT BOTH T H E J U S T I C E S AND

T H E I R I N N E R WORLD ARE

BROUGHT V I V I D L Y TO L I F E . "

- D O R I S K E A R N S

G O O D W I N

J E F F R E Y T O O B I N is the author of such

bestsellers as Too Close to Call, A Vast Conspiracy,

and The Run of His Life. He lives with his family

in New York City.

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T H E

N I N E

A L S O B Y J E F F R E Y T O O B I N

Opening Arguments: A Young Lawyer's First Case— United States v. Oliver North

The Run of His Life: The People v. 0. J. Simpson

A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President

Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election

T H E

N I N E Inside the Secret World of the Supreme

Jeffrey Toobin

D O U B L E D A Y

New York London Toronto

Sydney Auckland

P U B L I S H E D B Y D O U B L E D A Y

Copyright © 2 0 0 7 by Jeffrey Toobin

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Published in the United States by Doubleday, an imprint of T h e Doubleday Broadway Publishing Group, a division o f

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D O U B L E D A Y and the portrayal o f an anchor with a dolphin are registered trademarks o f Random House, Inc.

Book design by Michael Collica

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Library o f Congress Cataloging-in-Publication Data Toobin, Jeffrey.

T h e nine : inside the secret world of the Supreme Court / Jeffrey Toobin.

p. cm. Includes bibliographical references and index.

1. United States, Supreme Court. 2. Political questions and judicial power—United States. 3. Judicial review—United States.

4 . Conservatism—United States. 5. Law—Political aspects. I. Title. K F 8 7 4 8 . T 6 6 2 0 0 7

3 4 7 . 7 3 ' 2 6 - ^ l c 2 2 2 0 0 7 0 2 0 2 8 7

I S B N 9 7 8 - 0 - 3 8 5 - 5 1 6 4 0 - 2

P R I N T E D I N T H E U N I T E D STATES O F A M E R I C A

1 3 5 7 9 10 8 6 4 2

First Edition

T o A d a m

CONTENTS

Prologue: The Steps 1

P A R T O N E

1. The Federalist W a r of Ideas 11 2. Good versus Evil 23 3. Questions Presented 36 4 . Collision Course 48 5. Big Heart 60 6. Exiles Return? 74 7. W h a t Shall Be Orthodox 86 8. Writing Separately 99 9. Cards to the Left 114

10. The Year of the Rout 125

P A R T T W O

11. To the Brink 141 12. Over the Brink 135 13. Perfectly Clear 165

P A R T T H R E E

14. "A Particular Sexual Act" 181 15. "A Law-Profession Culture" 191 16. Before Speaking, Saying Something 205 17. The Green Brief 215 1 8 . "Our Executive Doesn't" 228 19- "A Great Privilege, Indeed" 240

Vlll Contents

P A R T F O U R

2 0 . " 'G' Is for God" 257 2 1 . Retiring the Trophy 271 22. "I Know Her Heart" 284 2 3 . Dinner at the J u s t Desserts Café 298 2 4 . "I A m and Always Have Been . . . " 311

2 5 . Phanatics? 323

Epilogue: The Steps—Closed 337

Acknowledgments 341

Notes 342 Bibliography 351 Photo Credits 354 Index 355

On September 6, 2 0 0 5 , the justices lined up on the steps of the Court to greet the casket of W i l l i a m H. R e h n q u i s t . From the top, J o h n Paul Stevens (in bow t i e ) , Sandra Day O'Connor, A n t o n i n Scalia, Clarence Thomas, R u t h Bader Ginsburg, and Stephen G. Breyer. A n t h o n y M . Kennedy was in China, David H. Souter in N e w H a m p s h i r e . In the upper right corner is J o h n O'Connor, Sandra's a i l i n g husband.

Seven of R e h n q u i s t ' s former law clerks and one former a d m i n i s t r a t i v e assistant carried his casket. J o h n G. Roberts J r . , who worked for the then associate justice in 1 9 8 0 - 8 1 , is second in line on the r i g h t .

O'Connor weeps as R e h n q u i s t , her friend of more than fifty years, returns to the Court for a final t i m e .

They served together from 1 9 9 4 to 2 0 0 5 — t h e longest period w i t h o u t change in the history of the nine-justice Court. Top row, from left: Ginsburg, Souter, Thomas, Breyer. Bottom row: Scalia, Stevens, Rehnquist, O'Connor, Kennedy.

On J u n e 14, 1 9 9 3 , after a tortuous search, President Clinton introduces Ginsburg, his first nominee.

Breyer, Clinton's second nominee to the Court, in 2 0 0 6 .

Souter, h a g g a r d and drained, leaves the Court on December 12, 2 0 0 0 , the day of Bush v. Gore, the case that nearly p r o m p t e d h i m to resign.

International travel transformed the outlooks of several justices. O'Connor w i t h Chinese president J i a n g Z e m i n in B e i j i n g in 2 0 0 2 . Inset: Kennedy in the H a g u e in 2 0 0 4 .

A frail R e h n q u i s t rose from his sickbed to a d m i n i s t e r the oath of office to President Bush on J a n u a r y 2 0 , 2 0 0 5 .

President Bush introduces Roberts as his nominee to replace O'Connor on J u l y 19, 2 0 0 5 . To the side are Roberts's wife, J a n e , and daughter, Josephine. H i s son, J a c k , is i m i t a t i n g Spider-Man.

On September 2 9 , 2 0 0 5 , at the W h i t e House, Stevens swears in Roberts as the seventeenth chief justice of the U n i t e d States.

S a m u e l A. A l i t o J r . arrives for the hearing w i t h his wife, M a r t h a - A n n .

A l i t o at his confirmation hearing on J a n u a r y 1 1 , 2 0 0 6 .

M a r t h a - A n n breaks down in tears at the hearing as Senator Lindsey G r a h a m describes the attacks against her husband.

PROLOGUE

T H E STEPS

The architect Cass Gilbert had grand ambitions for his design o f a new home for the Supreme Court—what he called "the greatest tribunal in the world, one o f the three great ele­ ments o f our national government." Gilbert knew that the approach to the Court, as much as the structure itself, would define the experi­ ence of the building, but the site presented a challenge. O t h e r exalted Washington edifices—the Capitol, the Washington Monument, the Lincoln Memorial—inspired awe with their processional approaches. But in 1 9 2 8 Congress had designated for the Court a cramped,and asymmetrical plot o f land, wedged tightly between the Capitol and the Library o f Congress. How could G i l b e r t convey to visitors the magnitude and importance o f the judicial process taking place within the Court's walls?

The answer, he decided, was steps. Gilbert pushed back the wings o f the building, so that the public face o f the building would be a por­ tico with a massive and imposing stairway. Visitors would not have to walk a long distance to enter, but few would forget the experience o f mounting those forty-four steps to the double row o f eight massive columns supporting the roof. T h e walk up the stairs would be the central symbolic experience o f the Supreme Court, a physical manifes­ tation of the American march to justice. T h e stairs separated the Court from the everyday world—and especially from the earthly con­ cerns o f the politicians in the Capitol—and announced that the jus­ tices would operate, literally, on a higher plane.

2 Jeffrey Toobin

T h a t , in any event, was the theory. T h e truth about the Court has al­ ways been more complicated.

For more than two hundred years, the Supreme Court has con­ fronted the same political issues as the other branches o f govern­ ment—with a similar mixed record o f success and failure. During his long tenure as chief justice, J o h n Marshall did as much as the framers o f the Constitution themselves to shape an enduring structure for the government o f the United States. In the decades that followed, how­ ever, the Court fared no better than presidents or the Congress in ameliorating the horror o f slavery or avoiding civil war. Likewise, during the period o f territorial and economic expansion before World W a r I , the Court again shrank from a position o f leadership, mostly preferring to accommodate the business interests and their political allies, who also dominated the other branches o f government. It was not until the 1 9 5 0 s and 1 9 6 0 s , and the tenure o f Chief J u s t i c e Earl Warren, that the Court consistently asserted itself as an independent and aggressive guarantor o f constitutional rights.

For the next thirty years, through the tenures o f Chief Justices Warren E . Burger and W i l l i a m H. Rehnquist, the Court stood nearly evenly divided on the most pressing issues before it. On race, sex, re­ ligion, and the power o f the federal government, the subjects that produced the enduring controversies, control of the Court generally belonged to the moderate swing justices, first Lewis F. Powell and then Sandra Day O'Connor, who steered the Court in line with their own cautious instincts—which were remarkably similar to those o f the American people. T h e result was a paradox. Like all their prede­ cessors, the justices belonged to a fundamentally antidemocratic in­ stitution. They were not elected; they were not accountable to the public in any meaningful way; their life tenure gave them no reason to cater to the will o f the people. Yet the touchstones o f the years 1 9 9 2 to 2 0 0 5 on the Supreme Court were decisions that reflected public opinion with great precision. T h e opinions were issued in the Court's customary language o f legal certainty—announced as i f the constitutional text and precedents alone mandated their conclu­ sions—but the decisions in these cases probably would have been the same i f they had simply been put up for a popular vote.

T h a t , now, may be about to change. Through the tense standoff o f the Burger and Rehnquist years, a powerful conservative rebellion against the Court was building. I t has been, in many respects, a remarkable ideological offensive, nurtured at various times in such

T H E N I N E 3

locales as elite law schools, evangelical churches, and, most impor­ tantly and most recently, the W h i t e House. Its agenda has remained largely the same over the decades. Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences in­ tended to assist African Americans. Speed executions. W e l c o m e reli­ gion into the public sphere. Because the Court has been so closely divided for so long, conservatives have made only halting progress on implementing this agenda. Now, with great suddenness (as speed is judged by the Court's usual stately pace), they are very close to total control. W i t h i n one vote, to be precise.

The Court by design keeps its operations largely secret from the out­ side world, but there are occasions when its rituals offer a window into its soul. One such day was September 6 , 2 0 0 5 , when the justices gathered to say good-bye to W i l l i a m Rehnquist, who had died three days earlier.

Rehnquist had had 1 0 5 law clerks in his thirty-three years on the Court, and they all knew him as a stickler for form, efficiency, and promptness. So well before the appointed hour, the group gathered in one of the Court's elegant conference rooms. Seven former clerks and a former administrative assistant had been chosen to carry Rehnquist's casket into the building, and they wanted to make sure they did it right. T h e eight o f them gathered around the representatives from the funeral home and asked questions with the kind o f intensity and pre­ cision that the chief used to demand o f lawyers arguing in front o f him. W h o would stand where? Should they pause between steps or not? Two feet on each step or just one? Only one o f them had been a pallbearer before, and he had words o f warning for his colleagues. " B e careful," said J o h n G . Roberts J r . , who had clerked for then associate justice Rehnquist from 1 9 8 0 to 1 9 8 1 . "It's harder than you think."

At precisely ten the pallbearers and the hearse met on First Street, in front o f Cass Gilbert's processional steps. T h e casket was like Rehnquist himself—plain and unadorned. T h e seven men and one woman grabbed the handles on the pine casket and turned to bring the chief inside the building for a final time. T h e soft sun o f a perfect late-summer morning lit the steps, but the glare off the marble was harsh, nearly oppressive.

As the pallbearers shuffled toward the Court, an honor guard o f the

4 Jeffrey Toobin

other law clerks stood in silence to the left. O n the right were the jus­ tices themselves. I t had been eleven years since there was a new jus­ tice, the longest period that the same nine individuals had served together in the history o f the Supreme Court. (It had been five decades, since the death o f Robert H. Jackson, in 1 9 5 4 , that a sitting justice had died.) T h e justices lined up according to the Court's iron law o f seniority, with the junior member toward the bottom o f the stairs and the senior survivor at the top.

T h e casket first passed Stephen G . Breyer, appointed in 1 9 9 4 by President B i l l Clinton. Such ceremonial duty ill suited Breyer, who still had the gregarious good nature o f a Capitol H i l l insider rather than the grim circumspection o f a stereotypical judge. He had just turned sixty-seven but looked a decade younger, with his bald head nicely tanned from long bike rides and bird-watching expeditions. Few justices had ever taken to the job with more enthusiasm or en­ joyed it more.

Breyer's twitchy exuberance posed a contrast to the demeanor of his fellow Clinton nominee, from 1 9 9 3 , R u t h Bader Ginsburg, stand­ ing three steps above him. A t seventy-two, she was tiny and frail— she clasped Breyer's arm on the way down. Elegantly and expensively turned out as usual, on this day in widow's weeds, she was gen­ uinely bereft to see Rehnquist go. T h e i r backgrounds and politics could scarcely have differed more—the Lutheran conservative from the Milwaukee suburbs and the Jewish liberal from Brooklyn—but they shared a love o f legal procedure. Always a shy outsider, Ginsburg knew that the chief's death would send her even farther from the Court's mainstream.

T h e casket next passed what was once the most recognizable face among the justices—that o f Clarence Thomas. His unforgettable con­ firmation hearings in 1 9 9 1 had seared his visage into the national consciousness, but the justice on the steps scarcely resembled the strapping young person who had transfixed the nation. Although only fifty-seven, Thomas had turned into an old man. His hair, jet black and full during the hearings, was now white and wispy. Injuries had taken him off the basketball court for good, and a sedentary life had added as much as a hundred pounds to his frame. The shutter o f a photographer or the gaze o f a video camera drew a scornful glare. Thomas openly, even fervently, despised the press.

David H. Souter should have been next on the stairs. W h e n Rehnquist died, Souter had been at his home in Weare, New Hampshire, but he

T H E N I N E 5

hadn't received word until it was too late to get to the morning's proces­ sion. It was hard to reach him when he was in New Hampshire, because Souter had a telephone and a fountain pen but no answering machine, fax, cell phone, or e-mail. (He was once given a television but never plugged it in.) He was sixty-five years old, but he belonged to a different age alto­ gether, more like the eighteenth century. Souter detested Washington, enjoyed the job less than any o f his colleagues, and cared little what oth­ ers thought of him. He would be back for the funeral the following day.

Anthony M. Kennedy was absent as well, and for equally revealing reasons. H e had been in China when Rehnquist died, and he, too, couldn't make it back until the funeral on Wednesday. Nominated by Ronald Reagan in 1 9 8 7 , Kennedy had initially seemed the most con­ ventional, even boring, o f men, the Sacramento burgher who still lived in the house where he grew up. B u t it turned out the prototyp­ ical country club Republican possessed a powerful wanderlust, a pas­ sion for international travel and law that ultimately wound up transforming his tenure as a justice.

Three steps higher was Antonin Scalia, his famously pugnacious mien softened by grief. H e had taken the position on the Court that Rehnquist left in 1 9 8 6 , when Reagan made him chief, and the two men had been judicial soul mates for a generation. An opera lover, Scalia was not afraid o f powerful emotions, and he wept openly at the loss o f his friend. Scalia had always been the rhetorical force o f their counterrevolutionary guard, but Rehnquist had been the leader. A t sixty-nine, Scalia too looked lost and lonely.

Sandra Day O'Connor wept as well. O'Connor and Rehnquist had enjoyed one of the more extraordinary friendships in the history o f the Court, a relationship that traversed more than fifty years, since she watched the handsome young law student heft trays in the cafeteria at Stanford Law School. (She would later join his class there and gradu­ ate in just two years, finishing just behind him, the valedictorian.) They both settled in Phoenix and shared backyard barbecues, even family vacations, until Rehnquist moved to Washington in 1 9 6 9 , joining the Court in 1 9 7 2 .

Nine years later, Ronald Reagan made O'Connor the first woman justice. Her long history with Rehnquist m i g h t have suggested that she would turn into his loyal deputy, but that never happened. Indeed, more than anyone else on the Court, it was O'Connor who frustrated Rehnquist's hopes o f an ideological transformation in the law and who came, even more than the chief, to dominate the Court.

6 Jeffrey Toobin

And though her g r i e f for Rehnquist was real, she may have been weeping for herself, too. She was seventy-five and her blond bob had turned white, but she loved being on the Supreme Court even more than Breyer did, and she was leaving as well. She had announced her resignation two months earlier, to care for her husband, who was slip­ ping further into the grip o f Alzheimer's disease. Losses enveloped O'Connor—a dear old friend, her treasured seat on the Court, and, worst o f all, her beloved husband's health.

And there was something else that drew O'Connor's wrath, i f not her tears: the presidency o f George W. Bush, whom she found arro­ gant, lawless, incompetent, and extreme. O'Connor herself had been a Republican politician—the only former elected official on the Court—and she had watched in horror as Bush led her party, and the nation, in directions that she abhorred. Five years earlier, she had cast the decisive vote to put Bush into the W h i t e House, and now, to her dismay, she was handing over her precious seat on the Court for him to fill.

Finally, at the top o f the stairs, was J o h n Paul Stevens, then as ever slightly removed from his colleagues. Gerald R . Ford's only appointee to the Court looked much as he did when he was named in 1 9 7 5 , with his thick glasses, white hair, and ever-present bow tie. Now eighty- five, he had charted an independent course from the beginning, mov­ ing left as the Court moved right but mostly moving according to his own distinctive view o f the Constitution. Respected by his colleagues, i f not really known to them, Stevens always stood apart.

T h e strain from the march up the forty-four steps showed on all the pallbearers except one. T h e day before carrying Rehnquist into the Supreme Court for a final time, J o h n Roberts had been nominated by President Bush to succeed Rehnquist as chief justice. He was only fifty years old, with an unlined face and unworried countenance. Even with his new burdens, Roberts looked more secure with each step, es­ pecially compared with his future colleagues.

T h e ceremony on the steps represented a transition from an old Court to a new one.

Any change would have been momentous after such a long period o f stability in membership, but Rehnquist's and O'Connor's nearly si-

T H E N I N E 7

multaneous departures suggested a particularly dramatic one—gener­ ational, ideological, and personal. Conservative frustration with the Court had been mounting for years, even though the Court had long been solidly, even overwhelmingly, Republican. Since 1 9 9 1 , it had consisted of either seven or eight nominees o f Republican presidents and just one or two Democratic nominees. B u t as the core o f the Republican Party moved to the right, the Court, in time, went the other way. Conservatives could elect presidents, but they could not change the Court.

Three justices in particular doomed the counterrevolution. Souter, drawing inspiration from icons o f judicial moderation like J o h n Marshall Harlan I I and Learned Hand, almost immediately turned into a lost cause for the conservatives. Like travelers throughout his­ tory, Kennedy was himself transformed by his journeys; his interna­ tionalism translated into a more liberal approach to legal issues. Above all, though, it was O'Connor who shaped the Court's jurispru­ dence and, with it, the nation.

Few associate justices in history dominated a time so thoroughly or cast as many deciding votes as O'Connor—on important issues rang­ ing from abortion to affirmative action, from executive war powers to the election of a president. Some m i g h t believe Cass Gilbert's marble steps really did protect the justices from the gritty world o f the Capitol. B u t the Rehnquist Court—the Court o f Bush v. Gore— dwelled in the center o f American political life.

In these years, the Court preserved the right to abortion but al­ lowed restrictions on the practice; the justices permitted the use o f affirmative action in higher education, but only in limited circum­ stances; they sanctioned the continued application o f the death penalty but also applied new restrictions on executions. Through one series of cases, the justices allowed for greater expression o f public piety in American life, but in a handful o f others, they gave a cautious embrace to the cause o f gay rights.

These decisions—the legacy o f the Rehnquist Court—came about largely because for O'Connor there was little difference between a j u ­ dicial and a political philosophy. She had an uncanny ear for American public opinion, and she kept her rulings closely tethered to what most people wanted or at least would accept. N o one ever pursued centrism and moderation, those passionless creeds, with greater passion than O'Connor. N o justice ever succeeded more in putting her stamp on

8 Jeffrey Toobin

the law o f a generation. B u t the unchanging facade of Cass Gilbert's palace offers only the illusion o f permanence. O'Connor's legacy is vast but tenuous, due mostly to her role in 5-A decisions, which are the most vulnerable to revision or even reversal with each new case.

T h a t process—the counterrevolution that had been stymied for twenty years—has now begun.

PART

O N E

1

For a long time, during the middle o f the twentieth century, it wasn't even clear what it meant to be a judicial conservative. Then, with great suddenness, during the presidency o f Ronald Reagan, judges and lawyers on the right found a voice and an agenda. Their goals reflected and reinforced the political goals o f the conser­ vative wing o f the Republican Party.

Earl Warren, who served as chief justice o f the United States from 1 9 5 3 to 1 9 6 9 , exerted a powerful and lasting influence over American law. T h e former California governor, who was appointed by D w i g h t D . Eisenhower, put the fight against state-sponsored racism at the heart o f his agenda. Starting in 1 9 5 4 , with Brown v. Board of Education, which outlawed segregation in public education, the jus­ tices began more than a dozen years o f sustained, and usually unani­ mous, pressure against the forces o f official segregation. W i t h i n the legal profession in particular, Warren's record on civil rights gave him tremendous moral authority. Warren and his colleagues, espe­ cially William J . Brennan J r . , his close friend and strategist, used that capital to push the law in more liberal directions in countless other areas as well. On freedom o f speech, on the rights o f criminal suspects, on the emerging field o f privacy, the Warren Court transformed American law.

To be sure, Warren faced opposition, but many o f his Court's deci­ sions quickly worked their way into the permanent substructure o f American law. New York Times Co. v. Sullivan, which protected news­ papers that published controversial speech; Miranda v. Arizona, which established new rules for interrogating criminal suspects; even Griswold v. Connecticut, which announced a right o f married people to

T H E F E D E R A L I S T W A R O F IDEAS

12 Jeffrey Toobin

buy birth control, under the broader heading o f privacy—all these cases, along with the Warren Court s many pronouncements on race, became unassailable precedents.

Richard M . Nixon won the presidency in part by promising to rein in the liberalism o f the Court, but even though he had the good for­ tune to name four justices in three years, the law itself wound up little changed. Under Warren E . Burger, whom Nixon named to suc­ ceed Warren, the Court in some respects became more liberal than ever. It was under Burger that the court approved the use o f school busing, expanded free speech well beyond Sullivan, forced Nixon himself to turn over the Watergate tapes, and even, for a time, ended all executions in the United States. Roe v. Wade, the abortion rights decision that still defines judicial liberalism, passed by a 7 - 2 vote in 1 9 7 3 , with three o f the four Nixon nominees (Burger, Lewis F. Powell, and Harry A. B l a c k m u n ) in the majority. Only Rehnquist, joined by Byron R . W h i t e , appointed by J o h n F. Kennedy, dissented.

Through all these years—from the 1 9 5 0 s through the 1 9 7 0 s — t h e conservatives on the Court like W h i t e and Potter Stewart did not dif­ fer greatly from their liberal colleagues. T h e conservatives were less willing to second-guess the work of police officers and to reverse crim­ inal convictions; they were more willing to limit remedies for past racial discrimination; they deferred somewhat more to elected officials about how to organize and run the government. B u t on the big legal questions, the war was over, and the liberals had won. And their vic­ tories went beyond the judgments o f the Supreme Court. T h e Warren Court transformed virtually the entire legal culture, especially law schools.

I t was not surprising, then, that on the day after Ronald Reagan de­ feated J i m m y Carter in 1 9 8 0 , Yale Law School went into mourning. O n that day, Steven Calabresi's torts professor canceled class to talk about what was happening in the country. T h e mood in the room was one o f bewilderment and hurt. A t the end, the teacher asked for a show o f hands among the ninety first-year students before him. How many had voted for Carter and how many for Reagan? Only Calabresi and one other student had supported the Republican.

T h e informal poll revealed a larger truth about law schools at the time. Most professors at these institutions were liberal, a fact that re-

T H E N I N E 13

fleeted changes that had taken place in the profession as a whole. T h e left-leaning decisions o f the Warren and Burger Courts had become a reigning orthodoxy, and support among faculty for such causes as af­ firmative action and abortion rights was overwhelming.

B u t even law schools were not totally immune from the trends that were pushing the nation's politics to the right, and a small group o f students like Calabresi decided to turn these inchoate tendencies into something more enduring. Along with Lee Liberman and David Mcintosh, two friends from Yale College who had gone on to law school at the University o f Chicago, Calabresi decided to start an or­ ganization that would serve as a platform to discuss and advocate con­ servative ideas in legal thought. They considered several names that would showcase their erudition—"The Ludwig von Mises Society," and "The Alexander B i c k e l Society"—but they settled on a more ele­ gant choice. They called themselves the Federalist Society, after the early American patriots who fought for the ratification o f the Constitution in 1 7 8 7 . Calabresi's guide on the Yale Law School fac­ ulty was Professor Robert B o r k . Liberman and Mcintosh started a Federalist branch at Chicago and recruited as their first faculty adviser a professor named Antonin Scalia.

The idea for a conservative legal organization was perfectly timed, and not just because o f the Republican ascendancy in electoral poli­ tics. In this period, liberalism may have been supreme at law schools, but it was hardly an intellectually dynamic force. In the 1 9 6 0 s , l i b ­ eral scholars at Yale and elsewhere were writing the law review arti­ cles that gave intellectual heft to the decisions o f the Warren Court, but by the eighties, the failures o f the Carter administration turned many traditional Democrats away from the practical realities o f law to a more exotic passion—advocating (or decrying) a movement known as Critical Legal Studies. Drawing heavily on the work o f thinkers like the Italian Marxist Antonio Gramsci and the French poststruc- turalist Jacques Derrida, CLS devotees attacked the idea that law could be a system o f neutral principles, or even one that could create a fairer and more just society. Rather, they viewed law mainly as a tool of oppression that the powerful used against the weak. Whatever its ultimate merits, CLS was singularly inconsequential outside the con­ fines o f law schools, its nihilism and extremism rendering it largely irrelevant to the work o f judges and lawmakers. A t law schools, then, the field was largely open for a vigorous conservative insurgency.

So the Federalist Society both reflected and propelled the growth o f

14 Jeffrey Toobin

the conservative movement. It held its first national conference in 1 9 8 2 , and by the following year there were chapters in more than a dozen law schools. Recognizing the intellectual potential o f the soci­ ety, conservative organizations like the J o h n M . Olin and Scaife foun­ dations made important early grants that allowed the Federalists to establish a full-time office in Washington. T h e Reagan administra­ tion began hiring Federalist members as staffers and, o f course, ap­ pointing them as judicial nominees, with B o r k and Scalia as the most famous examples. (Bork and Scalia both went on the D.C. Circuit in 1982. Calabresi himself went on to be a professor o f law at Northwestern.)

T h e young Federalists who started organizing in the early eighties did not merely strive to recapitulate the tactics o f their conservative elders. T h e prior generation, those who waged their decorous battle against the extremes o f the Warren Court, preferred "judicial re­ straint" to "judicial activism." For conservatives like Justices Stewart or J o h n Marshall Harlan I I , who were two frequent dissenters from Warren Court decisions, the core idea was that judges should defer to the democratic branches o f government and thus resist the tempta­ tion to overturn statutes or veto the actions o f government officials. B u t the new generation o f conservatives had more audacious goals. Indeed, they did not believe in judicial restraint, and they represented a new kind o f judicial activism themselves. They believed that consti­ tutional law had taken some profoundly wrong turns, and they were not shy about demanding that the courts take the lead in restoring the rightful order.

W i t h the election o f Ronald Reagan, conservative ideas suddenly had important new sponsors in Washington. Reagan was elected on prom­ ises o f shrinking the federal government, which he proposed to do by cutting the budgets for social programs. Many in the Federalist Society sought a legal route to the same goal. Back in 1 9 0 5 , the Supreme Court had said in Lochner v. New York that a law that set a maximum number o f hours for bakers was unconstitutional because it violated the bakers' freedom o f contract under the Fourteenth Amendment's protection o f "liberty" and "property." B y the 1 9 4 0 s , the Roosevelt appointees to the Supreme Court had repudiated the "Lochner era," and for decades no one had seriously suggested that there m i g h t be constitutional limits on the scope of the federal gov-

T H E N I N E 15

ernment's power. Then, suddenly, in the Reagan years, some conser­ vatives started questioning that wisdom and asserting that much o f what the federal government did was unconstitutional. (The second event ever sponsored by the Federalist Society was a speech at Yale in 1 9 8 2 by Professor Richard Epstein o f the University o f Chicago Law School in favor o f Lochner v. New York.) W h i l e Reagan was arguing that Congress should not pass regulations, the Federalists were saying that, under the Constitution, Congress could not.

Edwin Meese I I I , Reagan's attorney general in his second term, provided a framework for the emerging conservative critique o f the Warren and Burger era when he called for a "jurisprudence o f origi­ nal intention." T h e words o f the Constitution, he said, meant only what the authors o f the document thought they meant. Or, as the leading "originalist," Robert B o r k , put it, "The framers' intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed." According to B o r k , the mean­ ing o f the words did not evolve over time. T h i s was an unprecedented view o f the Constitution in modern times. Even before the Warren Court, most justices thought that the words o f the Constitution were to be interpreted in light o f a variety o f factors, beyond just the inten­ tions;"df the framers. As the originalists' greatest adversary, W i l l i a m Brennan, observed in 1 9 8 5 , "the genius o f the Constitution rests not in any static meaning it m i g h t have had in a world that is dead and gone, but in the adaptability o f its great principles to cope with cur­ rent problems and current needs."

In large measure, the debate over original intent amounted to a proxy for the legal struggle over legalized abortion. N o one argued that the authors o f the Constitution intended for their words to pro­ hibit states from regulating a woman's reproductive choices; to B o r k and Scalia, that ended the debate over whether the Supreme Court should protect a woman's right to choose. I f the framers did not be­ lieve that the Constitution protected a woman's right to an abortion, then the Supreme Court should never recognize any such right either. In the Roe decision itself, Harry Blackmun had acknowledged that the words of the Constitution did not compel his decision. "The Constitution does not explicitly mention any right o f privacy," B l a c k ­ mun had written, but the Court had over time "recognized that a right o f personal privacy, or a guarantee o f certain areas or zones o f privacy, does exist under the Constitution." T h e interpretive leap o f Roe was Blackmun's conclusion for the Court that "this right o f pri-

16 Jeffrey Toobin

vacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." And it was this conclusion above all that the new generation o f conservatives in Washington during the Reagan years began trying to persuade the Court to reverse.

O n e o f those young lawyers was Samuel A. Alito J r . , who was just six years out o f law school when he joined the staff o f the J u s t i c e Department shortly after Reagan was inaugurated in 1 9 8 1 . Four years later, he was presented with a classic dilemma for a committed legal conservative: how best to persuade the Court to overturn Roe v. Wade—all at once or a little bit at a time?

In 1 9 8 2 , Pennsylvania had tightened its restrictions on abortion, including requiring that women be prevented from undergoing the procedure without first hearing a detailed series o f announcements about its risks. T h e Court o f Appeals for the Third Circuit had de­ clared most o f the new rules unconstitutional—as violations o f the right to privacy and the rule o f Roe v. Wade. Alito had joined the staff o f the solicitor general, the president's chief advocate before the Supreme Court, and he was assigned the job o f suggesting how best to attack the T h i r d Circuit's decision and persuade the Supreme Court to preserve the Pennsylvania law. Around that time, over the Reagan administration's objection, a majority o f the justices had reaffirmed their support o f Roe. T h e question for Alito was what to do in light o f the justices' intransigence. In a memo to his boss on May 3 0 , 1 9 8 5 , Alito wrote, "No one seriously believes that the Court is about to overrule Roe. B u t the Court's decision to review [the Pennsylvania case] may be a positive sign." H e continued, " B y taking these cases, the Court may be signaling an inclination to cut back. W h a t can be made o f this opportunity to advance the goals o f bringing about the eventual overruling o f Roe v. Wade and, in the meantime, o f mitigat­ ing its effects?" Alito wound up recommending an aggressive line o f attack against Roe. " W e should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and i f so to what extent, that decision should be overruled," he wrote; at the same time, the J u s t i c e Department should defend the Pennsylvania law as consistent with Roe and the Court's other abor­ tion decisions.

T h e solicitor general filed a brief much in line with what Alito rec-

T H E N I N E 17

ommended, but the case, Thornburgk v. American College of Obstetricians and Gynecologists, turned out to be a clear defeat for the Reagan admin­ istration. In a stinging, almost contemptuous opinion, written by Blackmun, the Court rejected the Pennsylvania law, declaring, "The States are not free, under the guise o f protecting maternal health or potential life, to intimidate women into continuing pregnancies." In a plain message to the conservative activists now in charge at the J u s t i c e Department, he wrote, "The constitutional principles that led this Court to its decisions in 1 9 7 3 still provide the compelling reason for recognizing the constitutional dimensions o f a woman's right to decide whether to end her pregnancy." Raising the rhetorical stakes, Blackmun went on to quote Earl Warren's words for the Court in Brown v. Board of Education: "It should go without saying that the vi­ tality o f these constitutional principles cannot be allowed to yield simply because o f disagreement with them." To B l a c k m u n , the war on Roe was morally little different from the "massive resistance" that met the Court's desegregation decisions a generation earlier.

B u t while Roe commanded a majority o f seven justices in 1 9 7 3 , the decision in Tbornburgh was supported by only a bare majority o f five in 1 9 8 6 . So within the Reagan administration, the lesson o f the case was obvious—and one that conservatives took to heart. They didn't need better arguments; they just needed new justices.

Reagan himself had little interest in the legal theories spun by his J u s t i c e Department. He had long been on record as opposed to legal­ ized abortion, but the president was manifestly uncomfortable with the subject as well as with the most zealous advocates in the prolife cause. So when, early in his first term, he received the unexpected res­ ignation o f Potter Stewart, the president's first reaction was less ideo­ logical than political. H e wanted above all to fulfill his campaign promise to appoint the first woman to the Court, with her precise stands on the issues a distinctly secondary concern. After searching the small pool o f Republican women judges, Reagan selected the thoroughly obscure Sandra Day O'Connor in 1 9 8 1 . O'Connor's am­ biguous record on abortion meant that the evangelical wing o f the RepublicarrParty regarded her with hostility; J e r r y Falwell, then the leader of the Moral Majority and a key figure in Reagan's election, said "good Christians" should be concerned about O'Connor. B u t at

18 Jeffrey Toobin

this point, Falwell and his colleagues did not yet control the Republican Party, much less the presidency, so Reagan ignored their complaints. And true to form, O'Connor in her first abortion cases, like Thornburgh, tread cautiously, voting to uphold restrictions but never c o m m i t t i n g to an outright reversal o f Roe.

Reagan's reelection emboldened the hard-core conservatives in his administration, especially when it came to selecting judges. This was largely because W i l l i a m French Smith, the bland corporate lawyer who was attorney general in Reagan's first term, was replaced by Meese, who put transformation o f the Supreme Court at the top o f his agenda. Soon, Meese had his chance. In 1 9 8 6 , just days after the de­ cision in Thornburgh, Burger resigned as chief justice. Reagan's first move was an obvious one. During his fourteen years on the Court, W i l l i a m Rehnquist had grown from being an often solitary voice o f dissent to the leader o f the Court's ascendant conservative wing. J u s t sixty-one years old, and popular with his colleagues, he was the clear choice to replace Burger as chief. B u t who, then, to put in Rehnquist's seat?

Meese considered only two possibilities—Scalia or Bork, both waiting impatiently for the call in their nearby chambers at the D.C. Circuit. B o t h were real conservatives, not "squishes," as young Federalist Society lawyers referred to Harlan, Stewart, and the other moderate conservatives. B o r k had virtually invented originalism as an intellectual force, and he had been a vocal spokesman against almost every Supreme Court landmark o f the past two decades—especially, of course, Roe v. Wade. N i n e years younger, Scalia had a nearly identical ideological profile, i f not quite as distinguished an intellectual pedi­ gree. For his part, Reagan was taken by Scalia's gruff charm and liked the fact that Scalia would be the first Italian American on the Court. T h e Democrats, who were a minority in the Senate, decided to con­ centrate on stopping Rehnquist from becoming chief justice and so gave Scalia a pass. H e was confirmed unanimously, while Rehnquist won anyway by a 6 5 - 3 3 vote. At the same time, Bork was all but promised the next seat to come open.

Less than a year later, on J u n e 2 6 , 1 9 8 7 , Lewis Powell resigned, and Reagan promptly named B o r k as his replacement. A great deal had changed, however, including the Senate itself, which was now led by a Democratic majority. Reagan's popularity had slipped, thanks largely to the Iran-Contra affair, which had become public at the end o f 1 9 8 6 . There was no Rehnquist nomination to distract from a fight

T H E N I N E 19

over a new justice. And the seat at stake was not that o f Burger, who had become a reliable conservative vote, but that o f Powell, who was the swing justice of his day and the fifth vote for the majority in Thornburgh and other abortion rights cases. B o r k himself was an ornery intellectual, with a scraggly beard and without any natural ethnic or religious political base. For Democrats, in short, he was an inviting target.

More than anything, the fight over Bork's nomination illustrated that Meese and his allies had done a better job o f persuading them­ selves o f the new conservative agenda than they had o f convincing the country at large. In truth, many o f the Warren Court precedents—the ones Bork had attacked for so long—remained popular with the pub­ lic and, consequently, in the Senate. B y 1 9 8 7 , the Miranda warnings were deeply ingrained in the culture, not least because o f their end­ less repetition on television police dramas; the word privacy may not have appeared in the Constitution but Bork's criticism o f that r i g h t — and his defense o f Connecticut's right to ban the sale o f birth con­ trol—sounded extreme to modern ears.

Most of all, though, racial equality ( i f not affirmative action) had become a bedrock American principle, and B o r k had simply backed the wrong side during the civil rights era. In 1 9 6 3 , he had written a notorious article for the New Republic in which he had assailed the pending Civil R i g h t s Act. Forcing white barbers to accept black cus­ tomers, Bork wrote, reflected "a principle o f unsurpassed ugliness." More than his views about privacy and abortion, it was Bork's history on race that doomed his nomination. T h e key block o f voters in the Senate were moderate Democrats from the South like Howell Heflin of Alabama, who were actually sympathetic to Bork's cultural conser­ vatism. B u t these senators were all elected with overwhelming black support—and they would not abide views that, fairly or not, sounded racist. Bork ultimately lost by a vote o f 5 8 - 4 2 .

Enraged by the attacks on Bork, Reagan had said he would nomi­ nate a replacement for B o r k that the senators would "object to as much as the last one." So Meese and his allies tried to foist a poten­ tially even more conservative, and a much younger, nominee on the Senate, Douglas H. Ginsburg, a recent Reagan appointee to the D . C . Circuit. B u t Ginsburg's nomination collapsed over a few tragicomic days, following revelations that the law-and-order judge had smoked marijuana as a professor at Harvard Law School.

Howard Baker now stepped into the process. A former senator who

20 Jeffrey Toobin

had been brought in as chief o f staff to steady the W h i t e House after the Iran-Contra revelations, Baker had little interest in the ideologi­ cal groundbreaking that Meese was leading at the J u s t i c e De­ partment. Baker was an old-fashioned conservative who wanted a justice in his own mold, a believer in judicial restraint. W i t h the W h i t e House reeling from multiple fiascos, Baker just wanted to pick someone who would be confirmed—a conservative, to be sure, but not necessarily someone who would please Meese and the other true be­ lievers. T h e call went out to Anthony M . Kennedy, a thoughtful and earnest judge on the N i n t h Circuit from Sacramento. H e was con­ firmed quickly and without incident.

George H . W. Bush served as a transitional figure between the old Republican Party and the new. H e was born to the country club G O P o f his father, the cautious and corporate senator from Connecticut, but the forty-first president was elected in 1 9 8 8 courtesy of the evangeli­ cal and other hard-core conservatives who were increasingly dominat­ ing the party. In the Reagan years, figures like Jerry Falwell, Pat Robertson, and, later, J a m e s C. Dobson were content to be heard by the W h i t e House; but in the first Bush presidency, they wanted more. And the issues that meant the most to them—abortion, above a l l — were decided by the Supreme Court. They wanted their own justices.

O n the Court, and in much else, Bush tried to finesse the demands o f the far right. To win their support in the first place, Bush had sworn fealty to the new conservative orthodoxies, including opposi­ tion to Roe v. Wade, but it was clear that his heart was never in the cause. For this reason, then, Brennan's resignation in J u l y 1 9 9 0 was for Bush more an annoyance than an opportunity. H e was preoccupied with the sudden fall o f Communism and had no stomach for a fight in the Democratic Senate over a Supreme Court nominee—especially about issues that meant little to him personally. A Yankee aristocrat, Bush surrounded himself with men in the same mold, like his W h i t e House counsel, C. Boyden Gray, and attorney general, Richard Thorn­ burgh (who as governor o f Pennsylvania was the defendant in the 1 9 8 6 abortion case).

As his first choice for the Supreme Court, Bush chose yet another man with a background and temperament similar to his own—David H. Souter. T h e appointee had spent virtually his entire career in New

T H E N I N E 21

Hampshire state government, where he had a nearly invisible public profile. (Thurgood Marshall, in his final cranky years on the Court, still spoke for many when he greeted the news with "Never heard o f him.") J o h n Sununu, the W h i t e House chief o f staff, promised con­ servatives that the appointment would be "a home run" for them, but Souter's moderate testimony at his confirmation hearing suggested otherwise. Democrats, grateful that Bush had avoided a confronta­ tional choice, raised few objections, and Souter was confirmed by a vote of 9 0 - 9 .

Even before Souter's record refuted Sununu's prediction (as it surely did), conservatives registered their outrage at his appointment—and their demands for Bush's next choice. Sununu promised that the pres­ ident would fill the next vacancy with a nominee so conservative that there would be "a knock-down, drag-out, bloody-knuckles, grass­ roots fight." Thus, a year later, Clarence Thomas.

Marshall resigned on J u n e 2 7 , 1 9 9 1 , almost a year to the day after Brennan, and this time conservatives insisted that Bush appoint one o f their own. B y this point, with Brennan also gone, Marshall was the last full-throated liberal on the Court. His seat was especially precious to his political opponents, since only two members o f the Thornburgh majority from 1 9 8 6 — B l a c k m u n and Stevens—remained; the re­ placements for the other three would all be selected by presidents who publicly opposed Roe v. Wade. T h e decision appeared as good as over­ ruled.

Thomas's confirmation hearings, o f course, turned into a malign carnival o f accusation and counterclaim between the nominee and his one-time aide Anita H i l l . B u t that sideshow obscured the larger sig­ nificance o f Thomas's appointment. Even though the nominee was unusually reticent in answering the senators' questions, it was easy to infer that the forty-three-year-old judge believed in what m i g h t be called the full Federalist Society agenda: that the justices should in­ terpret the Constitution according to the original intent o f the framers, that Congress had repeatedly passed laws that infringed on executive power and violated the Constitution, and that the crown jewels o f liberal jurisprudence—from Miranda to Roe—should be overruled.

The scope and speed o f the conservative success was remarkable. In just about a decade, conservatives had taken ideas from the fringes o f intellectual respectability to an apparent majority on the Supreme Court. Thomas's confirmation, on October 1 5 , 1 9 9 1 , by a vote o f

22 Jeffrey Toobin

52—48, meant that Republican presidents had appointed eight of the nine justices—and Byron W h i t e , the lone Democrat, was more con­ servative, and a stronger opponent o f Roe, than most o f his colleagues. W i t h Rehnquist, O'Connor, Scalia, Kennedy, Souter, and Thomas completing the roster, how could the conservative cause lose?

G O O D VERSUS EVIL

E lections impose rituals o f transition on the executive and leg­islative branches, but the judiciary, especially the Supreme Court, glides uninterrupted into the future. T h e justices who take their places from behind the red curtain on the first Monday in October are usually the same ones who appeared the year before, and they are likely to be there the following October as well. T h e Court is defined more by continuity than by change. B u t still, at some mo­ ments, even the hushed corridors o f the Court crackle with anticipa­ tion o f a new order. T h e fall o f 1 9 9 1 was such a moment.

The signs o f transition at the Court were physical as well as ideo­ logical. It was one o f the rare times in Court history when four retired justices were alive. Warren E . Burger, Lewis F. Powell, W i l l i a m J . Brennan J r . , and Thurgood Marshall were still making occasional vis­ its to the Court, all o f them walking embodiments o f both the sweep o f the Court's history and its relentless retreat into the past.

Burger, the white-maned former chief justice, who had left the bench in 1 9 8 6 , maintained a surpassing ability to annoy his col­ leagues, even in retirement. H e had departed the Supreme Court to lead a commission on the bicentennial o f the Constitution, feeding, perhaps, his taste for pomp, which was always stronger than his inter­ est in jurisprudence. (The celebration in 1 9 8 7 was widely ignored, even in legal circles.) Worse, Burger's taste for bureaucratic empire building had led to the construction o f a huge structure for the Federal Judicial Center on a desolate plot o f land near Union Station. Retired justices of the Court traditionally maintained chambers in the Supreme Court building, but among the hazy justifications for the F J C was that it would provide a new home for retired justices.

24 Jeffrey Toobin

Characteristically, Burger neglected to check with the justices them­ selves to see i f they had any interest in uprooting themselves from Cass G i l b e r t s marvelous structure. None had.

Powell, the Virginia gentleman and centrist who controlled the outcome o f so many important decisions, remained as popular as ever and even, in one way, influential. In 1 9 8 6 , the year before he retired, he had cast the deciding vote in Bowers v. Hardwick, which upheld Georgia's right to criminalize consensual gay sodomy. Byron R . W h i t e ' s opinion for the Court was brusquely dismissive of the very notion o f a constitutional protection for gay sex. B u t in 1 9 9 0 , Powell told a law school audience that he "probably made a mistake" in join­ ing the majority in that case. Powell's admission kept the controversy about Bowers alive and signaled that his favored disciple, O'Connor, m i g h t also have doubts about having voted the same way.

Burger and Powell passed without much notice on their visits to the Court, but Brennan always drew a crowd. T h e history o f the Court abounds with long tenures, but even three decades does not guaran­ tee that a justice will leave much o f a legacy. Forgotten justices like J a m e s M . Wayne (thirty-two years on the Court), Samuel Nelson (twenty-seven), and Robert Grier (twenty-four) illustrate that longevity and obscurity can coexist. B u t Brennan's thirty-four years ranked among the most consequential tenures the Court had ever seen. His opinion in Baker v. Carr led to the rule of one person, one vote; New York Times Co. v. Sullivan transformed the law o f libel to ex­ pand First Amendment protections for the press; his opinion in Eisenstadt v. Baird made the result in Roe v. Wade almost inevitable. B u t even more than the opinions he wrote himself, there was his role as the Court's master vote counter, first with his great friend Earl Warren and then as the wily leader o f the Court's shrinking but still influential liberal wing.

Brennan's influence didn't end with retirement, either, and not just because hundreds o f his opinions remained precedents of the Court. H e grew especially close to his successor, David Souter. "I'd stick my head in his chamber door, and he'd look up and say, 'Get in here, pal,' and when I was ready to go he'd call me pal again," Souter said at Brennan's funeral in 1 9 9 7 . "He wouldn't just shake my hand; he'd grab it in both o f his and squeeze it and look me right in the eye and repeat my name. I f he thought I'd stayed away too long, he'd give me one o f his bear hugs to let me know that I'd been missed. . . . And he m i g h t tell me a few things that were patently false, which he thought

T H E N I N E 25

I might like to hear anyway. He'd bring up some pedestrian opinion that I'd delivered, and he'd tell me it was not just a very good opin­ ion but a truly great one, and then he'd go on and tell me it wasn't just great but a genuine classic o f the judge's art. And I'd listen to him, and I'd start to think that maybe he was right." Brennan's seven years with Souter put a stamp on the younger man's career.

Thurgood Marshall was the least seen o f the retirees. H e was the only member o f the Court since Warren who would have held a place in American history even i f he had never become a justice. As an ar­ chitect o f the N A A C P Legal Defense and Education Fund's assault on segregation, he had argued and won many o f the civil rights land­ marks o f the 1 9 4 0 s and 1 9 5 0 s , including Brown v. Board of Education in 1 9 5 4 . Lyndon Johnson had put him on the Court in 1 9 6 7 , but Marshall's tenure had been unhappy. T h e causes he cared about were in eclipse for most o f those years, and he spent his last years fighting ill health and trying to hang on until a Democratic president could appoint his successor. " I f I die, just prop me up!" he would instruct his law clerks.

So Marshall's resignation in 1 9 9 1 , a week before his eighty-third birthday, came as a surprise. "I'm getting old, and coming apart," he explained at a freewheeling press conference the next day, where he sat slumped over in a chair, looking disheveled. H e was asked whether he thought President George H . W Bush had an obligation to appoint another minority justice in his place. "I don't think that should be a ploy," he answered, "and I don't think it should be used as an excuse, one way or the other." A reporter followed up, "An excuse for what?" Marshall's answer seemed directed at his most likely successor. "Doing wrong," he said. "Picking the wrong Negro. . . . M y dad told me way back . . . there's no difference between a white snake and a black snake. They'll both bite."

Unwritten Supreme Court protocol called for a wall o f separation be­ tween the sitting justices and the confirmation process. Nominees were never so presumptuous as to make contact with the Court before they were confirmed, and justices generally refrained from comment­ ing, even in private, about their possible new colleagues. So it was, at first, with the confirmation hearings o f Clarence Thomas, which be­ gan on September 1 0 , 1 9 9 1 .

26 Jeffrey Toobin

There was never much doubt that Thomas would be the nominee. A year earlier he had been confirmed for the United States Court of Appeals for the D . C . Circuit, and the prospect o f his replacing Marshall had been much discussed then. T h e dilemma facing Bush and the Republicans was clear. I f Marshall left, they could not leave the Supreme Court an all-white institution; at the same time, they had to choose a nominee who would stay true to the conservative cause. T h e list o f plausible candidates who fit both qualifications pretty much began and ended with Clarence Thomas.

O n J u l y 1, 1 9 9 1 , President George H. W. Bush introduced Thomas as his nominee at a press conference at his vacation home in Kennebunkport, Maine. There was awkwardness about the selection from the start. "The fact that he is black and a minority has nothing to do with this," Bush said. "He is the best qualified at this time." T h e statement was self-evidently preposterous; Thomas had served as a judge for only a year and, before that, displayed few of the custom­ ary signs o f professional distinction that are the rule for future jus­ tices. For example, he had never argued a single case in any federal appeals court, much less in the Supreme Court; he had never written a book, an article, or even a legal brief o f any consequence. Worse, Bush's endorsement raised themes that would haunt not only Thomas's confirmation hearings but also his tenure as a justice. Like the contemporary Republican Party as a whole, Bush and Thomas op­ posed preferential treatment on account o f race—and Bush had cho­ sen Thomas in large part because o f his race. T h e contradiction rankled.

S t i l l , there was much to admire in Thomas, as the early days o f his confirmation hearings showed. Thomas began his testimony with a personal story that was extraordinary by any measure. He had grown up in poverty in Pin Point, Georgia, without a father and with a mother who earned twenty dollars every two weeks as a maid. She was so poor, in fact, that she had to send her two boys to live with their grandparents. "Imagine, i f you will, two little boys with all their be­ longings in two grocery bags." Hard work put him through Holy Cross College and Yale Law School, and he had thrived during his ca­ reer in government, as an ever-rising official in the federal bureaucracy during the Reagan administration.

S t i l l , as soon as Thomas began answering questions, problems emerged. Four years earlier, Robert Bork's nomination had been de­ feated because he expounded broadly about his well-established, and

T H E N I N E 27

very conservative, judicial philosophy. Consequently, the conventional wisdom had become that nominees should avoid taking substantive stands on most legal issues. B u t Thomas took the approach to an ex­ treme. In awkward, wooden answers, he gave the impression that he had no views, not simply that he was declining to express them. In one infamous exchange, he told Senator Patrick Leahy that he had never even discussed Roe v. Wade.

Still, there was little organized opposition to Thomas, and his con­ firmation looked assured. O n Friday, September 2 7 , the Judiciary Committee split 7 - 7 on Thomas, but even that tepid nonendorse- ment meant that the full Senate would give him an up-or-down vote. There was little reason to think he m i g h t lose.

Then, on Saturday, October 6 , the name Anita H i l l leaked to the press, and the rest o f the Thomas confirmation battle became a tawdry national obsession. H i l l had been a young lawyer on Thomas's staff, first at the Department o f Education and then at the Equal Employment Opportunity Commission. During those years, she had confided to friends that her boss had made a series o f bizarre sexual comments and overtures to her. In the summer leading up to Thomas's confirmation hearings, H i l l had discussed with some o f those friends whether she should come forward with what she knew about the nom­ inee. Through these conversations, Hill's name reached Democratic staffers on the Judiciary Committee and then several reporters. O n c e her name became public, the committee decided that she should tell her story in public.

Over seven surreal hours on Friday, October 1 1 , H i l l gave testi­ mony that soon became part o f American folklore. She said Thomas had talked about his large penis, about his skill at giving oral sex, and about pornographic films starring Long D o n g Silver. There was "one o f the oddest episodes," when Thomas looked at a soda can in his of­ fice and asked, " W h o has put pubic hair on my Coke?" Later that night, after Hill's marathon testimony, in a confrontation that would become equally famous, Thomas returned to the hearing room. H e denied Hill's allegations in their entirety and denounced the proceed­ ing as a "high-tech lynching for uppity blacks." Thomas rejected Hill's allegations o f mistreatment, but otherwise refused to answer any questions about his relationship with H i l l or his personal life.

T h e nation watched as the hearings continued through the week­ end, with Republican senators accusing H i l l o f "erotomania" and per­ jury, and o f making up her testimony from her reading o f The Exorcist.

28 Jeffrey Toobin

There were supporting witnesses for both sides, and the hearings didn't end until 2 : 0 3 a.m. on Monday, October 1 4 , less than forty- eight hours before the Senate was scheduled to vote.

A t the Supreme Court, a handful o f clerks had caught parts of the hearing on the few televisions that were scattered in offices on the sec­ ond floor o f the Court. B u t it wasn't just custom that led the Court to ignore the circus on the other side o f First Street. There was more im­ portant news, closer to home. Nan Rehnquist, the chief's wife, was dying.

W h e n he became chief justice in 1 9 8 6 , Rehnquist arrived with one great advantage. H e wasn't Warren Burger.

In his seventeen years as chief, Burger had managed to alienate all o f his colleagues. T h e greatest breach, and the most surprising, was with Harry Blackmun. N o closer friends had ever served together on the Court. They had met in kindergarten in St. Paul, Minnesota, and grown up together. In 1 9 3 3 , Blackmun was best man at Burger's wedding. Burger made his name first in national politics, serving in a senior post in the Eisenhower J u s t i c e Department, and he engineered both his own and then Blackmun's appointment to the federal court o f appeals. Burger became chief justice in 1 9 6 9 , and a year later, after the nominations o f Clement Haynsworth and G . Harrold Carswell failed, Burger inveigled President Nixon to name Blackmun in their place. In their early days on the Court, the two men were known as the Minnesota Twins.

T h e relationship soon soured. In part, the differences between the two men were simply ideological, as Blackmun moved closer to Brennan and Marshall on the left. B u t it was more the way Burger ran the Court that came to madden Blackmun and his colleagues. The main duty o f a c h i e f justice is to chair the Court's conference every Friday when it is in session. A t those secret meetings, held in the chief's conference room, the nine justices review the argued cases and cast their votes. W h e n he is in the majority, the chief justice assigns who will write the opinion for the Court; when the chief is in dissent, the senior associate justice in the majority makes the assignment.

T h e problem, it seemed, was that Burger could not run the confer­ ence. Discussions meandered aimlessly and ended inconclusively. Justices sometimes thought that Burger would switch his vote to

T H E N I N E 29

keep control o f opinions or even try to assign cases where he was not in the majority. (William O. Douglas, then the senior associate jus­ tice, thought that was how Burger assigned B l a c k m u n to write Roe v. Wade.) Potter Stewart, who was appointed by Eisenhower in 1 9 5 8 , grew so frustrated with Burger that he took an unprecedented form o f revenge. Stewart responded eagerly to an approach from B o b Woodward, who had just become famous for his work on Watergate, letting the journalist know that he would cooperate with an extended investigation o f the Burger Court. Stewart's interviews provided a ba­ sis for The Brethren, written by Woodward and Scott Armstrong and published in 1 9 7 9 - T h e book, full o f vivid inside detail that had never before been divulged to the public, portrayed Burger as a pompous, egomaniacal bumbler. (Stewart wound up resigning in 1 9 8 1 , at the unusually young age o f sixty-six, opening the seat that went to O'Connor.)

Rehnquist never went public with his distress about Burger, but he also seethed. In the Burger years, opinions came out late or not at all, forcing cases to be "put over," or reargued, in subsequent years. O n c e , when Lewis Powell was ill, Rehnquist wrote him about his frustration with Burger. Powell, who joined the Court at the age o f sixty-four, served as a kind o f older brother to all the justices, and Rehnquist felt comfortable unburdening himself in alternately brusque and whimsi­ cal ways.

"Sometimes when [Burger] runs out o f things to say, but he doesn't want to give up the floor, he gives the impression o f a Southern Senator conducting a filibuster. I sometimes wish that neither the Chief nor B i l l Brennan would write out all their remarks beforehand and deliver them verbatim from the written page," Rehnquist wrote. " B i l l is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. T h e n o f course Harry Blackmun can usually find two or three sinister aspects o f every case which 'disturb' him, although they have nothing to do with the merits o f the question. And J o h n Stevens, today, as always felt very strongly about ever£ case, and mirabile dictu had found just the right solution to every one. As you m i g h t imagine, my conference discus­ sion was, as always, perfectly suited to the occasion: well-researched, cogently presented, and right on target!"

So when Rehnquist became chief in 1 9 8 6 , Burger had provided him with a clear picture o f how not to run a conference. Rehnquist set out to do it differently, and he led by example. H e would begin by

30 Jeffrey Toobin

briefly summarizing the case, giving his own view o f the proper re­ sult, then going around the table in order o f seniority. (The tradition had been for discussion in seniority order, then votes in reverse sen­ iority order. Rehnquist thought that was a waste of time and com­ bined the two rounds into one.)

T h e other justices followed his example. Their comments were shorter, the resolution o f the cases was clearer. N o one spoke twice be­ fore everyone had a chance to speak once. In time, the brevity o f the conferences would come to have a large and unexpected impact on the workings o f the Court, but for the moment everyone was pleased with the efficiency.

Case assignments changed, too. Every chief justice wields power through assigning big cases to his favorites (or, especially, to himself), but Rehnquist made the system as fair as possible. N o one received a new assignment until he (or she) had finished the previous one. As with speaking at conference, every justice was assigned one case be­ fore anyone was assigned two. Rehnquist didn't interfere with assign­ ments when he was in the minority. Everyone on the Court, liberals and conservatives alike, welcomed the changes.

One o f the signatures o f the Burger years was that the Court de­ cided more and more cases every year. T h e number o f filings in­ creased, but the number o f cases the justices accepted jumped even faster. B y the m i d - 1 9 8 0 s , they were hearing as many as 1 5 0 cases a year—double the number from the 1 9 5 0 s . Like the chaotic confer­ ences, the ever-rising number o f lawsuits contributed to an atmo­ sphere o f chaos. In those jumbled final days o f the term each year, Burger often couldn't corral five justices to agree on a majority opin­ ion. T h e splintered justices would thus fail to settle the issue before them and therefore offer little guidance to the lower courts address­ ing similar questions. A t a basic level o f competence, the Court wasn't doing its job.

For the most part, the justices controlled their calendar; they could decide how many cases to hear simply by granting or refusing writs o f certiorari. (Four votes are needed to grant a wrft to hear a case.) As it happened, W h i t e and Blackmun had idiosyncratic views o f the cer­ tiorari process. W h i t e thought the Court should grant cert whenever there was even a suggestion that two circuit courts o f appeals viewed an issue differently; other justices thought it necessary to resolve only significant circuit splits. B l a c k m u n regarded a denial o f cert as tanta­ mount to a decision on the merits, so he wanted to grant whenever he

T H E N I N E 31

disagreed with a lower court's view. W h i t e and Blackmun's ap­ proaches, plus various combinations o f others, meant the caseload was becoming close to unmanageable.

B y the time Burger resigned, all o f the remaining justices wanted to reduce the number o f cases. B u t how to do it in a way that wouldn't also take away their opportunity to advocate their own quirky view o f the cert process? In a little-noticed development, Rehnquist figured out a solution. One area the justices all wanted to pare was so-called mandatory appeals. Certain federal laws, mostly in obscure areas, gave the parties the absolute right to have their cases heard by the Supreme Court. These cases, which amounted to a dozen or more every year, absorbed a lot o f the Court's time on trivial issues. So Rehnquist lob­ bied Congress to change the law. T h e task required just the kind o f Washington savvy that Burger claimed to have but didn't. Rehnquist accomplished his mission in just two years. In 1 9 8 8 , Congress passed a law that essentially gave the Supreme Court complete control o f its docket. To a person, the justices were extremely grateful to the chief.

Rehnquist's personality also changed the atmosphere on the Court. Burger was an Anglophile who collected antiques and fine wines. ( W h e n Blackmun joined the Court, Burger gave him a top hat as a gift.) Such was Burger's vanity that he placed a large cushion on his center seat on the bench, so he would appear taller than his colleagues. Rehnquist had none o f those pretensions, at least in his early years as chief. H e had a single beer and one cigarette at lunch every day. (Later, he struggled, with intermittent success, to quit smoking and switched to what he would always call a "Miller's Lite.") B y the time he became chief, Rehnquist had pared his long sideburns and dropped the wide ties that were his concessions to 1 9 7 0 s fashion, but he still cut a shambling figure when he took his lunchtime strolls around the neighborhood.

J o h n Dean, Nixon's W h i t e House counsel, remembered that when he first introduced Rehnquist to the president, the then—assistant at­ torney general "was wearing a pink shirt that clashed with an awful psychedelic necktie, and Hush Puppies." According to the W h i t e House tapes, after Rehnquist left, Nixon asked Dean, "Is he Jewish? He looks it. . . . That's a hell o f a costume he's wearing, just like a clown." As chief, Rehnquist, a Lutheran o f Swedish ancestry, disposed o f the worst o f the ties but kept the Hush Puppies.

For a large, strapping man, Rehnquist had a delicate constitution. He had a chronically bad back, from an injury he sustained while gar-

32 Jeffrey Toobin

dening, and the pain would sometimes cause him to stand up during oral arguments at the Court and take a few steps behind his chair. In the early 1 9 8 0 s , he was even hospitalized for the back problems, and the treatment created new issues. T h e painkillers caused him to slur his words, and the problem became embarrassingly noticeable when he asked questions in Court. T h e F B I investigation in connection with his promotion to c h i e f justice revealed that Rehnquist's medical problems were more serious than the public was led to believe. He had been addicted to the sedative Placidyl for at least four years, and when he was hospitalized during his withdrawal from the medication in 1 9 8 1 , he suffered hallucinations. O n one occasion, he told a nurse that "Voices outside the room are saying they're going to kill the pres­ ident." S t i l l , by the time he became chief, in 1 9 8 6 , his condition ap­ pears to have stabilized, in part because he took up tennis. Even though he was entitled to hire four law clerks, he generally took only three, which suited his weekly doubles game.

Rehnquist had married his wife, Natalie Cornell, known as Nan, after his service in World W a r I I . A native o f Wisconsin, Rehnquist had developed a taste for desert heat during his time as a weather spotter in North Africa, and the newlyweds settled in Phoenix. (The chief's military service also instilled in him a lifelong curiosity about the weather that matched his interest in low-stakes gambling. He'd often bet his law clerks how much snow had fallen in the plaza in front o f the Court.) Nan matched her husband in a mutual absence of pretensions, and their marriage was long and happy. B u t shortly after Rehnquist became chief, Nan was diagnosed with cancer. Their strug­ gle with her illness, combined with the markedly improved atmo­ sphere at the Court, only deepened the affection o f Rehnquist's colleagues for him. She died on October 1 7 , 1 9 9 1 .

T h a t was just two days after Thomas, at long last, won confirmation in the Senate. B u t the tally o f votes on October 15 didn't conclude the drama surrounding Thomas's nomination. Hill's testimony had set off a furious scramble among many journalists and Democratic activists to corroborate or refute her charges. (Records o f Thomas's videotape rentals were o f particular interest.) Rumors abounded that other women were going to come forward with evidence o f objectionable

T H E N I N E 33

behavior by Thomas. Even though he had been confirmed, Thomas would not actually become a justice—and thus removable only by impeachment by the House and conviction by the Senate—until he took the oath o f office. And before the furor over H i l l erupted, the W h i t e House and Rehnquist had tentatively planned for Thomas to take it from the chief justice on November 1.

B u t that was seventeen full days after the Senate vote—a period o f time when anything could happen. Thomas's supporters wanted him sworn in immediately. B u t with Nan Rehnquist's death on October 1 7, the W h i t e House faced the delicate problem o f intruding on the chief justice's grief for a final act o f damage control on Thomas's nom­ ination.

At first the administration tried to finesse the problem, by holding an unofficial swearing i n — a party, in effect—on the W h i t e House lawn on Friday, October 1 8 . T h e ceremony would have no legal sig­ nificance, but it would contribute to an atmosphere o f finality around the confirmation. Hundreds o f guests, including many members o f Thomas's family (including his father, from whom he had been long estranged until shortly before his nomination) and celebrities like Sylvester Stallone and R e g g i e Jackson, joined the president to salute the new justice.

Still, Thomas was not yet an actual member o f the Court, and in­ vestigative reporters were still hard at work. W h i t e House officials decided the stakes were high enough to risk offending Rehnquist, so they asked him to administer the oath to Thomas only days after Nan Rehnquist's death. T h e c h i e f agreed, and the swearing in took place on October 2 3 in a conference room at the Court, the first such pri­ vate ceremony in fifty years. T h e official explanation for the speeded- up procedure was to allow Thomas's secretaries and clerks to get on the Supreme Court payroll—a transparent rationalization since his employees were already on the federal payroll at the D . C . Circuit.

The rushed oath turned out to be a wise move. T h a t same day, ac­ cording to J a n e Mayer and J i l l Abramson, three reporters for the Washington Post "burst into the newsroom almost simultaneously with information confirming that Thomas' involvement with pornography far exceeded what the public had been led to believe." They had tes­ timony from eyewitnesses and the manager o f a video store where Thomas rented such fare. B u t since Thomas had been sworn in, the Post decided not to pursue the issue and dropped the story.

34

T h e whole Thomas confirmation could scarcely have been a greater as­ sault on the Court's sense o f seemliness. T h e crudity o f the accusa­ tions, the brutality o f Thomas's response, the vindictive discourse on all sides made for a perfectly awful combination. That the W h i t e House, i f not Thomas himself, had intruded on Rehnquist's grieving for political purposes made it even worse.

O'Connor, who was considered the social as well as the political center o f the Court, had a habit o f dividing the world—people, build­ ings, controversies, issues—into two categories: attractive and unat­ tractive. T h e words referred not so much to what was or wasn't pleasing to the eye but rather to an overall level o f decency and lika- bility. To her, and her colleagues at the Court, the Thomas hearings defined unattractive.

T h e n , it got worse. T h e November 1 1 , 1 9 9 1 , issue o f People maga­ zine featured a seven-page spread on Clarence and Virginia Thomas and their view o f the confirmation ordeal. Ginny Thomas was a polit­ ical force in her own right, a Labor Department lawyer at the time and later a senior official with the Republican congressional leader­ ship and with conservative foundations. She said that after Hill made her claims, "the Clarence Thomas I had married was nowhere to be found. H e was just debilitated beyond anything I had seen in my life. About 1 2 : 4 5 a.m., he said, T need you to call your two friends from your Bible-study group, and their husbands, and get them here with me in the morning to pray.' Clarence knew the next round o f hearings to begin that day was not the normal political battle. It was spiritual warfare. Good versus evil. W e were fighting something we didn't un­ derstand, and we needed prayerful people in our lives. W e needed God." T h e couple posed for photographs—grinning cheek to cheek, holding hands on the plush carpet, curled up on the sofa reading the B i b l e . Thomas told the reporter, "It's been brutal, just brutal. I don't know i f it's over, but we found a way to survive. And we have each other."

T h e interview came at a time when the justices rarely said anything to the press, much less engaged in soul baring for People magazine. Thomas's cooperation with the magazine was especially inappropriate because, just a month earlier, he had refused to answer exactly these kinds o f questions about his personal life before the Judiciary

T H E N I N E 35

Committee. T h e People spread compounded the Court's sense o f bewil­ derment about him.

Thomas moved into his chambers and heard . . . nothing from his new colleagues. In part, this was just the style o f the Rehnquist Court. T h e justices did not casually drop by one another's offices. A t the D.C. Circuit and in his other government jobs, Thomas liked to wander the halls, shoot the breeze, or make spur-of-the-moment lunch plans, but that simply wasn't done at the Court. H e met his new colleagues at conference, where they greeted him cordially, but their interaction stopped there. For Thomas, the silence in his cham­ bers was deafening.

So Thomas retreated. Two o f the first decorating touches on the bare walls o f his office were telling. In the entrance foyer he posted an admonition to respect the confidentiality o f all Supreme Court busi­ ness. O n the door to his private office, he put the words " D o N o t Disturb." He used to enjoy taking lunchtime walks around the D . C . Circuit courthouse, but his notoriety made anonymity impossible. H e even stopped driving his beloved black Corvette to work. ( " R E Z I P S A , " the vanity license plate said, a play on the Latin legal phrase that means "The thing speaks for itself.") T h e car was too recogniza­ ble. "I used to love to walk out with my clerks and walk down to the Old Post Office and have barbecue or something like that or walk over to Union Station and have cheese fries or something," Thomas told the Docket Sheet, the Supreme Court's internal newsletter, in the only interview he gave after People. "My total loss o f anonymity has been the big change in that regard." In one respect, it was fortunate that Thomas almost never left the Supreme Court building by foot in his first year, because it meant that he probably never saw the boldly let­ tered graffito on a Capitol H i l l sidewalk across the street. It said, "Anita Told the Truth."

Unlike most o f his fellow justices, Thomas made an effort to learn the names o f the people who worked at the Court—the cafeteria workers, clerks, and cops. Despite his friendly demeanor, the Court employees saw how devastated he was by the confirmation battle. Years later, Thomas recalled that one o f the Supreme Court police of­ ficers who noticed how "battered and beaten" he looked took to wel­ coming him each day with the words "Don't let them take your joy."

J u s t weeks after joining the Court, Thomas had a chance to strike back at the "them" who had tormented him in the hearings. T h e question before him: Should Roe v. Wade be overruled?

Q U E S T I O N S P R E S E N T E D

There were two kinds o f cases before the Supreme Court. There were abortion cases—and there were all the others. Abortion was (and remains) the central legal issue before the Court. It denned the judicial philosophies o f the justices. It dom­ inated the nomination and confirmation process. I t nearly delineated the difference between the national Democratic and Republican par­ ties. And in 1 9 9 2 , the issue—and the Court—appeared to be at a turning point.

For the first time since Roe v. Wade was decided nineteen years ear­ lier, eight o f the nine justices on the Court had been appointed by Republicans, whose party was publicly and officially committed to ending legalized abortion. (And the single Democratic appointee, Byron W h i t e , who was named by J o h n F. Kennedy in 1 9 6 2 , had dis­ sented in Roe and voted against abortion rights in every subsequent case.) I f there was ever a perfect opportunity to overturn Roe once and for all, the spring o f 1 9 9 2 was it.

U n l i k e the other branches o f government, the courts, even the jus­ tices o f the Supreme Court, cannot simply decide to take action on an issue o f importance to them. They must wait until a case happens to move through the lower courts in a way that raises the issue. Savvy lawyers can shape the process. Indeed, as the Court became more con­ servative in the Burger years, certain liberal civil rights groups would sometimes actually put up money to pay off plaintiffs in controversial cases, so that the justices would not decide the case and create a "bad" precedent. B u t sometimes the interests aligned so that a major issue landed in the Court at the most dramatic possible time. That was what happened right after Thomas joined the Court.

T H E N I N E 37

In the years since Roe, states with antiabortion majorities had tried in different ways to pass restrictive laws that the Supreme Court would approve. T h e laws tracked the evolution o f the Court. As the Court became more conservative, the states became bolder in tighten­ ing the restrictions. Anticipating the Court's move to the right on abortion—and hoping to push it further in that direction— Pennsylvania had passed one o f the nation's most restrictive laws in 1 9 8 9 - T h e law forced women who wanted an abortion to wait twenty- four hours after contacting a clinic before getting one, and mandated that the women be given a lecture about fetal development and alter­ natives to abortion. Minors seeking abortions would have to get per­ mission from a parent (or a judge), and married women would have to inform their husbands o f their plans.

On October 2 1 , 1 9 9 1 — s i x days after Thomas was confirmed and two days before he was sworn i n — a three-judge panel o f the United States Court o f Appeals for the Third Circuit upheld the Pennsylvania law almost in its entirety. T h e majority in Planned Parenthood of Southeastern Pennsylvania v. Gov. Robert P. Casey rejected only one part o f the law, the provision mandating that married women first inform their husbands i f they sought an abortion. "Most married women will discuss the abortion decision with their husbands," the majority said. B u t some married women would not, because "many husbands are ca­ pable o f violence in circumstances o f this kind and will use physical force and the threat thereof to keep the wife from access to the c l i n i c . " T h e third judge on the Third Circuit panel disagreed, arguing that he would have upheld the spousal notification requirement along with the rest o f the law.

That third judge, Samuel A. Alito J r . , had just been appointed to the bench a year earlier by President George H . W. Bush, and this was his first major opinion. He was only forty-one years old, a former fed­ eral prosecutor and J u s t i c e Department official who could expect se­ rious scrutiny as a possible Supreme Court candidate down the line. Like all such judges, Alito knew that he would be in great measure defined by how he ruled on abortion. So the case was o f no small con­ sequence, and unlike the other judges on his panel, Alito didn't split the difference. H e supported all o f Pennsylvania's restrictions— including the requirement that women notify their spouses in ad­ vance before obtaining an abortion.

Spousal notification would affect very few women in Pennsylvania, Alito said. T h e evidence in the case showed that between 7 0 and 8 0

38 Jeffrey Toobin

percent o f women who sought abortions were unmarried, he noted, and 9 5 percent o f married women who sought abortions did tell their husbands. "Thus, it is immediately apparent," Alito wrote, that the law "cannot affect more than about 5 percent o f married women seek­ ing abortions or an even smaller percentage o f all women desiring abortions." In light o f these small numbers, there was no "broad prac­ tical impact needed to establish an 'undue burden.' "

In one important respect, the three Third Circuit judges agreed. B y 1 9 9 2 , Roe v. Wade was still nominally the leading Supreme Court case on abortion rights, but the Third Circuit scarcely paid any attention to Harry Blackmun's venerable landmark. Rather, its judges con­ cluded that the views o f a different justice represented the true center o f the Court; their opinions represented their best efforts at speculat­ ing how this justice—Sandra O'Connor—would view the case. W h e n it came to abortion rights, even at the start o f the 1 9 9 0 s , the Rehnquist Court was in fact the O'Connor Court.

After blazing through Stanford Law School and graduating in 1 9 5 2 , O'Connor did not receive a single job offer as a lawyer. (The major Los Angeles law firm o f Gibson, Dunn & Crutcher said she could come to work as a legal secretary.) B u t O'Connor ignored the slights, as be­ came her custom, and concentrated instead on building a life with her new husband, J o h n . H e graduated from Stanford Law a year after she did, and following his army stint in Germany, they settled in the booming but still very small city o f Phoenix.

T h e next years passed in a blur, which was the pace o f life O'Connor preferred. She had three boys in six years. She worked first at a small law firm, then as an assistant attorney general. She volun­ teered for local hospitals and the Salvation Army and worked her way up the hierarchy at the J u n i o r League. She and J o h n , who became a successful lawyer himself, hosted lively barbecues for dozens of people (often including B i l l and Nan Rehnquist) at their adobe home in Paradise Valley. O n c e , according to her biographer J o a n Biskupic, the O'Connors staged a campy dedication party for a bridge they had built over their backyard pool. Men wore top hats and tails, with white shorts and sneakers, and women sported gowns and pith hel­ mets. Boiled beef, potatoes, and English muffins were served, and bagpipes provided accompaniment.

T H E N I N E 39

Much later, in her chambers at the Supreme Court, O'Connor would demand that her law clerks replicate her own headlong style o f living. Marriage, children, career, exercise, culture, politics, volunteer work—she had done it all and everyone else should, too. Female clerks were required to join in her three-mornings-a-week exercise class at the Court gym. (Late in her tenure, she added salsa dancing to the workouts.) Male clerks planning weddings were ordered to get in shape. (One stuffed an ice cream cone in his desk drawer so she wouldn't see it.) Clerks dozing from exhaustion would be instructed to join her at special private showings at the National Gallery. An an­ nual clerks' picnic by the cherry blossoms in the Tidal Basin would (and often did) take place even in the rain. For O'Connor, even holi­ days were occasions for exertion. For Halloween, she demanded that her clerks decorate a pumpkin with a newsy theme. After 9 / 1 1 , there was "Osama B i n Pumpkin"; a year later, a Martha Stewart pump­ kin—wearing prison garb.

T h e formative political event o f O'Connor's years in Phoenix took place in 1 9 6 9 , when her local state senator moved to Washington to take a job in the Nixon administration. Though she had been an as­ sistant attorney general for only four years—and women politicians were still a novelty—she persuaded the governor, J a c k W i l l i a m s , to appoint her to fill the seat. O'Connor took to legislative work i m m e ­ diately, building coalitions, making deals, pushing bills through the process. T h e job suited her personality. She got along with people and liked to get things done. O'Connor came o f age when Barry Goldwater dominated the Arizona Republican Party—and she sup­ ported him for president in 1 9 6 4 — b u t her work in politics never had a particularly ideological edge. Fittingly, one o f the first bills she sponsored was to repeal a 1 9 1 3 law that prohibited women from working more than eight hours a day. To O'Connor, this was paternal­ ism, not protection.

O'Connor took the same pragmatic approach to the subject o f abor­ tion, displaying the kind o f artful political tacking on the issue that she would show on the Court. She had taken office when a drive was on to change abortion laws in the state legislatures, and Arizona was no exception. At the time she became a senator, Arizona law prohib­ ited abortions except to save a woman's life, and the following year, 1 9 7 0 , a liberalization bill came before a committee where O'Connor served. On April 2 9 , 1 9 7 0 , according to local newspapers, she voted to end criminal prohibitions on abortions in Arizona. T h e measure

40 Jeffrey Toobin

passed the committee but never came up for a vote o f the full senate. W h i l e she supported that prochoice measure, she also backed a re­ striction on abortion rights, in the form o f a law that would have al­ lowed only licensed physicians to perform abortions. Shortly after O'Connor became majority leader o f the senate, Roe v. Wade made these initial rounds o f legislative approaches moot; abortion would be legal regardless o f what the state legislatures did. In Arizona at least, since the right to choose abortion was now protected by the U.S. Constitution, the issue faded from the state's immediate political agenda.

In a curious postscript, O'Connor's record on abortion rights was a focus o f the vetting process when Reagan was considering naming her to the Court in 1 9 8 1 . O'Connor told the vetter, a young Justice Department aide named Kenneth Starr, that she had never cast a vote on the abortion liberalization measure. Starr took her word for it, and no one else thought to check the Phoenix papers for a record o f her vote. (The scrutiny o f Supreme Court nominees became much closer in later years.) T h e omission allowed O'Connor to assure the Reagan team that she "personally" opposed abortion at the same time as she left a studied ambiguity about how she felt about the legal status o f abortion rights. In truth, it seemed, O'Connor never gave abortion rights a great deal o f attention as a legislator. To the extent she thought about abortion, she tried to steer a middle course between ex­ tremes on the issue—an approach that would remain her touchstone in the infinitely higher-stakes setting o f the Supreme Court.

As the lawyers in the Casey case turned their attention from the Third Circuit to the Supreme Court, the counsel for the plaintiffs had poli­ tics as much as law on her mind. Like all other Supreme Court prac­ titioners, Kathryn K o l b e r t , the A C L U attorney who had shepherded the litigation through the T h i r d Circuit, knew O'Connor's penchant for the middle ground, but the lawyer wanted to take that option away. Kolbert thought it was time to challenge the Supreme Court— and the American electorate. So she devised one o f the most audacious litigation tactics in Supreme Court history.

B y the time the T h i r d Circuit decided Casey, Kolbert and her col­ leagues thought that the protections o f Roe v. Wade had been whittled away for so long that it was better for their cause to have the prece-

T H E N I N E 41

dent reversed once and for all. Kolbert wanted the Supreme Court to decide Casey—and presumably overturn Roe—before the 1 9 9 2 elec­ tion. That way, there would be no doubt about the stakes for future Supreme Court appointments.

Kolbert had to move fast. After the decision by the three-judge panel o f the Third Circuit on October 2 1 , 1 9 9 1 , the A C L U could have petitioned all o f the judges on that court to rehear the case en banc. That would have taken months. Alternatively, the Supreme Court rules gave her side ninety days, until mid-January 1 9 9 2 , to file a petition for a writ o f certiorari. A petition submitted at that time probably would not have been acted upon until late spring, so the case would not have been argued until the fall o f 1 9 9 2 and the decision handed down in 1 9 9 3 , too late. To place the fate o f Roe before the vot­ ers in time for the next election, Kolbert had to figure out a way to have the case argued and decided by the end o f the 1 9 9 1 t e r m — t h a t is, by J u n e 1 9 9 2 .

It took Kolbert just three weeks, until November 7, to file her cert petition. According to the Supreme Court rules, the party seeking re­ view in the Court begins its brief with a section called "Questions Presented." T h e art in writing these questions is to frame the issue in a way that will make at least four justices inclined to take the case. B u t Kolbert was writing for a broader audience than the Court itself, so she crafted the single question in the most provocative way she could: "Has the Supreme Court overruled Roe v. Wade, holding that a woman's right to choose abortion is a fundamental right protected by the United States Constitution?" It didn't take a law degree to under­ stand that on the eve o f the 1 9 9 2 election, the future o f Roe was now squarely before the Court.

Kolbert's strategy o f forcing the Court to rule before the election was so transparent that it offended C h i e f J u s t i c e Rehnquist. H e didn't like the idea o f the Court's being used as a pawn in a political debate, and he didn't care for litigants trying to game the Court's schedule, either. So, the liberals on the Court believed, Rehnquist struck back. Using the powers o f the c h i e f justice, he simply kept Planned Parenthood v. Casey off the list o f cert petitions that the justices would consider in their weekly conference. Rehnquist saw that the case was "relisted" and thus unresolved. Rehnquist was running out the clock. Harry Blackmun, whose entire tenure on the Court was coming down to a defense o f his opinion in Roe, was furious as were his law clerks. In an unusual joint memorandum, they wrote, " W e feel strongly that

42 Jeffrey Toobin

the case should be heard this spring. . . . I f you believe that there are enough votes on the Court now to overrule R o e , it would be better to do it this year before the election and give women the opportunity to vote their outrage."

B u t how to do it? How could Blackmun and the prochoice justices force Casey onto the Court's calendar? J o h n Paul Stevens figured out the answer. Stevens's reserved manner and penchant for writing solo dissents and concurrences sometimes gave the impression that his iconoclasm equaled a lack o f influence. B u t his raw intelligence and knowledge o f the Court's rules—along with his willingness to stroke the bigger egos o f his colleagues—gave him a crucial advantage. To break the logjam on Casey, Stevens threatened to write a dissenting opinion on Rehnquist's decision to relist the case. (Blackmun said he would join Stevens in the public protest.) Relisting was usually a purely procedural matter utterly unfamiliar to the general public. As far as anyone could tell, no justice had ever written an opinion dis­ senting from a relisting. T h a t was the point. Stevens knew that to write one now—and to accuse Rehnquist o f stalling because o f abor­ tion politics in a presidential election—would create a sensation. Rehnquist, ever mindful o f protecting the Court's reputation as well as his own, backed down. H e agreed to put the case on the calendar, and on January 2 1 , 1 9 9 2 , the Court announced that it would hear the Casey appeal on April 2 2 — t h e final day o f argument for the term and the last chance to have the case decided by Election Day.

A t the conference where the justices agreed to take Casey, David Souter pointed out that there was still one more matter to settle. The Court often adopted the "Questions Presented" in the brief o f the ap­ pealing party, but Souter didn't like the provocative one that Kolbert had submitted. In a m e m o to his colleagues, Souter said, "I suggested that the question be rephrased." Souter did not want to acknowledge that the only choice in Casey was to make an up-or-down judgment on Roe. H e wanted the flexibility to rule on the specifics o f the Pennsylvania statute, without necessarily passing on the ultimate is­ sue o f Roe v. Wade. In his m e m o , Souter proposed "that a question be added specifically addressing the issue o f precedent: W h a t weight is due to considerations o f stare decisis in evaluating the constitutional right to abortion?" Stare decisis, which means "to stand by that which is decided," is the Latin term for the rule o f precedent. Souter's col­ leagues ultimately decided not to use his question, preferring instead to list each provision o f the Pennsylvania law and ask whether each

T H E N I N E 43

was constitutional. B u t Souter's question still turned out to be the most important one in the case.

Few justices had rockier debuts than David Souter. H e was sworn in on October 8, 1 9 9 0 , a week after the Court's term started, and he never managed to catch up with the work his first year. B y the spring of 1 9 9 1 , months had passed without an opinion from him. Finally, he delivered six opinions in the final month, but overall his performance had been embarrassing. A t least, in that first term, the Republicans who supported Souter had reason to be pleased, for his record was de­ cidedly conservative. H e had joined Rehnquist and Scalia in most o f the big cases that year, including one that touched on abortion. In Rust v. Sullivan, he cast the key vote in a 5 - 4 decision that upheld the so-called abortion gag rule, which forbade doctors who received fed­ eral funds from even mentioning abortion to their patients.

At first, Souter's eccentricities drew more notice around the Court than his jurisprudence. Fifty-two years old and a lifelong bachelor, he had the habits o f a gentleman from another century. During the day, he would leave the lights off in his office and maneuver his chair around the room, reading briefs by the sun. H e ate the same thing for lunch every day: an entire apple, including the core and seeds, with a cup o f yogurt. W h e n the justices sat together in their dining room, the two items would be delivered to Souter on the same fine china that served his colleagues; Souter was familiar with Coca-Cola, but he had never heard o f a beverage that several o f the other justices fa­ vored—Diet Coke. Souter did all his writing by fountain pen. Perhaps the best-known fact about the new justice was that when Warren Rudman, the New Hampshire senator who was Souter's friend and patron, gave Souter his first television set, he apparently never plugged it in. B y the end o f Souter's first term, there was some sentiment around the Court that he was overwhelmed by his new job. Souter almost said as much in his customary first interview with the Court's in-house publication, the Docket Sheet. "I really see myself less as working than as trying to keep from being inundated by the flow o f things to be done," he said. "Somebody used the phrase that com­ ing here is like walking through a tidal wave, and it is."

W h e n the term ended in J u n e 1 9 9 1 , Souter did not so much leave Washington as flee. H e returned to the converted farmhouse in

44 Jeffrey Toobin

Weare, N e w Hampshire, that had been his grandparents' home and where he had grown up. (Contrary to rumor, Souter did not live with his mother; she had moved elsewhere.) T h e swirl o f events leading to his appointment had deprived him o f the time to think about the magnitude o f the task before him. In a letter declining an invitation from Blackmun to join him on his annual summer trip to Aspen, Souter wrote, "I have wanted as much as possible to be alone to come to terms in my own heart with what has been happening to me. . . . I have also felt the need to engage in some reading and thinking about matters that will be coming before the Court." H e wanted his sum­ mers, he wrote later, "wholly free for . . . self-education. I need some period o f the year when I can make a close approach to solitude."

W h e n Souter returned the following fall for his second term—the year o f Casey—it became clear both that he had been underestimated in Washington and that he brought a distinctive judicial philosophy to the bench. For most o f the twentieth century, the political left and right had their clear judicial analogues on the Supreme Court. In rough terms, W i l l i a m Brennan and his allies used the Constitution as a vehicle for liberal change—to build a society with greater freedom and equality. O n the other side, Rehnquist and Scalia generally put forth the view that courts should defer to political majorities and leg­ islators and interpret the Constitution in line with the original intent o f the framers. There was, however, a third tradition in American law, which was less familiar to the public because, unlike the others, it did not neatly reflect the division between the Democratic and Repub­ lican parties. B u t it was to this third tradition that David Souter belonged.

A t his confirmation hearings in 1 9 9 0 , Souter made his affiliation plain. A t the time, Souter was widely regarded as a "stealth" candi­ date because even though he had been attorney general o f New Hampshire and a justice o f the state supreme court, he had not taken public stands on the most controversial judicial issues of the day, like abortion. Prochoice advocacy groups assumed that as a justice Souter would simply do the bidding o f the contemporary Republican Party. As the National Organization for W o m e n said in a leaflet distributed during his hearings, STOP SOUTER OR W O M E N WILL DIE.

In those hearings, Souter did not so much take sides in the great legal debate o f the day as puzzle the partisans on both sides. T h e hear­ ings revealed that Souter had given deep thought to the Constitu­ tion and embraced a philosophy most closely associated with J o h n

T H E N I N E 45

Marshall Harlan I I , who served on the Supreme Court from 1 9 5 5 to 1 9 7 1 . Harlan, whose grandfather and namesake served on the Court from 1 8 7 7 to 1 9 1 1 , was hardly a radical liberal; indeed, he dissented from many o f the Warren Court's most celebrated rulings. B u t neither was Harlan exactly a conservative, at least in modern terms. H e be­ lieved that law existed to preserve the stability o f society and that ad­ herence to precedent best guaranteed a limited and predictable role for the judiciary. Above all, he believed in the rule o f stare decisis. Like Harlan, Souter put his faith in the common law, the accumulated wisdom o f judges and courts going back to the Middle Ages.

Also like Harlan, Souter believed that the Constitution expressed a libertarian ideal—that freedom from the restrictions o f government counted as much as, or more than, the right o f legislators to pass laws limiting individual freedom. And the people's rights were not limited by the precise language o f the Constitution, either. One o f the strongest arguments against so-called unenumerated rights in the Constitution is that a written document should be limited in mean­ ing to its precise terms.

In a famous dissenting opinion from 1 9 6 1 , Harlan rejected that view, stating that "the full scope o f the liberty guaranteed by the D u e Process Clause cannot be found in or limited by the precise terms o f the specific guarantees elsewhere provided in the Constitution. T h i s 'liberty' is not a series o f isolated points pricked out in terms o f the taking o f property; the freedom o f speech, press, and religion, . . . and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless re­ straints." Harlan's view on unenumerated rights had become a crucial intellectual building block in the Court's future decisions recognizing the right to privacy and, later, the right to abortion.

For David Souter, in 1 9 9 2 , the question then was whether restric­ tions on the right to choose abortion were the kind o f "arbitrary im­ position" prohibited by the Constitution. T h e way that Souter addressed that kind o f question was to look at the common law and precedent. Thus, his proposed question, the key issue in the case: "What weight is due to considerations o f stare decisis in evaluating the constitutional right to abortion?" For Souter, the answer wouldn't just resolve Casey but define his judicial worldview.

46 Jeffrey Toobin

Even early in Rehnquist's tenure as chief justice, the Court's oral ar­ guments were transformed from the Burger years. Throughout the eighties, it was a quiet bench. Brennan, Marshall, and Blackmun asked hardly any questions, and Burger, W h i t e , and Powell only a few more. T h e change began when Scalia joined the Court in 1 9 8 6 . His pugnacious wit and open partisanship raised the energy level in the courtroom, and lawyers could soon expect a hot bench on even the most arcane issues. One way O'Connor prepared for oral argument was to plan questions with her clerks, and she began a tradition of asking the first question o f most lawyers. Rehnquist and Kennedy liked to talk, too, and the overall level o f volubility on the Court made what happened on April 2 2 , 1 9 9 2 , so extraordinary.

"We'll hear argument next in N o . 9 1 - 7 4 4 , Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey" Rehnquist said in his fa­ miliar long-voweled midwestern drawl. "Ms. K o l b e r t ? "

"Mr. C h i e f J u s t i c e , and may it please the Court. W h e t h e r our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case," Kolbert began. "Since this Court's decision in Roe v. Wade, a generation o f American women have come o f age secure in the knowledge that the Constitution provides the highest level o f protec­ tion for their child-bearing decisions."

T h a t was as long as the Court allowed most advocates to speak without jumping in with questions. B u t there was only silence from the justices, so Kolbert kept going. "This landmark decision, which necessarily and logically flows from a century o f this Court's jurispru­ dence, not only protects rights o f bodily integrity and autonomy but has enabled millions o f women to participate fully and equally in so­ ciety. T h e genius o f Roe and the Constitution is that it fully protects rights o f fundamental importance. Government may not chip away at fundamental rights, nor make them selectively available only to the most privileged women."

More silence from the bench. A murmur began in the audience, a very knowledgeable group, especially in a big case like this one. W h y weren't they asking any questions? W h y were they paralyzed?

Three minutes, four minutes, still no questions from the justices, and no retreat from Kolbert. H e r strategy was the same as the one in her brief—go for broke, all or nothing, overturn the Pennsylvania regulations in their entirety or overturn Roe v. Wade. "Our nation's history and tradition also respects the autonomy o f individuals to

T H E N I N E 47

make life choices consistent with their own moral and conscientious beliefs," Kolbert said. "Our Constitution has long recognized an in­ dividual's right to make private and intimate decisions about mar­ riage and family life, the upbringing o f children, the ability to use contraception. T h e decision to terminate a pregnancy or to carry it to term is no different in kind." Finally, after eight minutes, O'Connor spoke up, in her characteristic singsong earnestness, reminiscent o f a nursery school teacher.

"Ms. Kolbert, you're arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe [v.] Wade in all its aspects," she said. "Nevertheless, we granted certiorari on some spe­ cific questions in this case. D o you plan to address any o f those in your argument?"

Kolbert replied, in so many words, no. She was not going to con­ cede that the individual restrictions could be separated from the larger question o f preserving Roe. Kennedy tried, t o o — " Y o u have a number o f specific provisions here that I think you should address"— but Kolbert wouldn't yield. To her, ruling on Casey meant ruling on Roe.

At the conference o f the justices that week, the result was mud­ dled. Seven justices—Rehnquist, W h i t e , O'Connor, Scalia, Kennedy, Souter, and Thomas—wanted to uphold most o f Pennsylvania's re­ strictions on abortion. Only Stevens and Blackmun wanted to strike them down. B u t there were tensions within the majority. Rehnquist, W h i t e , and Scalia were on record wanting to overrule Roe, and Thomas (his confirmation uncertainty notwithstanding) wanted to join them. B u t there was not yet a fifth vote to overturn Roe outright. Neither O'Connor, Kennedy, nor Souter was ready to go that far. So at the end o f the conference, Rehnquist assigned Casey to himself, in­ tending to write an opinion that allowed states almost a free hand in regulating abortion. As a practical matter, Roe would be overturned, but not in so many words.

Then, early the following week, Souter decided to pay a visit to O'Connor.

^ 4

Outsiders tend to be surprised by how rarely Supreme Court justices speak to each other, one on one. Under Rehnquist, the nine spent a good deal o f time together as a group. Argument days, most Mondays and Wednesdays when they were in session, were preceded by the traditional thirty-six handshakes, each justice with every other, and they had lunch together most o f these days as well. There were also conference discussions every Friday dur­ ing these weeks. After the conference, however, the justices tended to communicate with one another through memos, which were often drafted by their law clerks. (After e-mail became ubiquitous, the memos also circulated electronically, but always with paper copies as well; among the justices, only Thomas and Breyer, and eventually Stevens, were fully comfortable communicating by e-mail.)

There was, in short, very little o f the informal contact o f normal of­ fice life, just a few phone calls and even fewer visits to one another's chambers. Some justices had substantive discussions with individual colleagues as rarely as once or twice a year. So Souter's walk down the hall to visit O'Connor had more significance than it would have in an­ other law office. It was meaningful, too, that Souter went to see O'Connor, not the other way around. All o f the justices, not just Souter, went to O'Connor. T h e way to win a majority in the Rehnquist Court was to earn O'Connor's support, so her colleagues invariably came to her as supplicants.

In his second year on the Court, Souter sought nothing less than to undermine the central tenet o f the conservative revolution which his appointment was supposed to advance. Souter was appointed to over­ turn Roe v. Wade; instead, he was going to try to save it.

C O L L I S I O N C O U R S E

T H E N I N E 49

In his gentle manner, Souter told O'Connor he was uncomfortable with the chief's approach in Casey. Couldn't they find a way to pre­ serve the core o f Roe while upholding most o f the specific provisions o f the Pennsylvania law at issue? Indeed, Souter said, O'Connor's own opinions pointed the way.

O'Connor's views on the right to abortion grew out o f the original decision in Roe. There, in 1 9 7 3 , Blackmun had written that the "fun­ damental" right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," but the right to abortion was not absolute. W h e r e a state could show that there was a "compelling state interest" in limiting the right to choose abortion, the Court would approve the restriction. To discern the state's inter­ est in regulating abortion, Blackmun devised a framework that relied on pregnancy's trimester calendar. T h e justice canvassed the medical literature and determined that in the first trimester the prospect o f carrying a pregnancy through to childbirth was clearly more risky for a woman than an early-term abortion. Thus, he wrote, the state could not restrict abortion during this period, and the decision "must be left to the medical judgment o f the pregnant woman's attending physi­ cian." (Much o f the opinion in Roe was expressed in terms o f the rights o f the physician, rather than those o f the woman; as a former general counsel for the Mayo Clinic, in Minnesota, Blackmun had a high re­ gard for the medical profession.)

B u t as the pregnancy continued, Blackmun wrote, laws could re­ flect the government s interest in protecting the fetus, not just the woman's rights. After the first trimester, the state could regulate abortions, but only in "ways that are reasonably related to maternal health." Finally, "subsequent to viability," the state could restrict or even ban abortion, except when it is necessary "for the preservation o f the life or health o f the mother." In essence, Roe introduced a sliding scale on which a woman's right to abortion was greatest early in her pregnancy and could be limited as the fetus grew. Even so, B l a c k m u n insisted, any law restricting abortion, even late in a pregnancy, would have to ensure protection o f not only a woman's life but also her health. Blackmun elaborated on this point in his lesser known but still important opinion in Doe v. Bolton, a challenge to Georgia's abor­ tion law, which was decided by the Court on the same day as Roe. Again expressing the right to abortion as a doctor's choice, B l a c k m u n wrote that the decision to perform the procedure "may be exercised in the light o f all factors—physical, emotional, psychological, familial,

50 Jeffrey Toobin

and the woman's age—relevant to the well-being o f the patient." In other words, when a woman's health was at stake, at whatever stage o f the pregnancy, she and her doctor should be able to choose an abor­ tion.

O'Connor took an independent tack on abortion from the begin­ ning o f her tenure on the Court. In her first important case on the sub­ ject, in 1 9 8 3 , the majority struck down a set o f rules in Akron, Ohio, that were clearly designed to discourage women from having abor­ tions, including a regulation requiring that all abortions occurring af­ ter the first trimester take place in hospitals and another calling for a twenty-four-hour waiting period for women seeking abortions. O'Connor wrote a dissenting opinion, in which she defended the reg­ ulations and attacked part o f Blackmun's logic in Roe v. Wade. Improvements in medical technology, O'Connor declared, would ren­ der the trimester analysis obsolete. Increasing numbers o f premature infants would be able to survive birth at ever-earlier stages o f preg­ nancy, she argued, and women would be able to have safer abortions later in pregnancy. "The Roe framework, then, is clearly on a collision course with itself," she continued, in what became her most famous sentence as a justice. "As the medical risks o f various abortion proce­ dures decrease, the point at which the State may regulate for reasons o f maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate exis­ tence o f the fetus, the point o f viability is moved further back toward conception."

O'Connor proposed a new legal framework to replace Roe. Adopting a phrase contained in a brief filed in the case by President Reagan's J u s t i c e Department, she wrote that abortion regulations should be upheld unless they created an "undue burden" on a woman seeking to have the procedure. O'Connor didn't define exactly what she meant by an "undue burden," but she argued that, according to such a standard, the Akron restrictions should be upheld. In fact, when it came to medical science, Blackmun turned out to be more prescient than O'Connor. She was wrong to conclude that the point of viability would shift in any meaningful way. In Roe, Blackmun had written, "Viability is usually placed at about seven months ( 2 8 weeks) but may occur earlier, even at 2 4 weeks." Early in the twenty-first century, more than three decades after Roe, it is still rare for a fetus younger than twenty-three or twenty-four weeks to survive. (The term o f a normal pregnancy is thirty-eight to forty weeks.)

T H E N I N E 51

As usual when it came to controversial issues, O'Connor's prefer­ ence was for the matter to be settled in the political arena rather than in the courts. As a former state legislator herself, she always had a pre­ disposition to favor the judgments o f these officials. Quoting an opin­ ion by J u s t i c e Oliver Wendell Holmes J r . from 1 9 0 4 , O'Connor wrote, "In determining whether the State imposes an 'undue burden,' we must keep in mind that, when we are concerned with extremely sensitive issues, such as the one involved here, 'the appropriate forum for their resolution in a democracy is the legislature.' "

B u t through her first decade on the Court, even as O'Connor criti­ cized Roe, she never called for its outright rejection. In 1 9 8 9 , the Court came close to overturning Roe when it approved a Missouri law prohibiting most abortions in public hospitals. In Webster v. Reproductive Health Services, Rehnquist, joined by W h i t e , Scalia, and (for the most part) Kennedy, all but called for the end o f Roe. B u t O'Connor, characteristically, held back, writing, " W h e n the constitu­ tional invalidity o f a State's abortion statute actually turns upon the constitutional validity o f Roe, there will be time enough to reexamine Roe, and to do so carefully."

T h i s , then, was the state o f O'Connor's thinking when Souter paid her his visit. Opposed to Blackmun's reasoning in Roe. Supportive o f efforts by state legislators to l i m i t abortion. Cautious—as always— about getting out o f step with public opinion. B u t "time enough" had passed. She had to take a stand on Roe.

Even though the conference in Casey resulted in Rehnquist's assign­ ing himself the majority opinion, that didn't end the matter as far as Souter was concerned. H e hated to see the Court drawn so directly into a contested political issue. H e believed, perhaps naively, that there was an island o f "law" that could be insulated from the daily rush of events. It had been almost twenty years since Roe, and while the Court had allowed states to regulate and l i m i t abortion during that time, there had been little doubt that the Constitution forbade a complete prohibition on abortion. Yet Rehnquist's position at conference, and the opinion he was writing, would clearly permit a to­ tal ban.

O'Connor agreed with Souter. She had a less mystical attachment to the idea o f precedent than Souter did, but her more political in-

52 Jeffrey Toobin

stincts led her in the same direction. T h e country had come to terms with Roe.

Something else was bothering O'Connor, too. She was appalled by the provision o f the Pennsylvania law that required married women who were seeking abortions to inform their husbands. T h e court o f appeals had struck down this provision, but Rehnquist proposed to uphold the view o f the dissenting judge from the lower court. B u t that opinion—the one by J u d g e Samuel Alito—outraged O'Connor. She saw this provision as paternalism at best and sexism at worst. O'Connor had finely tuned radar for discrimination against women (something she sometimes lacked for bias against, say, African Americans), and she couldn't abide the notion that the Court would uphold such a law.

So Souter and O'Connor were aligned on the idea that the Court should uphold what they came to call the "essence" o f Roe, and they agreed that they should try to strike down the spousal notification provision. B u t they had only four votes for these positions—their own, plus those o f Blackmun and Stevens, who were ready to reject the whole Pennsylvania law. They knew that there was only one place to go for a possible fifth vote—the chambers o f Tony Kennedy.

Souter and Kennedy could hardly have approached the job of Supreme Court justice more differently. Souter avoided attention, loathed con­ troversy, and disliked high-profile cases. Kennedy relished his public role and sought out the opinions that would make the newspapers. Seated at his keyboard typing furiously, Kennedy always labored most closely on the sections o f opinions that m i g h t be quoted in the New York Times.

I f Souter thought the proper role for a judge was as the (nearly) silent steward o f judicial tradition, Kennedy had a much more roman­ tic notion o f a robed crusader for the rule o f law. H e liked to talk about the "poetry" o f law and o f great "teaching cases," that is, opin­ ions that instructed law students on timeless principles. Kennedy had been a judge for close to his whole professional life, since Gerald Ford made him the nation's youngest member o f the court o f appeals in 1 9 7 5 , when he was thirty-nine. Through his twelve years on the N i n t h Circuit, and even in summers while he was a justice, Kennedy continued teaching at the McGeorge School o f Law in his hometown

T H E N I N E 53

o f Sacramento. He saw law as not just a collection o f cases but a sys­ tem that ought to be explainable to, and understood by, the next gen­ eration o f lawyers.

Kennedy was also a serious Catholic, o f pre-Vatican I I vintage, who went to Mass every Sunday and prayed in the old-fashioned man­ ner, hands clasped before him. Abortion repelled him. H e fully adopted his church's teachings on the subject. O n c e , before he joined the Court, he had called Roe the "Dred Scott o f our time," a reference to the infamous 1 8 5 7 ruling that sanctioned slavery and helped spark the Civil War. B u t Kennedy knew the difference between his duties as a judge and his convictions as a Catholic. As he once wrote, "The hard fact is that sometimes we must make decisions we do not like." Even though he and his church opposed abortion, that did not answer the question o f whether the Constitution protected it.

Kennedy's peculiar combination o f traits—his earnestness and his ambition, his naivete and his grandiosity, his reverence for the law and his regard for his own talents—made him receptive to Souter's appeal. Kennedy thought there was nobility in judging; saving Roe would show the world that the justices were something more than mere pois. A statesmanlike compromise suited both Kennedy's poli­ tics and his conception o f the role o f the judge.

So Kennedy signed on with Souter and O'Connor. His was the most dramatic switch o f the three, because it had been only three years since he voted with Rehnquist in Webster, an opinion that advo­ cated overruling Roe. Even more dramatically, Kennedy had clearly supported Rehnquist at the conference in Casey. N o vote is ever final on the Court until an opinion is announced, but changes from con­ ference votes are still unusual, especially when, as in Casey, it was Kennedy's vote that allowed Rehnquist to start drafting his majority opinion. Nonetheless, in early May, Souter, O'Connor, and Kennedy decided to work together secretly on Casey, each o f the justices telling only a single law clerk in their chambers that they were planning a joint opinion.

Unaware o f these machinations, the c h i e f justice continued drafting what he expected would be the majority opinion. W r i t i n g with typi­ cal dispatch, Rehnquist circulated a draft on May 2 7 , just a little more than a month after the argument. According to the chief, the

54 Jeffrey Toobin

Court would uphold all o f the provisions o f the Pennsylvania law. Rehnquist wrote, "The Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a 'fundamental right.' " I f the chief's opinion won the support o f a majority o f jus­ tices, states would be free to regulate or even ban abortion altogether. As Blackmun wrote in the margin o f the first page o f Rehnquist's draft: "Wow! Pretty extreme!"

T h e "troika," as they would later become known, agreed with Blackmun's view o f the chief's draft opinion. T h e way Rehnquist summarily dismissed Roe eliminated any chance that he might draw Souter, O'Connor, or Kennedy back into a majority with him. In their secret collaboration, Kennedy had agreed to write the opening section o f the opinion, where they announced that they would preserve Roe. Souter would write next, about the importance o f stare decisis, and O'Connor would write the final section, explaining why the spousal notification provision o f the Pennsylvania law had to be struck down. O n May 2 9 , two days after Rehnquist circulated his draft, Kennedy sent a handwritten note to Blackmun:

Dear Harry, I need to see you as soon as you have a few free minutes. I

want to tell you about some developments in Planned Parenthood v. Casey, and at least part o f what I say should come as welcome news.

I f today is not convenient, I will be here tomorrow. Please give me a call when you are free.

Yours, Tony

A t their meeting the following day, Blackmun saw how anguished Kennedy was about his role in preserving the right to choose abor­ tion. Because o f Roe, no justice had received more death threats than B l a c k m u n , and he comforted Kennedy by telling him the mail some­ times brought pleasant surprises, too. Blackmun showed his junior colleague a letter from a nun, o f all people, praising him for allowing a desperate woman to get an abortion. After Kennedy left, the always meticulous Blackmun wrote himself a simple note on a piece o f pink Supreme Court m e m o paper: "Roe sound." As Linda Greenhouse ob­ served in her book about B l a c k m u n , "The choice o f this slightly old- fashioned word was significant. To a lawyer, 'sound' conveys not just

T H E N I N E 55

Souter, O'Connor, and Kennedy circulated the result o f their secret collaboration—a draft opinion'of sixty-one pages—on J u n e 3 . Rehn­ quist took the news with equanimity. Antonin Scalia did not.

Roe represented everything Scalia most despised, and still despises, about modern jurisprudence—and the modern world. H e had denned his career as a justice by his insistent and unwavering demand that the case be overturned.

Scalia was fifty-six years old in 1 9 9 2 , a veteran o f six years on the Court, at the height o f his intellectual and physical powers. H e was squat and neckless, with a five o'clock shadow that was almost as pro­ nounced as Souter's. He dominated the Court's oral arguments with barbed questions and jokes, and his opinions were forceful, oratorical, and a pleasure to read. H e was the dominant personality on the Court, and he had the clearest, most identifiable judicial philosophy among the justices. B u t by the time o f Casey it was clear that Scalia's zest, passion, and intelligence did not translate into the most important thing one member o f a court o f nine could have—influence.

O'Connor, still in her uncertain early years as a justice when Scalia joined the Court, was the first to be alienated by him. In the Webster case, Scalia had written that her opinion declining to address Roe "cannot be taken seriously." Later, as she became more confident, O'Connor would ignore Scalia's taunts—"That's just N i n o , " she would say—but at first his contempt burned her. Scalia's breach with Kennedy was even more surprising. B o t h men were born in 1 9 3 6 , ob­ servant Catholics, contemporaries at Harvard Law School, and ap­ pointed to the Court a year apart; Kennedy bought a home in the same Virginia suburb as Scalia. For a time, the portly N e w Yorker and rangy Californian were even unlikely jogging partners. B u t Kennedy, a politically as well as temperamentally moderate person, came to be repelled by Scalia's dogmatism.

In time, Scalia would revel in his isolation and wear it almost as a badge o f honor. His judicial philosophy was so clear and consistent, and his obligation to follow it so principled, that he could not bring himself to bargain with his colleagues. "Originalists have nothing to

survival but correctness and legitimacy." Roe—the right to choose— was sound.

56 Jeffrey Toobin

trade!" he would say. " W e can't do horse-trading. Our view is what it is, and we write our dissents."

B u t originalism never caught on with anyone else on the Court, ex­ cept Thomas. J u s t i c e s like O'Connor, Souter, and Kennedy believed there was more to constitutional interpretation than just divining the intent o f the framers, including such factors as subsequent decisions o f the Court, the expectations o f the public, and the underlying val­ ues in the B i l l o f R i g h t s , not just its text. In short, these justices be­ lieved in a "living Constitution," a concept for which Scalia had nothing but contempt. "A 'living Constitution' judge," Scalia once explained, is a "happy fellow who comes home at night to his wife and says, 'The Constitution means exactly what I think it ought to mean!' "

Scalia thought Roe was the worst example o f the living Con­ stitution run amok—until he read Kennedy's section o f the joint opinion in Casey. Kennedy had a weakness for high-flown, sometimes rather meaningless rhetoric, and he was at his airy best (or worst) in Casey. "Liberty finds no refuge in a jurisprudence o f doubt," he began. In plain English, Kennedy meant that law had to be consistent and predictable, but there was in fact a noble lineage to "a jurisprudence o f doubt." Theorists like Oliver Wendell Holmes J r . and Learned Hand thought it was critical for judges to reflect doubt that their con­ clusions were correct for all time. Worse, from Scalia's perspective, was Kennedy's defense o f the right to privacy: "At the heart o f liberty is the right to define one's own concept o f existence, of meaning, of the universe, and o f the mystery o f human life." Even many support­ ers o f Roe would have trouble defining "the mystery o f human life," much less asserting that it was protected by the Constitution, but such phrases sent Scalia into a genuine rage. In the last days before Casey was announced, traditional notions o f Court etiquette were tossed aside in the heat o f the battle. Scalia visited Kennedy at home to try to talk him out o f his position; one o f Scalia's law clerks way­ laid Souter in the hallway to lobby him to change his mind. Nothing worked.

Indeed, the exclamation point to the troika's victory in Casey came after a typically astute behind-the-scenes maneuver by Stevens. Through its many drafts, the troika's opinion had become somewhat disorganized and confusing. O n J u n e 1 8 , Stevens wrote to the three authors, "You have indicated that you would welcome suggestions that will enable Harry and me to join as much o f your opinion as pos-

T H E N I N E 57

sible." So Stevens proposed an artful reorganization o f the troika's work, thereby making it possible for the two liberals to join the opin­ ion from the beginning. "In my view," Stevens went on, "an opinion that begins as an opinion o f the Court"—that is, for a majority o f jus­ tices—"and continues to speak for a Court for 2 5 pages would be far more powerful than one that starts out as a plurality opinion and shifts back and forth between a Court opinion and a plurality opin­ ion." Kennedy accepted Stevens's idea with alacrity, and the historical significance o f the opinion was immediately enhanced.

As he often did, Scalia had to content himself with writing an alter­ nately weary and angry dissent, where he would "respond to a few o f the more outrageous arguments in today's opinion, which it is beyond human nature to leave unanswered." T h e issue in the case, he wrote, is "whether the power o f a woman to abort her unborn child is a ' l i b ­ erty' . . . protected by the Constitution o f the United States. I am sure it is not. I reach that conclusion not because o f anything so exalted as my views concerning the 'concept o f existence, o f meaning, o f the uni­ verse, and o f the mystery o f human life.' Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally pro­ tected—because of two simple facts: ( 1 ) the Constitution says ab­ solutely nothing about it, and ( 2 ) the longstanding traditions o f American society have permitted it to be legally proscribed." (Clarence Thomas, who in his confirmation hearings just months earlier pro­ fessed an open mind about Roe, joined in Scalia's view that "Roe should undoubtedly be overruled.")

O n the morning o f J u n e 2 9 , the last day o f the term and the day the decision was to be announced, Kennedy was at his melodramatic best. He had invited Terry Carter, a reporter for California Lawyer magazine, to join him in his chambers before the justices took the bench. Kennedy has a coveted suite overlooking the Court's marble staircase and plaza, and he stood staring down at the demonstrators who had gathered, waiting for the judgment in Casey to be rendered. "Sometimes you don't know i f you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line," Kennedy mused, and then he asked the reporter to leave. H e needed to "brood" before Court convened.

In the end, there was no doubt about the real winner on the Court in Casey. In a little more than a decade, O'Connor had succeeded in recasting Roe v. Wade on her own terms. Moreover, she had triumphed with a position that was shared by virtually none o f her colleagues

58 Jeffrey Toobin

over that time. T h e liberals—like Brennan, Marshall, Blackmun, and Stevens—had wanted to preserve the original rule o f Roe. T h e conser­ vatives—like Rehnquist, W h i t e , Scalia, and Thomas—had wanted to do away with Roe altogether. Even O'Connor's allies in Casey, Kennedy and Souter, had embraced her position more out o f expedi­ ency to build a majority than out o f enthusiasm for her view. B u t the point remained: her view was the law.

In practical terms, O'Connor's victory meant the "trimester frame­ work" was out, but she did adopt Blackmun's recognition that the key point in pregnancy was viability. "We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy," the troika wrote. "The concept o f viability, as we noted in Roe, is the time at which there is a realistic possibility o f maintaining and nourishing a life outside the womb." T h e n , in the sentence that sealed O'Connor's triumph, they wrote, "In our view, the undue burden standard is the appropriate means of rec­ onciling the State's interest with the woman's constitutionally pro­ tected liberty." A stray observation from a separate opinion by O'Connor had become the law o f the land on the most contentious constitutional issue o f her time. "A finding o f an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect o f placing a substantial obstacle in the path o f a woman seeking an abortion o f a nonviable fetus." In practical terms, the new rule meant that states could not prohibit early-term abortions, which were by far the most common. N o t coincidentally, O'Connor's solution to the problem o f abortion closely reflected public opinion on the issue.

T h e final section o f the joint opinion, the one drafted by O'Connor alone, drew the least attention but offered the greatest clues about the future o f the Court. T h e Pennsylvania law provided that "no physi­ cian shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion." In his opinion on the Third Circuit, Alito approved this provision, but O'Connor laid into it, sounding more like a women's studies professor than a Goldwater Republican. She wrote that "common sense" suggested that "in well functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. B u t there are millions o f women in this country who are the victims o f regular physical and psychologi­ cal abuse at the hands o f their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform

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their husbands o f their decision to obtain an abortion. . . . W e must not blind ourselves to the fact that the significant number o f women who fear for their safety and the safety o f their children are likely to be deterred from procuring an abortion as surely as i f the Commonwealth had outlawed abortion in all cases."

To O'Connor, in this case and henceforth, the crucial issue was women's autonomy and health. She said that Alito's view was "repug­ nant to our present understanding o f marriage and o f the nature o f the rights secured by the Constitution. W o m e n do not lose their consti­ tutionally protected liberty when they marry." I t was O'Connor's Court now, responsive above all to the legal philosophy and political savvy o f the former state senator from Arizona.

5

B I G HEART

Early in the third week in March o f 1 9 9 3 , Byron W h i t e called to invite Ron Klain to breakfast at the Court on Friday, the nineteenth. O n the surface, there was nothing especially un­ usual about W h i t e ' s summons. Klain had clerked for W h i t e for two years in the late 1 9 8 0 s and gone on to start a career in law and poli­ tics—as chief counsel for the Democrats on the Senate Judiciary C o m m i t t e e and then as an associate counsel for the new president, B i l l Clinton. As it happened, Klain's portfolio included Clinton's ju­ dicial appointments.

W h i t e liked talking to Klain because the justice still fancied him­ self a political insider—and a Democrat, even i f few others did. Long ago, W h i t e had been a dashing figure o f J o h n F. Kennedy's New Frontier. W h e n he was appointed to the Court in 1 9 6 2 , the Senate was giving little scrutiny to Supreme Court nominees, and his hear­ ing before the Judiciary Committee lasted fifteen minutes and con­ sisted o f eight questions. H e had never been a judge, had spent most o f his career in private law practice in Colorado, and was far better known for his exploits as a college and professional football star than for his brief tenure as Kennedy's deputy attorney general. B y far the best-known fact about W h i t e was his nickname, Whizzer, which he hated. A t the time o f his appointment, W h i t e ' s views on constitu­ tional issues were a mystery.

In three decades on the Court, W h i t e established himself as a thor­ oughgoing conservative. H e dissented from most o f the last round o f famous decisions in the Warren Court—like Miranda v. Arizona—and he became a leading voice on the right through the Burger and Rehnquist years. H e had dissented from Roe in 1 9 7 3 , wrote a

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scathingly dismissive opinion about gay rights in Bowers v. Hardwkk in 1 9 8 6 , and generally voted for the government over the individual. (On race and the scope o f federal power—the issues that most en­ gaged him in the Kennedy J u s t i c e Department—he inclined toward a more liberal view.) To Klain and others, W h i t e would insist that it was the Democratic Party that had changed, not him, and that he re­ mained true to the spirit o f J F K , but he had few takers for that view.

As the week progressed, Klain started to have suspicions about the real purpose o f the breakfast. H e checked with some other former law clerks who sometimes joined him for breakfast with W h i t e , and he learned that none o f them had been invited. S t i l l , Klain told no one from the W h i t e House about his appointment.

N o breakfast was served. A t 9 - 0 0 a.m. on March 1 9 , W h i t e ' s sec­ retary ushered Klain into chambers, and the justice was seated at his big partner's desk by the window. As usual with W h i t e , who was gruff and dour even before he turned seventy-five, there was little small talk.

W h i t e slid a sealed envelope across the table to Klain. "I'd like you to bring that back to your boss," he said.

Klain nodded. "And I have a copy for you i f you would like to see it." The letter said W h i t e was resigning. B i l l Clinton would have the

first appointment to the Court by a Democrat since Lyndon Johnson named Thurgood Marshall in 1 9 6 7 .

W h y now? Klain asked. T h e timing was a little unusual, as there was something o f a tradition o f justices resigning at the end o f the term, in J u n e . W h i t e spun an elaborate theory, which Klain had trou­ ble following, about how the Court had now accepted all its cases for the year and that made it a good time to leave. Besides, W h i t e added, "I've done this job long enough." Despite everything, W h i t e said, he remained a Democrat, and he wanted a Democrat to appoint his suc­ cessor.

Before Klain got up to leave, he asked when W h i t e planned to re­ lease the news to the press.

"Ten a.m." Klain blanched. It was already past 9 : 1 5 , and he wanted to make

sure his colleagues in the W h i t e House weren't blindsided by the news. Klain had walked to the Court from his home on Capitol H i l l , so he had no car to race across town. Should he go back and get it? Catch a cab? H e borrowed the phone in W h i t e ' s secretary's office and

62 Jeffrey Toobin

tried to reach Bernie Nussbaum, the W h i t e House counsel, or his deputy, Vince Foster. N o one was available. And he couldn't call when he was en route, because cell phones did not yet exist. His panic ris­ ing, Klain started dialing any W h i t e House number he could remem­ ber and finally passed the news to R i c k i Seidman, a colleague. He then ran into the plaza in front o f the Court and waved down a taxi.

A t 9 : 4 5 a.m., B e t t y Currie, the president's secretary, was waiting outside the Oval Office for Klain's arrival. Moments later, slightly out o f breath, Klain handed the letter to Clinton, who had already been told its gist.

"Strange," Clinton said. "He was just here. He looked good." T h e previous week, W h i t e had come to the Oval Office to swear in J a n e t Reno as attorney general.

"Okay," Clinton said, handing W h i t e ' s letter back to Klain. "Let's talk about this tomorrow."

I f Byron W h i t e wasn't a typical Democrat, neither was B i l l Clinton. T h a t was especially true when it came to the defining subject before the Supreme Court, abortion.

In 1 9 9 2 , a fiery Texas politico had opened the Democratic Convention with the words, "My name is Ann Richards. I'm pro- choice, and I vote." T h e remark was a testament to the centrality of abortion rights in Democratic Party orthodoxy. T h e issue marked per­ haps the clearest difference between the two parties, one prochoice and the other prolife. Indeed, Robert P. Casey, the governor o f Pennsylvania (and the defendant in Casey), had been denied the chance to speak at that convention in part because o f his prolife views. Clinton himself was prochoice; he could never have been nominated otherwise. B u t Clinton's view o f abortion reflected his centrist New Democrat approach. H e recognized that the subject o f abortion made many people, especially swing voters, uncomfortable, and he wanted at least to reassure them that he recognized the difficulty o f the issue. O n the campaign trail, Clinton always used the same formulation when talking about abortion, saying that he believed it should be "safe, legal—and rare."

During the campaign, when Clinton discussed the kind o f individ­ uals he would appoint to the Court, he expressed himself with char-

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acteristic political dexterity—or, seen in a different light, typical doublespeak. He would have no litmus test for his justices—but he would appoint only those who shared his prochoice views. In fact, Clinton had given the subject more thought than most other future presidents.

On Saturday afternoon, March 2 0 , 1 9 9 3 , the president began to spell out specifically what he wanted in a future justice. In the small dining room adjacent to his private study—later infamous as the site o f his trysts with Monica Lewinsky—Clinton met with Vice Pres­ ident Al Gore and W h i t e House lawyers Nussbaum, Foster, Klain, and Bruce Lindsey to discuss W h i t e ' s replacement. Almost as a lark, a couple of weeks earlier, Klain and Walter Dellinger, a D u k e law pro­ fessor temporarily on the W h i t e House staff before becoming assis­ tant attorney general, had drawn up a list o f fifty possible Supreme Court appointees. There were appeals court judges (mostly J i m m y Carter appointees to the federal bench), law professors, a few politi­ cians and private lawyers. T h e list didn't amount to much—just a row o f names and their current affiliations—but it constituted, at that moment, the full extent o f Clinton administration research on Supreme Court nominees. So Klain passed it around.

Clinton glanced at it. "Look," he said, "the Court is totally frag­ mented and it's dominated by Republican appointees." (Indeed, W h i t e was the only Democratic appointee on the Court.) "It's not enough for someone to vote the right way," he said. "We've got to get someone who will move people, who will persuade the others to join them. It's what Warren did. I want someone like that."

Clinton thought it was unhealthy that the Court was dominated by former judges, few o f whom had what he regarded as adequate real- world experience. Clinton's term for these judges was "footnote peo­ ple," who were caught up in the minutia o f law rather than its implications for people. T h e names o f several nonjudges came up, but it quickly became clear that Clinton was most interested in one o f them—Mario Cuomo, then governor o f New York.

Clinton and Cuomo had a complicated relationship. Clinton ad­ mired The New Yorker's way with words but found his indecisiveness maddening. Midway through his third term as governor, Cuomo ex­ pected a degree of deference from Clinton that the president did not always display. W h e n Clinton first called Cuomo to discuss the Supreme Court, the governor ducked his call. His secretary told B e t t y

64 Jeffrey Toobin

Currie that Cuomo was in budget negotiations with the state legisla­ ture and couldn't be disturbed.

Several members o f Clinton's staff—notably George Stephanopoulos and Gene Sperling, a top economic aide who once worked for Cuomo— loved the idea o f putting Cuomo on the Court. To them, it was just the kind o f bold gesture that could transform the Court and burnish Clinton's own record as well. W h e n Stephanopoulos spoke to the gover­ nor by phone, on March 3 0 , Cuomo wouldn't commit himself, saying, half jokingly, "I can't believe you've descended to this level o f groveling exploitation."

T h e back-and-forth lasted several days. Clinton reached Cuomo from Air Force O n e , and Cuomo said he was leaning against accept­ ing the nomination but would continue to think about it. Clinton left for a summit with Boris Yeltsin with the matter unresolved. As was customary in the Clinton W h i t e House, news o f the negotiations with Cuomo leaked to the press, embarrassing the president. B y April 7, after Clinton had returned to the United States, Stephanopoulos was badgering Andrew Cuomo, the governor's son and chief adviser, on the phone. We need an answer.

According to Stephanopoulos, Andrew said he had spoken to his father for two and a half hours that day, and the governor ulti­ mately said, " I f you want me to, I'll call Clinton and take it." Word flashed around the W h i t e House that Cuomo was the choice, to be an­ nounced the following day. Klain stopped his search and started preparing for the ceremony. B u t an hour later, Cuomo faxed Clinton a letter that said his duty to New Yorkers outweighed his desire to serve on the Supreme Court. T h e Cuomo nomination was dead—or so it appeared.

Meanwhile, even with Cuomo out o f the running, Clinton was still infatuated with the idea o f naming a politician. Important decisions are a form o f autobiography, and Clinton believed his skills with peo­ ple and his "big heart" were more important than mere legal exper­ tise. H e was determined to appoint someone in his own image. Clinton also had a politician's conviction that legislation, rather than litigation, was the best way to solve society's problems, so he didn't want to waste a great deal o f political capital pushing a controversial choice through the Senate. Clinton had built his campaign on eco­ nomic issues, and he didn't want to divert his focus in Congress. His economic program, with health care next on the agenda, was simply

T H E N I N E 65

more important to him than taking a risk on a novel choice for the Supreme Court.

Clinton turned next to George Mitchell, the Senate majority leader and a former federal district judge in Maine. H e had the same kind o f skills as Cuomo, but without the governor's need for psychodrama. True to form, Mitchell didn't agonize when Clinton offered him the job. He declined on the spot, preferring his job in the Senate and his mission o f passing Clinton's legislative program. N e x t came Richard Riley, the former governor o f South Carolina who was Clinton's secre­ tary o f education. H e , too, declined, with winning self-awareness. "I was a mediocre country lawyer," Riley told the president. "This isn't my thing."

W h a t about Bruce B a b b i t t ? Clinton asked. Like Riley, B a b b i t t had been a Democratic governor in a largely Republican state, and he now served in Clinton's cabinet, as secretary o f the interior. And as the for­ mer attorney general o f Arizona, B a b b i t t would have none o f Riley's qualms about his own fitness for the job. Let's do B a b b i t t , subject to a background check, Clinton told his team.

So Vince Foster and Klain spent an entire night in Babbitt's office in the Interior Department, a vast sprawling space that is sometimes described as the best office in Washington. They pored over tax re­ turns, especially payments to household help. (This was just weeks after Clinton's nomination o f Zoe Baird for attorney general had foundered because she had hired illegal immigrants as a family nanny and a chauffeur. Worries about a "Zoe Baird problem" became an en­ during preoccupation for public figures o f all kinds.) T h e all-night vetting session turned up no problems. T h e W h i t e House lawyers told B a b b i t t to prepare for an announcement in the Rose Garden the following day.

In the morning, though, Clinton had misgivings. First, the Washington Times, a conservative paper owned by the Reverend Sun Myung Moon, reported that B a b b i t t had gambling debts in Las Vegas casinos that were paid off by the mob. More important, Clinton had spoken to Orrin Hatch, the ranking Republican on the Judiciary Committee, and Hatch had said B a b b i t t would have a hard time get­ ting confirmed. Babbitt's strong pro-environmental views had alien­ ated a group o f Republican senators from the W e s t , and they m i g h t take revenge—either on Babbitt's nomination or on Clinton's choice for his replacement at Interior. Several western Democrats were push-

66 Jeffrey Toobin

ing New Mexico congressman B i l l Richardson for the Interior post, but Vice President Gore didn't think Richardson was "green" enough for the job.

So Clinton dropped B a b b i t t , with perhaps greater alacrity than the situation warranted. None o f the problems with a B a b b i t t nomination were likely insurmountable. (The Washington Times story turned out to be completely bogus.) B o t h B a b b i t t and a successor at Interior would likely have been confirmed eventually. In truth, Clinton always had some ambivalence about B a b b i t t , because the two men were almost too similar, down to their accomplished and ambitious wives. (Clinton had chosen Hattie B a b b i t t as the U . S . representative to the Organization o f American States.) There was a thread o f competition in the relationship between the Clintons and the Babbitts, and Clinton m i g h t have wanted to remind B a b b i t t which one o f them was the president.

More than a month had passed since White's letter, and Clinton still had no nominee, not even a front-runner. Perhaps, Clinton con­ ceded, after four politicians it was time to look at some judges. There was no question about Clinton's favorite judge. It was Richard Arnold, who sat on the federal court o f appeals in Arkansas. Arnold was a leading ornament o f the federal judiciary—a scholarly moder­ ate respected by colleagues across the political spectrum—but the Arkansas connection was troubling. Clinton had already named a number o f allies from his home state to top jobs in his administration, and an Arnold selection m i g h t have looked like cronyism, especially since Arnold's wife had served as Governor Clinton's director of cul­ tural affairs. In truth, the Arnolds and the Clintons traveled in differ­ ent social circles in Little R o c k and were not close friends, but the taint would have been hard to avoid. So Clinton passed on Arnold.

Al Gore had an idea—Gilbert S. Merritt J r . , another Carter ap­ pointee to the federal court o f appeals, i f less well known than Arnold, and a friend o f the Gore family from Tennessee. Merritt had appeal on another score. A t that moment, Clinton was struggling with the nomination o f Lani Guinier as assistant attorney general for civil rights. During her confirmation battle, it emerged that she had writ­ ten some provocative articles about voting rights that led opponents to deride her as a "quota queen." T h e appointment o f a white male Southerner like Merritt would reestablish Clinton's centrist creden­ tials. Clinton sent his vetters to work, and they came back with a pos­ sible problem relating to Merritt's tenure as U . S . attorney, back in the

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1 9 6 0 s . I t m i g h t not have been disabling by itself, but the issue al­ lowed the general lack o f enthusiasm surrounding Merritt to turn it into a disqualification.

B y this point, Clinton had taken to reading the ever-growing amount o f background material on possible nominees himself. Some o f the write-ups came from his administration, some from volunteer lawyers who were helping from the outside, and some were simply sent over the transom—from members o f Congress or the vast net­ work known as the Friends o f B i l l (and Hillary). In the meantime, the Guinier nomination blew up, with Clinton withdrawing her nomina­ tion after deciding her writings were indefensible. Clinton and his staff s handling o f the Guinier situation was so abysmal that it changed the dynamic surrounding the Supreme Court choice. Now Clinton thought naming a woman was a good idea—to mend fences after the Guinier fiasco.

Clinton plucked a name from one o f the lists—Janie Shores. W h a t about her? Clinton asked. So Klain faxed her the vetting forms that all possible appointees had to complete.

Shores was the first woman to serve on the Alabama Supreme Court, but she was utterly unknown in Washington legal circles, and no one—not Clinton or anyone on his staff—had any idea where she stood on constitutional issues or much o f anything else.

Bernie Nussbaum, the W h i t e House counsel, who was growing in­ creasingly embarrassed as the names came and went, decided to make a stand: "You are not nominating J a n i e Shores to the Supreme Court. N o one knows who she is. T h i s is insane." Clinton relented. (Inside the W h i t e House, the blameless Shores became a symbol o f the chaotic process; years later, the mere mention o f her name would re­ duce some staffers to helpless laughter.)

From the day W h i t e resigned, Ted Kennedy, the Senate veteran from Massachusetts, had been pushing Stephen Breyer. A former Kennedy staffer and professor at Harvard Law School, Breyer was chief judge o f the federal court o f appeals based in Boston. Clinton had a real reverence for Kennedy (without the edge o f competition that colored his relationship with others, like Cuomo and B a b b i t t ) . The president also respected Kennedy's political instincts, which the venerable old pol now deployed. Instead o f calling Clinton again in support o f Breyer, Kennedy prevailed upon Orrin Hatch to tell Clinton that Breyer would be a fine choice. Hatch had liked Breyer since he took a leave from Harvard to work for Kennedy on the

68 Jeffrey Toobin

Judiciary Committee in the late seventies. Clinton was impressed by Hatch's call. Let's dig in on Breyer, he told his staff.

So Foster, Klain, and Seidman flew up to Massachusetts. Un­ fortunately, just a few days earlier, Breyer had taken a bad spill from his bicycle near his home in Cambridge, and he was still a patient at Mount Auburn Hospital. (In keeping with the quasi-public nature o f the search, local reporters learned that the vetting team was in the hospital, and the W h i t e House aides had to slip out a side door to avoid them.) B u t the interview had gone well. Breyer was told to come to Washington for a talk with Clinton and then, probably, a for­ mal announcement.

Breyer had broken ribs and punctured a lung in his accident. H e wasn't allowed to fly, so the judge took a bone-jarring train ride to Washington, where Foster met him at the station and took him to the Oval Office. T h e meeting between Breyer and Clinton went badly. Normally a friendly, almost garrulous man, Breyer was short o f breath from his injury and still in pain. Afterward, Clinton told his staff Breyer seemed "heartless"—when a big heart seemed to be the presi­ dent's main criterion. Breyer's background in administrative law sug­ gested an unduly conservative bent. "I don't see enough humanity," Clinton said. "I want a judge with a soul." (Breyer, who was told none o f this, had been instructed to wait by the phone.)

T h e annual picnic for members o f Congress on the South Lawn o f the W h i t e House happened to be scheduled the night o f Breyer's in­ terview with Clinton. T h e president called a meeting for 1 1 : 0 0 p.m. to hash out a decision. T h e meeting featured all o f the flaws for which Clinton's early decision-making process was known. There were too many people (twelve staffers) talking for too long (ninety minutes) at a time o f day more suited for a college bull session. Rather than make a decision, Clinton concluded by asking everyone in the room for their votes on Breyer, which revealed a majority, but not unanimity, in his favor. "Let's get him over here tomorrow," Clinton said at the end. "I'm going to do it. W e ' l l announce it tomorrow."

B u t first thing the following morning, Foster and Klain were back in the Oval Office. Foster had been going over the Breyer family records for household help and the like, and the papers were a mess. Maybe it was fixable, but maybe it wasn't. Clinton sagged into his chair. Searching as ever for more options, he said no one had asked J a n e t Reno for her ideas. (It m i g h t seem obvious to include the attor­ ney general in deliberations about a Supreme Court nomination, but

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Clinton barely knew Reno. She was newly installed in office after a different nomination debacle, which saw Baird and then K i m b a Wood rise and fall as candidates.)

Clinton told Klain to go to the desk o f his personal assistant Nancy Hernreich, who sat with B e t t y Currie outside the Oval Office, and call Reno for her suggestions.

Reno came right to the phone, and the first thing she said was, " W h y aren't you people looking at R u t h Bader Ginsburg?"

For one o f the most accomplished lawyers and judges o f her genera­ tion, Ruth Ginsburg had an astonishing ability to disappear in a crowd. She was tiny, for one thing, barely five feet tall and a hundred pounds, with the bearing o f a little bird. B u t Ginsburg's presence was small, too. She had a shy, almost timid smile, and her eyes were hid­ den behind enormous glasses. Ginsburg's conversations were famous for long silences that sometimes left admirers (or clerkship applicants) babbling incoherently to fill the vacuum. She was sixty years old in 1 9 9 3 , older than most recent Supreme Court nominees, and the grooves in her personality were set, for better or worse.

At the time o f the Clinton presidency, Ginsburg led a cosseted life in her apartment at the Watergate, but her voice still bore traces o f her hardscrabble upbringing in Brooklyn. R u t h Bader's sister died in childhood, and she lost her mother to cancer when she was seventeen, the day before she graduated from high school. She went to Cornell, where she met her husband, Martin, and they both went on to Harvard Law School, where she was one o f nine women in a class o f more than five hundred students. There, shortly after the birth o f their daughter, Martin was struck by testicular cancer. Through his long and difficult treatment, R u t h cared simultaneously for him and their child, attended class and took notes for both o f them, typed his papers, and made law review herself. Perhaps as a consequence, in later years Ginsburg had less sympathy than some judges for com­ plaints o f overwork from her clerks.

Martin and R u t h Ginsburg settled in New York, where Martin practiced tax law and R u t h began a career teaching law, first at Rutgers and then, in 1 9 7 2 , as the first tenured woman at Columbia. She joined the American Civil Liberties Union and led its early efforts in what was then known as the women's liberation movement.

70 Jeffrey Toobin

Ginsburg was hardly a radical, and she became famous for canny strat­ egy by litigation jujitsu. Her goal, o f course, was to end the discrim­ ination that was then pervasive against women, but she needed a way to dramatize the issue in front o f judges who were invariably male.

So Ginsburg looked for cases where laws reflecting gender stereo­ types actually penalized men, not women. In one, husbands of mili­ tary officers had to prove that they were "dependent" spouses to receive certain benefits. In another, Oklahoma law allowed young women between the ages o f eighteen and twenty to buy near beer, while men o f the same age could not. T h e Supreme Court struck down the provisions in both cases, ruling that laws could not survive i f they were based solely on stereotypes and assumptions about gen­ der differences. These cases, which nominally benefited men, led to the downfall o f many more laws that penalized women. In all, Ginsburg won five out o f the six cases she argued before the justices. In 1 9 8 0 , President Carter named her to the D . C . Circuit, the second most important court in the nation.

In light o f this background—and Clinton's commitment to diver­ sity on the b e n c h — i t is surprising that Ginsburg's name came to the fore so late in the process. She had been on Klain and Dellinger's orig­ inal list o f fifty, but Ginsburg's tenure on the court o f appeals had earned her some skepticism among the more liberal members o f the administration. Ginsburg had been a moderate-to-conservative judge, especially on criminal matters, and she often found herself aligned with one-time colleagues Robert B o r k and Antonin Scalia. (Scalia and Ginsburg struck up a friendship on the appeals court, based in part on their shared love o f opera, and their families celebrated New Year's Eve together for many years.) In her academic writing, Ginsburg had even criticized Roe v. Wade, which won her even greater suspicion.

B u t Clinton was intrigued when Klain came back with Reno's en­ dorsement o f Ginsburg. "Pat Moynihan has been calling me every day saying we should nominate her," Clinton said. T h a t Moynihan, a New York Democrat, was also chairman o f the Senate Finance Committee, which had primary jurisdiction over Clinton's health care plan, made a gesture to him doubly appealing. Nussbaum added that he had been similarly lobbied by Marty Ginsburg, an old friend o f his from New York legal circles, who was as voluble as his wife was reserved. (It was no coincidence that the first two women on the Supreme Court were both married to successful lawyers who were secure in their own ca­ reers and enthusiastic backers o f their wives' ambitions.)

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Klain had one caution for Clinton—Ginsburg's position on Roe. "She's not where most o f the groups are on the issue," he said. W i t h the Guinier nomination, Clinton had felt his staff did not accurately characterize her law review articles, so the president demanded that Klain produce Ginsburg's speeches and articles about Roe. H e would read them himself. In them, Clinton found that Ginsburg did believe that the Constitution protected a woman's right to choose abortion, just under a different theory than Roe. She felt laws banning abortion were a form o f sex discrimination—a violation o f equal protection o f the laws—rather than an affront to the right to privacy, as Blackmun's opinion had held. This was good enough for Clinton. H e called Orrin Hatch and ran Ginsburg's name by him. Impressed by her moderate record on the D.C. Circuit, Hatch said she would have no problem in the Senate. Breyer was told to return to Cambridge, his chances fading.

Over the weekend, Foster, Klain, and J i m Hamilton, a private lawyer, went to the Ginsburgs' apartment at the Watergate. Charac­ teristically, for a tax lawyer and a man dedicated to smoothing his wife's way to the Court, Marty Ginsburg had their records in meticu­ lous order. (The contrast to the Breyers' messy accounts was stark.) Typically also, in the meeting at the Watergate, R u t h said almost nothing. I f Clinton didn't like Breyer, it was hard to see how he would bond with an icy character like Ginsburg. S t i l l , she would have her interview the following day, on Sunday morning. O n Saturday night, the nomination still looked like an open contest.

That was when Andrew Cuomo called George Stephanopoulos and asked i f there was a done deal.

Andrew said that his father's thinking about the seat on the Court had evolved. T h e governor believed that Clinton was about to name Breyer, and he thought that there was no chance that Clinton would name two white males in a row. So Cuomo thought his own chances were now or never.

Stephanopoulos was skeptical. "Are you sure your father will accept i f the president calls?" he asked Andrew. " W e can't go down this road again. Before the president even thinks about picking up the phone, we have to be absolutely certain that the answer will be nothing but yes."

72 Jeffrey Toobin

"Let me check," Andrew said, then put Stephanopoulos on hold. "I just asked him. T h e answer is yes."

Stephanopoulos called upstairs to Clinton, who was in the W h i t e House residence, and asked i f he could come up and see him. Clinton gave a bemused smile at Cuomo's latest peregrination. T h e idea o f a dramatic, transformative choice like Cuomo still appealed to the pres­ ident. "Mario will sing the song o f America," he told Stephanopoulos. "It'll be like watching Pavarotti at Christmastime." At a party at the British Embassy that night, Clinton told Stephanopoulos that he still wanted to see Ginsburg in the morning, but Cuomo was his first choice. Close to midnight, Andrew and Stephanopoulos spoke again, and they arranged for Cuomo to await a call around six on Sunday evening.

Clinton and Ginsburg met that morning. Earlier, Nussbaum had passed along an observation from Erwin Griswold, the venerable for­ mer dean o f Harvard Law School and solicitor general. H e said that as Thurgood Marshall had been to civil rights, R u t h Bader Ginsburg had been to women's rights. T h a t kind o f symbolism appealed to Clinton, and he felt more favorably toward her than ever. In their meeting, Ginsburg talked about the early loss o f her mother, followed by the near loss o f her husband, and her identification with the under­ dog throughout her life. W h a t Clinton saw—and his aides missed— was that beneath Ginsburg's reserved exterior was a heroic American woman. To be sure, this was a woman with a big heart.

Clinton called a final meeting o f his selection team for 5 : 0 0 p.m. T h e president was a half hour late, and almost as soon as he arrived, Stephanopoulos was called away to the phone: it was Mario Cuomo. T h e governor had changed his mind again. "I surrender so many op­ portunities i f I take the Court," he said, "I feel that I would abandon what I have to do." Stephanopoulos sheepishly returned to the Oval Office to say that he had been misled once more and Cuomo was de­ finitively out o f the running. T h e following afternoon, Clinton an­ nounced the choice o f R u t h Bader Ginsburg—arguably his seventh choice—to be the 1 0 7 t h justice o f the Supreme Court.

T h e ceremony, in the brilliant J u n e sunshine o f the Rose Garden, featured R u t h Ginsburg's tribute to her late mother, "the bravest and strongest person I have known, who was taken from me much too soon. I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons." Clinton was weeping as he walked

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Ginsburg back inside the W h i t e House, but B r i t H u m e , then o f A B C News, asked him about "a certain zigzag quality o f the decision­ making process here"—which was, i f anything, an understatement.

Clinton all but snarled a response: "I have long since given up the thought that I could disabuse some o f you from turning any substan­ tive decision into anything but a political process. How you could ask a question like that after the statement she just made is beyond me." T h e president's outburst dominated the following day's news, but Ginsburg's appointment received good reviews. As Hatch promised, there was no confirmation controversy. Her hearings lasted three quiet days in July, and Ginsburg was confirmed by a vote o f 9 6 to 3.

T h e Ginsburg nomination turned out to be an apt metaphor for the Clinton presidency as a whole. T h e process that led to her selection was chaotic, but the result was admirable—the selection o f a uni­ versally respected justice who reflected, with great precision, the moderate-to-liberal politics o f the president who chose her. Indeed, more than any recent president since Johnson, Clinton was able to use his appointments to shape the Court in line with his own views. S t i l l , even years later, he seemed embarrassed by the events leading up to Ginsburg's selection. Clinton devoted less than 2 o f the 9 5 7 pages o f his memoir to her nomination—one o f the most consequential acts o f his presidency.

As for Mario Cuomo, he gave varying explanations over the years for why he turned down the appointment in 1 9 9 3 . H e would have lost his right to speak out; he cared too much about economic issues that wouldn't come before the Court. Mostly, Cuomo said, he felt that he was the only person who could hold on to the New York governor­ ship for the Democrats. B u t , o f course, he didn't, losing to George Pataki in 1 9 9 4 . After a failed stint as a radio talk show host, Cuomo returned to law practice in New York City.

E X I L E S R E T U R N ?

O n J u l y 2 0 , 1 9 9 3 , the first day o f Ginsburg s confirmation hearing, Vince Foster killed himself. T h e deputy W h i t e House counsel, a close friend o f both Clintons from Little R o c k and a key figure in the Supreme Court selection process, never acclimated himself to the rough-and-tumble o f political Washington. There, for the first time in his life, he had faced public criticism, and the pain o f this experience exacerbated an apparently long-standing inclination toward depression. In the W h i t e House, the sadness over Foster's death to some extent overshadowed the triumph o f Gins- burg's nomination.

Clinton's entire first year was characterized by similarly vertiginous swings o f good and bad fortune. Politically and otherwise, this presi­ dent lived on the edge. In August, Congress passed Clinton's eco­ nomic plan—by a 2 1 8 - 2 1 6 vote in the House and 5 0 - 5 0 in the Senate, with Vice President Gore breaking the tie. T h e following month, Clinton hosted the historic handshake between Israeli prime minister Yitzhak R a b i n and Chairman Yasir Arafat o f the P L O on the South Lawn o f the W h i t e House. B u t the Clintons' health care plan, the ostensible reason George Mitchell turned down the nomination, went nowhere. And the controversy over the Clintons' 1 9 7 9 invest­ ment in an Arkansas land deal known as Whitewater escalated. In January 1 9 9 4 , Clinton asked for an independent counsel to examine his conduct and determine i f there were any grounds for prosecution. T h a t investigation, o f course, would mutate through the remaining seven years o f Clinton's presidency and lead to his impeachment.

T h e year 1 9 9 4 amounted to a slow-motion disaster for Clinton. Ethical controversies, none major in themselves, kept popping up—

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among them the disclosure o f Hillary Clinton's windfall profit in commodities trading, the resignation o f Associate Attorney General Webster Hubbell, and the prolonged investigation o f Foster's suicide. On February 1 1 , a former Arkansas state employee named Paula J o n e s held a raucous press conference at a conservative political event, claiming unspecified misconduct by Clinton in a Little R o c k hotel room. Health care reform, the centerpiece o f Clinton's presidency, continued its march toward irrelevancy, then death, in Congress.

In the midst o f this dismal year, on April 6 , Harry Blackmun an­ nounced his resignation. U n l i k e W h i t e ' s departure the previous year, this change did not come as a surprise. In his separate opinion in Casey, Blackmun had all but announced his plans to leave the Court. "I am 8 3 years old," he had written in J u n e 1 9 9 2 . "I cannot remain on this Court forever." T h e election o f a prochoice president, and then White's replacement by Ginsburg, told Blackmun that his monu­ ment, Roe v. Wade, was safe for the foreseeable future. ( W i t h Ginsburg, the 5 - 4 margin in Casey had become a 6 - 3 prochoice majority.) A t Renaissance Weekend in December 1 9 9 3 , Blackmun had given Clinton a strong hint that he would retire the following year, and that is what he did.

T h e transformed political environment o f 1 9 9 4 changed the selec­ tion process—and the Court itself. T h e constitutional right to choose abortion may have been safe, but a conservative movement was crest­ ing. Democrats still controlled the W h i t e House and both houses o f Congress, but the momentum was with their adversaries. To some ex­ tent, the shift reflected the immediate political problems o f a new ad­ ministration, but there were deeper trends at work, too. T h e judicial counterrevolution had been in the making for a long time.

In April 1 9 9 4 , Clinton began the search for Blackmun's replacement much the way he did for W h i t e ' s thirteen months earlier. Again, Clinton wanted a politician instead o f a judge, and again he asked George Mitchell to take the seat. T h e Maine senator had already an­ nounced that he would not run for reelection in November, so there appeared to be few obstacles to his accepting. B u t Mitchell told Clinton that he wanted to make one last push for health care as ma­ jority leader. Taking the appointment would doom the legislation, he said. In the end, Mitchell just didn't want to be a Supreme Court jus-

76 Jeffrey Toobin

tice. After a period o f agonizing, Bruce B a b b i t t also took himself out o f the running.

Clinton's search for a Supreme Court justice returned to its custom­ ary location—square one. T h i s time, though, there was a seriousness and discipline that had been lacking the previous year. Clinton had already thought about most o f the likely candidates. His own deteriorating political status made a consensus choice virtually a ne­ cessity. And there was, finally, the recognition that Blackmun's re­ placement would likely be the last appointment that Clinton would get to make. B y Supreme Court standards, the remaining justices were relatively young in 1 9 9 4 . For a generation o f putative D e m ­ ocratic appointees, it was now or never.

Senator Kennedy resumed pushing for Stephen Breyer. Like many other things about the earlier selection process, news o f Clinton's dis­ mal interview with Breyer had leaked. So Kennedy, ever resourceful, sent the president a videotape o f a witty speech Breyer had given to a group o f visiting judges from Russia. See, the Massachusetts senator was saying, he's not such a stuffed shirt. Breyer was fortunate, too, that Nussbaum had been replaced as W h i t e House counsel by Lloyd Cutler, a Washington corporate lawyer with a great fondness for Breyer.

For Clinton, though, the real issue was Richard Arnold, the federal appeals court judge from Little R o c k .

Arnold belonged to frontier aristocracy. In the early part o f the cen­ tury, his maternal grandfather, Morris Sheppard, had served as a sen­ ator from Texas for almost three decades. His daughter married into the Arnolds o f Texarkana, where the men had been practicing law for generations. Born in 1 9 3 6 , Richard received a classical education, studying Latin and Greek first at Phillips Exeter Academy and then at Yale, where he graduated first in his class. In a debate with students from Oxford and Cambridge who quoted Cicero in Latin, Arnold clinched the argument by replying from memory with the next pas­ sage o f the work. Arnold was likewise valedictorian at Harvard Law School, class o f I 9 6 0 , ahead o f his classmate N i n o Scalia. He clerked for J u s t i c e Brennan on the Supreme Court. Such were his intellect and charisma that Arnold was nearly a legend before he even began prac­ ticing law.

Arnold settled in Arkansas, working alternately in private practice and government service, mostly for Governor and then Senator Dale Bumpers. He wrote a new constitution for the state. In 1 9 7 8 ,

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President Carter nominated him to the district court and, two years later, to the Court o f Appeals for the Eighth Circuit. In a remarkable testament to the esteem in which the Arnold family was held, the first President Bush named Richard's younger brother Morris to the same court in 1 9 9 1 - They were the only brothers in American history to serve on the same federal court o f appeals.

In the legal profession, an Arnold nomination would have been greeted with something close to acclamation. Richard's politics were moderate; in his best-known ruling, in 1 9 7 9 , he forbade the state o f Arkansas from limiting high school girls to half-court basketball while allowing boys to play full court. More than any ideology, Arnold was better known for his eloquence and fairness, and he was admired across the political spectrum. After Blackmun stepped down, more than a hundred federal judges wrote a joint letter to Clinton asking that he nominate Arnold—their action remains unprece­ dented. Scalia, his law school classmate, called Arnold and asked, "Would it help i f I screamed how awful you are?" Clinton himself adored, even looked up to Arnold. They were occasional golfing part­ ners, and as with everything else, Arnold excelled at the game.

There was only one problem. Arnold, who was fifty-eight, had been diagnosed with cancer almost two decades earlier. In blunt terms, Clinton didn't want to nominate Arnold i f he thought the judge was soon going to die.

Steven U m i n , a Washington lawyer and close friend o f Arnold's since their days at Yale College, understood that Arnold's health would be the major issue in his candidacy for the Court. H e thought the only way to address the issue was head-on. Two o f Umin's former law part­ ners, Edward Bennett W i l l i a m s , and Larry Lucchino, later a promi­ nent baseball executive, had been treated for lymphoma by Lee Nadler, a professor at the Dana-Farber Cancer Institute at Harvard Medical School. Nadler was among the world's foremost authorities on Arnold's disease. Most relevantly, Nadler had helped push Paul Tsongas out o f the race for president in 1 9 9 2 , saying that the former senator's cancer remained life-threatening. (Tsongas died o f the dis­ ease in 1 9 9 7 . ) U m i n thought i f Nadler would offer a positive progno­ sis for Arnold, who had a similar illness to Tsongas's, Clinton would surely appoint him to the Court.

78 Jeffrey Toobin

Through Mack McLarty, the W h i t e House chief o f staff (and him­ self a great fan o f Arnold's), U m i n arranged for Clinton himself to call Nadler and ask him to review Arnold's medical file. A pugnacious character with abundant self-confidence, Nadler turned Clinton down. "Mr. President, you can ask me to do anything you want," Nadler said. " B u t i f somebody is going to ask me to look at this guy's records, it's got to be him. T h e n I would report to him, and he could share the report with you."

Amused by the doctor's moxie, Clinton said he was sure Arnold would approve and he would see that the records were sent to Nadler promptly. In their one telephone conversation during this period, a follow-up to Clinton's call, Arnold told Nadler, "Just do the right thing, doctor. Tell the truth."

A few days later, Arnold's records arrived at Nadler's home, outside Boston. T h e first clue to the seriousness o f Arnold's condition was the size o f the file—thousands o f pages, which stacked ten feet high. T h e judge had been diagnosed in 1 9 7 6 , eighteen years earlier, with low- grade non-Hodgkin's lymphoma. H e was treated immediately and suffered few ill effects. B u t Arnold's disease did not follow a usual course. In 1 9 9 1 , a lymphoma was found in his colon. In 1 9 9 3 , he had radiation to eliminate tumors in his sinuses. Also that year, Arnold re­ ceived chemotherapy to eliminate malignant cells in his blood and bone marrow.

T h e paradox was that Arnold had continued to function more or less normally. T h e disease was not debilitating. Some people lived with these kinds o f recurrences for many years. B u t Nadler saw that the tumors were changing biologically, making them harder to treat. A t the least, years o f difficult chemotherapy were in Arnold's future. O n the morning o f Friday, May 1 3 , Nadler called Arnold, who was sitting on an appeal in Minneapolis, and told him his conclusions. "Lee, you have no choice," Arnold said. "You have to say no."

A t 1:00 p.m. that day, Nadler reached Clinton, who was on a speakerphone in the Oval Office. T h e conversation began in a light- hearted vein, when Nadler said he could hear that Clinton was eating lunch.

" W h a t are you eating, Mr. President?" "A B i g Mac and fries," Clinton said. "As an oncologist, I don't think that's so smart." Nadler said there was no way he could say that Arnold's disease

"would not interfere" with his duties as a Supreme Court justice. He

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had cancer all through his body. W h a t Arnold needed was skilled, continuing care.

"Any way we can turn you around on this?" Clinton asked. There wasn't, said Nadler.

At 3 : 4 5 , Clinton asked his staff to leave him alone to think about what to do. A half hour later, he reached Arnold at the Memphis air­ port, where he was changing planes on the way home to Little R o c k . Clinton was weeping when he said he wasn't going to appoint him.

Far from holding a grudge against Nadler, Arnold asked to become his patient. His distinguished service on the judiciary continued, as did his cancer treatments. In time, though, chemotherapy became less effective, and he died on September 2 3 , 2 0 0 4 , at the age o f sixty- eight. Eight Supreme Court justices, including Stephen Breyer, issued statements mourning Arnold's passing, an unprecedented set o f trib­ utes to a lower-court judge.

At 6:15 p.m. on May 1 3 , Clinton went on television to nominate Breyer. T h e announcement was peculiar, because the W h i t e House, eager to make the evening news, didn't even bother to wait for Breyer to come down from Boston, so the president stood alone in the Rose Garden. This search had taken just thirty-seven days, compared with the eighty-seven-day marathon to pick Ginsburg, but this selection, too, ended with a kind o f disappointment for Clinton. His words were perfunctory as he talked about Breyer, and the president's face bore traces o f the sadness he felt in learning the severity o f Arnold's illness. Still, with Breyer as with Ginsburg, the nomination would come to be seen as a great success. Clinton had again selected a justice who won close to universal praise and reflected the president's own values and views with great precision.

W h e n Breyer finally did make it to the W h i t e House the follow­ ing Monday, he made a subtle allusion to the disaster o f his previous visit. "I'm glad I didn't bring my bicycle down," he said. A t fifty-five, Breyer had an almost childlike glee at being nominated. Clinton re­ membered that even though Breyer had been all but publicly humil­ iated in the contest for W h i t e ' s seat, he still came to Ginsburg's swearing-in.

T h e gesture was characteristic. Breyer was the sunniest individual to serve on the Supreme Court in a great many years. O p t i m i s m was

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the core o f his character. H e had a résumé that was almost as dazzling as Arnolds—Stanford, Marshall Scholar at Oxford, Harvard Law School, clerkship for J u s t i c e Arthur J . Goldberg, then tenure at a young age at Harvard Law—but the biggest influence on him came at a less exalted institution.

Breyer was a product o f a specific place and time—San Francisco in the 1 9 5 0 s . W h e n he became famous, much later, the only one o f his alma maters that he would invariably mention in speeches was Lowell H i g h School. "That doesn't mean a lot to you, but it means a lot to me," he would say, to puzzled audiences. Lowell was the most elite public school in the city, with competitive admissions, and the place sizzled with the ambitions and smarts o f recent immigrant offspring. T h i s was not the San Francisco o f the following decade, o f Haight- Ashbury and the Summer o f Love, but rather a growing metropolis that was both cozy and booming. In summers, Breyer worked as a "hasher" (a slinger o f hash) in a city-owned camp in the Sierras where the families o f firemen, policemen, doctors, and lawyers mingled hap­ pily. Few places, before or since, matched San Francisco o f that era for civic harmony and c o m m i t m e n t to community. (As Breyer would al­ ways note o f this period, the options were not quite as open for blacks and women.) For forty years, Breyer's father worked as a lawyer for the San Francisco school system. His mother was a homemaker who vol­ unteered with the Democratic Party and the League o f Women Voters.

For all his degrees, the most important part o f Stephen Breyer's education began in the midseventies when he commuted from Harvard to Washington to work as a counsel for the Senate Judiciary C o m m i t t e e , then chaired by Edward Kennedy. There, Breyer eventu­ ally became chief counsel and encouraged Kennedy to embrace a cause that moderated his image as a doctrinaire liberal: deregulation—of the airlines, o f trucking, and o f the natural gas industry. It was an un­ usually harmonious and productive time for the committee, and Breyer won the admiration o f senators across the political spectrum.

T h i s turned out to be especially important in 1 9 8 0 , when J i m m y Carter nominated Breyer to the First Circuit. Ronald Reagan had al­ ready won the election when Breyer came before the committee, and the Republican chairman, Strom Thurmond, had no reason to let the lame duck president fill a precious seat on the court o f appeals. B u t Kennedy prevailed upon Orrin Hatch to ask Thurmond to let Breyer through. Calling Breyer "a member o f the family," for his work on the

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committee, Hatch won over the venerable chairman. Breyer was the last judge confirmed before Carter left office. A m i d similar good feel­ ings, the Senate confirmed his nomination to the Supreme Court by an 8 7 - 9 vote on J u l y 2 9 , 1 9 9 4 .

Breyer arrived at the Court bearing an uncynical love o f govern­ ment. H e believed that government existed to serve people and solve problems, and to a great extent, that it did. More to the point, Breyer admired and trusted Congress and thought that the people's represen­ tatives generally worked in the people's interest. After the first or sec­ ond time, most justices wearied o f attending the president's State o f the Union address, fretting about the question o f when to applaud and generally disdaining their awkward status at the occasion. B u t Breyer felt his attendance was a gesture o f solidarity with the other branches o f government, and he never missed it—even when he was the only justice there.

In other words, as Stephen Breyer began his first full term on the Court, he was profoundly out o f step—with the country, with the Congress, and even, to some extent, with his new colleagues. T h e coun­ try, it seemed, had turned on the very idea o f government and espe­ cially on its personification, the members o f Congress. O n November 8, 1 9 9 4 , voters unseated the Democratic majority in both the House and the Senate. T h a t same day, as it happened, the Court heard argu­ ments in a case that threatened everything Breyer believed in—United States v. Lopez.

The members o f the Federalist Society and others who wanted the Court to undermine the constitutional basis for a strong federal gov­ ernment needed a case where the issue was raised. So in the strange serendipity that often yields important cases, the matter o f Alfonso Lopez J r . appeared with exquisite timing.

O n March 1 0 , 1 9 9 2 , Lopez, a twelfth grader, arrived at Edison High School in San Antonio carrying a concealed . 3 8 caliber handgun and five bullets. Acting on an anonymous tip, school authorities con­ fronted him, and Lopez disclosed the weapon. H e was arrested and charged under Texas law with possession o f a firearm on school prem­ ises. B u t the state charges were dismissed the next day when federal agents accused him o f violating the Gun-Free School Zones Act o f 1 9 9 0 , which prohibited possession o f a gun at or near a school. Lopez

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would have walked quietly away from the case i f he had been sen­ tenced to probation. B u t the judge gave him six months, which inter­ fered with Lopez's plans to join the Marine Corps, so he asked his public defender to appeal. T h e facts o f the case were simple; the law, it turned out, was not.

B y the time Lopez's case began working its way through the courts, the ideas championed by the Federalist Society had coalesced. T h e so­ ciety itself had grown to forty thousand members, with an annual budget o f more than $ 3 million. T h e movement even got a name, courtesy o f J u d g e Douglas H. Ginsburg, who was once briefly famous. After Robert Bork's nomination failed in the Senate, Reagan named Ginsburg, then a forty-one-year-old judge on the D . C . Circuit, as his replacement. Ginsburg's nomination quickly collapsed, however, fol­ lowing news reports that he had smoked marijuana while he was a law professor. Ginsburg soldiered on as a fervently conservative ap­ peals court judge, and he later published an article in Regulation, a. lib­ ertarian magazine published by the Cato Institute. Ginsburg wrote in an admiring tone about the state o f constitutional law before 1 9 3 7 , when the Supreme Court struck down virtually all efforts to regulate the economy. T h e Court had relied on doctrines like the Commerce Clause, which now represented what Ginsburg called the "Constitution in E x i l e . " "The memory o f these ancient exiles," he wrote, "banished for standing in opposition to unlimited govern­ ment, is kept alive by a few scholars who labor on in the hope o f a restoration, a second coming o f the Constitution o f liberty—even i f perhaps not in their own lifetimes."

In short, the Constitution in Exile movement represented a direct threat to the modern welfare state, and the United States v. Lopez case loomed as its first major test in the Supreme Court.

As usual, O'Connor had an early question for Drew S. Days I I I , the solicitor general, who was defending the constitutionality o f the guns-in-schools law.

"Is the simple possession o f something at or near a school 'com­ merce' at all? Is i t ? "

"I think the answer to that is that it is," Days answered. "I would have thought that it wasn't," O'Connor replied in her di-

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rect way, "and I would have thought that it, moreover, is not inter­ state."

It was an inauspicious start to Days s argument, which went down­ hill from there. O'Connor, Kennedy, Rehnquist, and Scalia demanded to know how Congress could presume to regulate mere gun posses­ sion, near a school or otherwise.

B u t the subtext o f the questions was almost as significant as the words themselves. T h e justices oozed contempt for Congress, which they clearly regarded as a bumbling, only quasi-respectable institu­ tion.

"Can you tell me, Mr. Days," Scalia said, with a smirk, "has there been anything in our recent history in the last twenty years where it appears that Congress made a considered judgment that it could not reach a particular subject?"

Laughter drowned out the beginning o f Days's answer. At another point, Days said that Congress had a "rational basis" for

connecting school violence to commerce. In response, Souter quipped, "Benjamin Franklin said, 'It is so

wonderful to be a rational animal, that there is a reason for everything that one does.' " Again, laughter filled the courtroom.

Through most o f its history, the Supreme Court had close ties to Congress. Many justices were ex-senators. B u t the Rehnquist Court had no such connections. Rehnquist and Scalia had worked only in the executive branch, O'Connor and Souter in state government, Kennedy, Stevens, and Ginsburg in private practice and law schools. Thomas, who observed his customary silence during the Lopez argu­ ment, had worked briefly on the staff o f Senator J o h n Danforth o f Missouri, but the searing experience o f his confirmation hearings per­ manently soured him on Congress. Breyer alone felt any sort o f kin­ ship with this coordinate branch o f government.

It was still early in Breyer's career on the Court, so he had not yet asserted himself as the powerful presence in oral arguments that he would become. B u t finally, frustrated at both Days and his colleagues, Breyer unloaded on the public defender who was representing Lopez. "So what would you say about the obvious argument, the simple ar­ gument against your position, that this isn't a borderline case?

"The guns move in interstate commerce, likely, the books do, the desks do, the teachers might," Breyer said. "People will not move to places in this country where children are being killed in schools by

84 Jeffrey Toobin

guns, and in fact, i f the Federal Government can't do something about it, maybe the whole economy will go down the drain in a thou­ sand obvious ways." Breyer referred to a case from 1 9 4 2 where the Court said that homegrown wheat was sufficiently connected to inter­ state commerce to be regulated under the Commerce Clause. " I f some homegrown wheat affects interstate commerce, which I guess is a bor­ derline question economically, certainly guns in schools do really af­ fect commerce." All Breyer had done was summon the unquestioned state o f constitutional law for more than a half-century.

B u t Breyer's advocacy (in the form o f his questions) did not per­ suade a majority o f his colleagues. O n April 2 6 , 1 9 9 5 , the Court ruled 5 - 4 that Congress had violated the Commerce Clause in passing the Gun-Free School Zones Act. Rehnquist's opinion (joined by O'Connor, Scalia, Kennedy, and Thomas) represented the first time since 1 9 3 5 that the justices had invalidated a law on the grounds that Congress exceeded its authority under the Commerce Clause. T h e rhetoric o f the opinion meshed with that o f Newt Gingrich, the newly installed Speaker o f the House. Quoting J a m e s Madison in Federalist N o . 4 5 , Rehnquist wrote, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." T h e scope o f "big government" was officially under assault from both sides o f First Street.

T h e decision prompted the first full-throated dissent o f Breyer's ca­ reer. "In my view, the statute falls well within the scope o f the com­ merce power as this Court has understood that power over the last half century," he wrote. Worse, he said, the majority's decision represented a major threat to many other laws on the books. "Congress has en­ acted many statutes (more than 1 0 0 sections o f the United States Code), including criminal statutes (at least 25 sections), that use the words 'affecting commerce' to define their scope," Breyer wrote. "The Court's holding . . . threatens legal uncertainty in an area o f law that, until this case, seemed reasonably well settled." B u t that, o f course, was the point. T h e seeds sown by the Federalist Society and its allies were starting to bear fruit.

Like the other justices, Breyer knew the famous question that W i l l i a m Brennan used to ask his law clerks. What's the most impor­ tant law at the Supreme Court? T h e clerks would puzzle for some time. Freedom o f speech? . . . Equal protection? . . . Separation of powers? . . . until the justice would raise his tiny hand and say, "Five!

T H E N I N E 85

T h e law o f five! W i t h five votes, you can do anything around here!" Breyer, who clerked on the Court in its liberal heyday, would remark when the Brennan story was told, "Easy for him to say. H e started with seven votes." B u t J u s t i c e Stephen Breyer served on a very different Court. In the summer after Lopez, a friend praised him for his opinion in the case. Breyer gave a wistful smile and waved four fingers in the air. "Four votes," he said. "Only four votes."

7

W H A T SHALL BE O R T H O D O X

It wasn't just the Federalist Society leading the conservative offen­sive in the Supreme Court during the 1 9 9 0 s . T h e law professors and their students could come up with theories and write learned articles and op-ed pieces, but the movement needed the legal equiva­ lent o f foot soldiers, too—the lawyers who would actually bring and argue the cases before the Court. In law, as in politics, the best troops came from the most passionate and engaged part o f the conservative coalition—evangelical Christians.

Evangelicals joined the fight at the Supreme Court because they, even more than academic critics on the right, were the most outraged by the state o f America. W h i l e conservative scholars spun theories about the scope o f the Commerce Clause, evangelical activists wit­ nessed the actual impact o f Supreme Court decisions. In front o f abor­ tion clinics. A t school board meetings. At high school football games. And the activists were right: the Court had long lined up against their interests. For more than a generation, the justices had engaged in a more-or-less explicit initiative to secularize the Constitution.

W h e n it came to religion in public life, the framers o f the Constitution espoused two potentially contradictory ideas. T h e First Amendment states, "Congress shall make no law respecting an estab­ lishment o f religion, or prohibiting the free exercise thereof." For more than a century after the founding o f the republic, the courts tol­ erated a great deal o f religion in the public sphere—like prayer and B i b l e reading in schools, frequent invocations o f God and evocations o f the Ten Commandments in government buildings (and on cur­ rency). A t the time, this kind o f "free exercise" o f religion did not

T H E N I N E 87

amount to an "establishment" thereof. Indeed, the government was free to require some degree o f piety, or patriotism, from its citizens.

This was especially true in the late 1 9 3 0 s , when public schools around the country insisted that students salute and pledge allegiance to the flag at the beginning o f each school day. Many Jehovah's Witnesses objected to the practice, believing that it violated the com­ mandment "Thou shalt have no other gods before me." As World W a r I I grew closer, the Witnesses faced a vicious response. Students were expelled from school. Protests were held outside their homes. W h e n they asked the Supreme Court for protection, in the 1 9 4 0 case o f Minersville School District v. Gobitis, they lost. T h e majority asserted that schools had the right to insist that students participate in rituals designed to "secur[e} effective loyalty to the traditional ideals o f democracy."

W i t h i n months o f that decision, though, the Supreme Court, along with the rest o f the nation, saw what could happen in a society where loyalty was coerced and nonconformism punished. T h e chilling exam­ ple of fascism in Europe reminded Americans, including judges, o f the importance o f freedom o f speech and worship. In this way, the ex­ ample o f Nazism shaped what the American Constitution would be­ come. T h e transition was fast, too. J u s t three years after Gobitis, in 1 9 4 3 , the Witnesses brought a nearly identical challenge, and this time they won, in a case that may represent the Supreme Court's quickest reversal o f one o f its own precedents.

J u s t i c e Robert H . Jackson's opinion for the majority in West Virginia Board of Education v. Barnette, one o f the most eloquent in the Court's history, set down principles that would become lodestars o f the American creed. "To believe that patriotism will not flourish i f pa­ triotic ceremonies are voluntary and spontaneous instead o f a compul­ sory routine is to make an unflattering estimate o f the appeal o f our institutions to free minds," he wrote, before concluding with one o f the most famous passages in the annals o f the Court: " I f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters o f opinion or force citizens to confess by word or act their faith therein. I f there are any circumstances which permit an exception, they do not now occur to us."

From this ruling, it was just a short jump for the Court to impose ever-greater limits on mandatory observances o f any kind in public

88 Jeffrey Toobin

settings. T h e next key moment came in 1 9 6 2 , when the Court banned prayer in public schools, even when children were given the right not to participate. In Engle v. Vitale, J u s t i c e Hugo Black employed the same reasoning as J a c k s o n did in prohibiting mandatory salutes o f the flag. " W h e n the power, prestige and financial support o f government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing offi­ cially approved religion is plain," he wrote. A year later, the justices banned mandatory B i b l e reading in public schools as well.

T h e backlash to these rulings was not long in coming. Prayer and B i b l e reading had been staples o f American public education for generations. T h e court-ordered end to such religious observance in public schools was soon followed by the chaotic late 1 9 6 0 s . The cause-and-effect was debatable, but for many Christians there was a clear connection between the increased secularization o f public life and the licentiousness and disorder that followed. In this period, Rev. B i l l y Graham, in an indirect way, and then Rev. Pat Robertson, in ex­ plicit terms, merged their religious messages with a conservative po­ litical agenda. In the election o f 1 9 8 0 , Rev. Jerry Falwell mobilized what he called the Moral Majority to defeat a Democratic president and a generation o f liberal senators. B y the time B i l l Clinton was elected president, the evangelical movement represented the core of his conservative opposition. T h e twin pillars o f their agenda were clear—one against legalized abortion, the other for public religious expression, especially prayer in schools.

B y the midnineties, after Casey, there was no point in pushing an antiabortion agenda on a Court that had made up its mind on the is­ sue. B u t the issue o f religious expression was wide open. Curiously, al­ though the evangelical movement had amassed enormous political clout, it had not cultivated comparable leadership in the legal arena. B u t all social movements in America eventually find a strategist who sets their course in the courts—their Thurgood Marshall or Ruth Bader Ginsburg—and this was the moment when the evangelicals discovered theirs. Oddly enough, their savior, J a y Sekulow, turned out to be a nice Jewish boy from Brooklyn.

Sekulow's mother went to high school with R u t h Bader Ginsburg, but J a y didn't just come from a different generation than the new

T H E N I N E 89

justice—he chose to live in a different world. H e was born on J u n e 1 0 , 1 9 5 6 . His family tracked the migration pattern o f the country as a whole—city to suburb to Sun B e l t , in his case, Brooklyn to Long Island to Atlanta. An indifferent student, unmotivated rather than unintelligent, Sekulow initially planned only to attend a two-year college and then get a job. B u t junior college ignited a desire, i f not exactly a roaring bonfire, for more education. Too lazy to look else­ where, Sekulow settled on a college close to his home, Atlanta Baptist College. H e worried what his parents, moderately observant J e w s , might say about his choice, but his father encouraged him. "Baptist- shmaptist," the senior Sekulow said. "Go ahead. G e t yourself a good education."

Sekulow was drifting through the mandatory B i b l e classes when a friend, whom he regarded at the time as a "Jesus freak," challenged him to study the B o o k o f Isaiah. Sekulow knew that J e w s were sup­ posed to believe that someday the Messiah would c o m e — b u t that he hadn't come yet. S t i l l , in reading the passages about the Messiah, Sekulow thought he recognized the description—it was Jesus Christ. Sekulow still considered himself a J e w , but one who believed that Jesus was the savior. In time, Sekulow learned that there were other Jews who shared his belief, and they were called "Jews for J e s u s . " A t a ceremony in February 1 9 7 6 , Sekulow marched to the front o f a J e w s for Jesus church service and announced that he had committed his life to Jesus Christ.

Still, he had to make a living. Sekulow went to law school at Mercer University, in Georgia, found a job with the Internal Revenue Service, and then started a private practice with a friend. His firm set up tax shelters for renovations o f historic buildings in Atlanta. Soon Sekulow and his partner were prospering. As Sekulow later related in speeches, he was amazed that clients were paying him retainers o f $ 2 5 , 0 0 0 or more, and he was just twenty-six years old! " B o t h my family and my business life were flourishing," he said. "In addition to the law practice, I began a real estate development firm which grossed over $ 2 0 million after the first year." Sekulow generally omitted what happened next. T h e deals turned sour. His law firm declared bank­ ruptcy. A new chapter in his life hovered somewhere between a good idea and a necessity.

Fortunately, about a year earlier, Sekulow had signed on as the gen­ eral legal counsel for the national J e w s for Jesus organization, and it turned out that the group had a case that was heading to the Supreme

90 Jeffrey Toobin

Court. Sekulow decided to argue it himself and wound up changing American constitutional law.

J e w s for Jesus believes its members should engage in missionary work to seek out converts. T h e i r best-known (or notorious) form o f prosely­ tizing consists o f aggressive leafleting, especially in public places like airports. In response to this practice, which was frequently annoying to passengers, the governing board o f Los Angeles International Airport banned all "First Amendment activities" on its grounds. On J u l y 6 , 1 9 8 4 , pursuant to the policy, airport police evicted Alan Howard Snyder, "a minister o f the Gospel" in J e w s for Jesus, for dis­ tributing religious literature. Before Sekulow became involved in the matter, his colleagues in California sued to invalidate the airport rule.

T h e original theory o f the case was straightforward. Proselytizing was a form o f religious activity among J e w s for Jesus followers. A blanket ban on the practice thus interfered with their First Amendment right to the "free exercise" o f their religion. T h a t was how these cases had customarily been argued. Religious expression was always de­ fended under the Free Exercise Clause.

B u t Sekulow s relative ignorance about the Constitution turned out to be his best weapon. Sure, cases involving religion were always ar­ gued under the Free Exercise Clause. B u t Sekulow came up with a dif­ ferent theory. T h e First Amendment, after the religion clauses, goes on to say that Congress shall make no law "abridging the freedom of speech." (In a series o f cases after World W a r I I , the Court said that the First Amendment was binding against states and localities as well as Congress.) Sekulow thought the eviction o f the J e w s for Jesus min­ ister was a speech case, not a religion case. W h a t the airport was do­ ing was censoring free speech—and it didn't matter whether the speech concerned religion or politics, which was the more familiar ba­ sis for free speech claims. W h a t made Sekulow's idea so appealing was that the Court had been far more generous in extending protection to controversial speech than to intrusive religious activities. Sekulow could draw on a legion o f cases where the justices protected all sorts o f obnoxious expression, including distributing obscenity, waving picket signs, even, in one famous case, wearing a jacket bearing the words "Fuck the Draft" in the Los Angeles County Courthouse.

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Sekulow wondered how these activities could be permitted but not the polite distribution o f pamphlets.

So did the justices. A t the oral argument on March 3 , 1 9 8 7 , Sekulow later recalled in a speech, "I had walked into the courtroom thinking about Jesus and how he overturned the moneychangers' ta­ bles at the Temple. Jesus was an activist. H e stood up for what he knew was right. I drew strength from his example." B u t in front o f the justices, Sekulow didn't even mention religion. H e said the case was solely about free speech. Sekulow knew he was on to something when he heard his adversary list all the supposed reasons that the air­ port banned the J e w s for Jesus leafleters. A t one point, Thurgood Marshall, who was by then ailing, crotchety, and usually silent on the bench, roused himself and growled, "Can I ask you a question? W h a t is wrong with what these people do?"

"Nothing is wrong with what they do," the lawyer said. "Well, how can you prohibit something that doesn't do anything

wrong?" Marshall had gone to the heart o f the matter. For all the airport's

rationalizations, the case was about the censorship o f an unpopular group—exactly what the speech clause o f the First Amendment was designed to prevent. T h e vote in Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. was unanimous, with O'Connor writing for the Court that the ordinance violated the First Amend­ ment.

Sekulow immediately began putting his insight to work for the broader evangelical movement. A group o f students at Westside H i g h School in Omaha wanted to start a Christian club, to read the B i b l e and pray together after class. T h e principal and local board o f educa­ tion turned the group down, saying that to permit a Christian student group in a public school would amount to an "establishment" o f reli­ gion, in violation o f the First Amendment. Sekulow took the appeal to the Supreme Court.

Again, Sekulow steered away from the religion arguments under the First Amendment. To him, the case was about the free speech rights o f the students. I f other youth groups could use the school fa­ cilities, why not the Christian kids? Once more, Sekulow won over­ whelmingly, with O'Connor again writing the opinion and only Stevens in dissent. More importantly, O'Connor essentially gave Sekulow and his allies a road map for expanding the place o f religion

92 Jeffrey Toobin

in public schools. In the key passage in Board of Education ofWestside Community Schools v. Mer gens, O'Connor wrote, "There is a crucial dif­ ference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. W e think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis." T h e Court was saying that religious activity was welcome at public schools, as long as it was students and not teachers or administrators who initiated it. Evangelical students and their parents were only too happy to accept the invitation.

Sekulow's victory in the Mergens case in 1 9 9 0 drew Pat Robertson's at­ tention. T h e son o f a senator and a graduate o f Yale Law School him­ self, Robertson had established himself as a political, financial, and religious powerhouse. H e had started the Christian Broadcasting Network in I 9 6 0 and soon found that he needed $ 7 , 0 0 0 per month to keep it on the air. So he ran a telethon seeking seven hundred peo­ ple to give $ 1 0 apiece, and he called the program The 700 Club. Based in Virginia Beach, the network and its signature program launched Robertson's vast empire, which included, by the 1 9 8 0 s , broadcast, real estate, cable operations, and even a university, Regent, with more than a thousand students. (Later, he sold just one part o f his operation to A B C for $ 1 . 9 billion.) In 1 9 8 8 , Robertson ran a respectable race for the Republican presidential nomination, which included besting Vice President George H . W . Bush in the Iowa caucuses, but he had never figured out a reliable way to bring his fight to the courts.

So in 1 9 9 0 , he asked Sekulow to join him in starting a conserva­ tive counterpart to the American Civil Liberties Union. Like the A C L U , the new entity would not limit itself to a single issue—such as abortion or school prayer—but instead represent a complete polit­ ical agenda. Even the name o f the new operation would announce an institutional rival to the A C L U ; it was called the American Center for Law and J u s t i c e , the A C L J . (The idea also addressed Sekulow's per­ sonal financial problems, because Robertson put his enormous direct- response fund-raising expertise at the disposal o f the A C L J . )

T H E N I N E 93

Robertson's money and clout turned Sekulow from a freelance opera­ tive with an interesting idea into a major player in shaping the agenda o f the Supreme Court. B u t he needed cases that would give the jus­ tices the opportunity to rule in his favor.

Sekulow's mission wasn't easy, at least at first. For one thing, he didn't look the part. His New York accent never faded, and his sharp suits, loud ties, and monogrammed shirts suggested a Seventh Avenue gar­ ment executive more than an evangelical activist. O n c e , at a hearing where he was defending Operation Rescue's antiabortion protesters, clinic workers assumed the fast-talking lawyer represented them. "Wrong table," he said.

B u t the evangelical community was growing so fast, and bumping up against government regulation so often, that cases flooded the A C L J . In many o f them, the question was how much o f a Christian message the evangelicals could get into the schools. Organized prayer was out; Christian student groups were in. W h a t , then, about non- student evangelical groups using school property after hours?

That was Sekulow's first major case under Robertson's auspices. New York state law allowed community groups to use school prop­ erty for "social, civic, and recreational meetings" that were "nonex­ clusive and open to the general public." Lamb's Chapel, a small evangelical church on Long Island, asked to use the Center Moriches school district's facilities to show a series o f six films featuring lectures by J a m e s Dobson, a central figure in the national evangelical move­ ment. Dobson had founded Focus on the Family, in Colorado Springs, and turned it into a sprawling enterprise with a broad (and very con­ servative) political and religious agenda. T h e lectures were a guide to "the undermining influences o f the media that could only be counter­ balanced by returning to traditional, Christian family values instilled at an early stage." In Focus on the Family's description o f one lecture, for example, " 'The Family Under Fire' views the family in the con­ text o f today's society, where a 'civil war o f values' is being waged. Dr. Dobson urges parents to look at the effects o f governmental interfer­ ence, abortion and pornography, and to get involved." (This dis­ claimer followed: "Note: T h i s film contains explicit information regarding the pornography industry. N o t recommended for young au-

94 Jeffrey Toobin

diences.") T h e school district rejected the request to show the films, because they "appear to be church related." Sekulow took the case to the Supreme Court.

There, from the start, Sekulow stuck with his trademark argument. "Mr. Chief J u s t i c e and may it please the Court," he began. "This case is about censorship o f Lamb's Chapel's speech, which was entertained for the purpose o f having a film series at the school facilities to show and discuss contemporary family issues. T h e direct targeting o f reli­ gious purpose as an exclusion under the access policy o f the school dis­ trict is both content based and viewpoint based, and does not meet constitutional scrutiny." Like the J e w s for Jesus leafleters in L.A. and the Christian students in Omaha, the Lamb's Chapel evangelicals were victims o f government repression, not the advance agents o f a state religion.

"So what provision o f the Constitution are you relying on?" O'Connor asked.

"First Amendment, as applied to the states through the Fourteenth, freedom o f speech."

" W h i c h part o f i t ? " "Free speech." Religion couldn't be privileged under the Constitution, Sekulow

insisted, but it couldn't be penalized, either. "The way I understand the respondents' argument, the atheists are in, the agnostics are in, the communists are in, the religion is not in," Sekulow told the jus­ tices. "This is the type o f viewpoint discrimination that this Court has not sanctioned." T h e result, in Lamb's Chapel v. Center Moriches Union Free School District, was another unanimous victory for Sekulow. In 1 9 9 5 , under the same theory, the court ruled that the University o f Virginia could not subsidize some student publications but at the same time refuse to fund one called Wide Awake: A Christian Perspective at the University of Virginia. As J u s t i c e Kennedy wrote for the Court, "For the University, by regulation, to cast disapproval on particular viewpoints o f its students risks the suppression o f free speech and cre­ ative inquiry in one o f the vital centers for the nation's intellectual life, its college and university campuses."

B y the midnineties, the issue was settled. According to the stan­ dards o f Supreme Court litigation, Sekulow had emerged out o f nowhere to revolutionize an important rule of law. As a result of his efforts, it was clear that i f a school, airport, or other public forum was going to open up its facilities to some individuals or groups, the au-

T H E N I N E 95

thorities couldn't exclude religious speakers from the list. T h i s was an

important victory, but the evangelical agenda extended a great deal

further. W i t h Republicans now in control o f both the House and the

Senate (and many state houses), there was suddenly a real possibility

that governments m i g h t begin subsidizing religious activities.

Gingrich and others made plain that they believed churches did a

better job o f delivering all kinds o f government services—from job

training to running schools and prisons—than traditional official bu-

reaucracies. They wanted the federal government not merely to per-

mit these activities but, i f possible, to encourage and pay for them as

well. T h e question, then, was whether these ever-closer ties between

church and state would be approved by the Supreme Court.

T h e answer would likely turn on a bland phrase that blossomed

into one o f the most controversial issues o f the Rehnquist years—"the

Lemon test." T h e phrase dated to Lemon v. Kurtzman, a 1 9 7 1 opinion

by Chief J u s t i c e Burger. As the term evolved through the years, it

meant that any law that involved church and state functions had to

meet three criteria to be constitutional. T h e law had to ( 1 ) have a sec-

ular purpose, ( 2 ) neither advance nor inhibit religion, and ( 3 ) avoid

excessive "entanglement" o f government and religion. Over the years,

the Court has proposed many such "tests," which usually prove easier

to announce than apply. T h a t was true for Lemon as well. W h e n it

came to church and state, the real rule on the Rehnquist Court was

simpler. As with so many other areas o f the law, like abortion, it was

O'Connor's vote that made the difference. I f she thought a law

was constitutional, it was; i f not, it wasn't.

For Scalia, the Lemon test epitomized everything he loathed about

modern constitutional law, and about O'Connor's jurisprudence in

particular. "Like some ghoul in a late-night horror movie that repeat-

edly sits up in its grave and shuffles abroad after being repeatedly

killed and buried, Lemon stalks our Establishment Clause jurispru-

dence once again, frightening the little children and school attorneys

of Center Moriches Union Free School District," he wrote memorably

in a concurring opinion in Lamb's Chapel. In Scalia's view, Lemon gave

judges virtually unlimited discretion to resolve cases according to

what seemed fair to them. In contrast, Scalia wanted judges to apply

clear rules, dictated by the intent o f the framers, and the long history

o f entanglement between religion and American public life gave him

a rich lode o f material for his originalism. Prayer in schools, religious

displays like crèches on government land, public celebrations o f God

96 Jeffrey Toobin

and his works—all had been present at the time o f the framers and should be allowed today, according to Scalia. He believed that the framers meant the Establishment Clause merely to prohibit the cre­ ation o f a single state religion or government action that favored one religion over another; as for other government activities that endorsed religion generally or aided all religions equally, that was entirely ap­ propriate. In the words o f the dreaded Lemon test, Scalia believed that the Constitution not only permitted but encouraged entanglement between church and state.

In at least one respect, Scalia had a point. As many as six justices had criticized the Lemon test, but it still haunted the Court, mostly because O'Connor upheld it. O n church-state issues, like so many others, O'Connor had the swing vote, but not because she had trou­ ble making up her mind about whether she was a liberal or a conser­ vative. For O'Connor, centrism was a judicial philosophy in itself. W h e n she gave tours o f the Court, O'Connor would always point out the beautiful cast-iron lampposts in the courtyards. "Look at the bot­ tom o f the lampposts," she'd say. "They've got turtles around the bot­ tom, holding up the rest o f it. That's like us on the Court. We're slow and steady, and we don't move too fast in any direction." O'Connor believed that steadiness was a virtue, and it was O'Connor who, like the turtles, carried the opinions o f the Court on her back.

A case toward the end o f Clinton's first term illustrated the differ­ ence in Scalia's and O'Connor's approaches to church-state issues. As had often happened before, simple facts led the Court to a complex re­ sult. In the fall o f 1 9 9 3 , various civic groups in Ohio began seeking space for their holiday displays on the ten-acre plaza near the state- house in Columbus. T h e local authorities gave permission for the state to put up a Christmas tree, for a local synagogue to erect a meno- rah, and for the United Way to post a sign about the progress o f a fund-raising campaign. B u t the city denied a request from the local branch o f the K u K l u x Klan to place a Latin cross on the plaza, on the ground that such a cross on public property would represent the "es­ tablishment" o f a state religion, in violation o f the First Amendment. Vincent Pinette, the head o f the K K K in Ohio, sued to win the right to raise the cross.

In 1 9 9 5 , the Court ruled 7 - 2 that the K K K should have the right to display the cross on Capitol Square. T h e case produced a bewilder­ ing six different opinions, with various justices affiliating themselves with all or parts o f several o f them. Scalia and O'Connor both sup-

T H E N I N E 97

ported the K K K ' s legal position, but their rationales heightened the

differences between them. (Stevens and Ginsburg were the dissenters;

they believed that allowing the K K K to put up the cross did violate

the Establishment Clause.)

For Scalia, as always, the issue was clear. To him, speech by and

about religion received precisely the same protection under the First

Amendment as any other kind o f speech. "Our precedent establishes

that private religious speech, far from being a First Amendment or-

phan, is as fully protected under the Free Speech Clause as secular pri-

vate expression," he wrote. "Indeed, in Anglo American history, at

least, government suppression o f speech has so commonly been di-

rected precisely at religious speech that a free speech clause without re-

ligion would be Hamlet without the prince." True, the government

itself might not be able to erect religious symbols, but i f that govern-

ment allowed Democrats and Republicans to give speeches on a pub-

lic square, it had to permit Christians, J e w s , and even the K K K to

put up any symbols they wished as well. To Scalia, the Establishment

Clause "applies only to the words and acts o f government. I t was never

meant, and has never been read by this Court, to serve as an impedi-

ment to purely private religious speech."

O'Connor disagreed completely. In her view, a private religious dis-

play could violate the Establishment Clause i f a "reasonable, informed

observer . . . would think that the State was endorsing religion or any

particular creed." In Columbus, no reasonable person could think that

the state was endorsing the K K K ' s cross, so the group had a right to

display it. O'Connor's solution to the problem was a flexible balanc-

ing test, like the one in Lemon. T h e problem with such an approach,

o f course, was that it would not always be clear what the justices

themselves, much less the mythical "reasonable, informed observer,"

would conclude about a given religious display. W i t h characteristic

vitriol (especially where O'Connor was concerned), Scalia said her

opinion was "perverse" and "bizarre," and "invited chaos." And this

was in a case where the two justices agreed on the result.

B y 1 9 9 5 , O'Connor could slough off Scalia's tirades. After fourteen

years on the Court, she had come to feel great self-confidence in her

judgments, and i f her views didn't always give perfect guidance to the

lower courts, she thought it was better to be right than consistent.

"We're a common law court," she would say, without a trace o f defen-

siveness. " O f course, we 'make' law as we go along." O'Connor was

perfectly content each year to watch the parade o f crèches, crosses,

98 Jeffrey Toobin

menorahs, and the like passing through the Court's docket, awaiting her thumbs up or thumbs down.

T h e next subject on the horizon was what would become known as faith-based initiatives—government programs handed over to be run by private and religious organizations. As Sekulow and other litiga­ tors planned their litigation strategies, the question would usually come down simply to: " W h a t will Sandra do?"

8

W R I T I N G SEPARATELY

Few lawyers anticipating their appearances before the Supreme Court spent much time asking, " W h a t will Clarence do?" As O'Connor relished her place at the center o f the Court's deci­ sions, Thomas embraced an alternative model o f judging, one where he viewed himself as a principled outsider who cared little whether his opinions commanded a majority or even a single additional vote. He was a justice neither influenced by nor with influence upon his colleagues.

Thomas rarely spoke in oral arguments. H e was the only justice who suffered through a brutal confirmation fight. H e was the only African American. H e was more than a decade younger than most o f his colleagues. He traveled in an entirely different milieu, socializing at recreational vehicle campgrounds and N A S C A R tracks (where few people recognized him) and in the salons o f right-wing activists (where he was revered). H e was the friendliest, warmest justice, and he was full o f rage. He denounced self-pity and pitied himself. There was no one on the Court remotely like him—philosophically, j u - risprudentially, or personally.

As Thomas approached the completion o f his first decade on the Court, he had established the most distinctive judicial perspective among the justices. H e was by far the most conservative member o f the Rehnquist Court, probably the most conservative justice since the Four Horsemen, F D R ' s nemeses, retired during the New Deal. Thomas's opinions, i f they ultimately commanded a majority, would create not only new precedents—Roe overturned, virtually all reli­ gious displays allowed, virtually no executions stopped—but a trans­ formed nation. His opinion in Lopez, the Commerce Clause case,

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offered a clue to the shape o f that possible new world. Thomas joined Rehnquist's majority opinion striking down the Gun-Free School Zones A c t , but in a concurring opinion he said he thought the Court should have gone much further.

"I write separately to observe that our case law has drifted far from the original understanding o f the Commerce Clause," Thomas stated, before beginning a lengthy analysis o f what the term "commerce" meant in 1 7 8 9 , noting, for example, his view that "manufacturing and agriculture" were outside the eighteenth-century understanding o f that word. Accordingly, Thomas said, he thought any federal reg­ ulation o f manufacturing or agriculture was unconstitutional. To Thomas, the change in the nation over two centuries mattered less than honoring the intent o f the framers. "Even though the boundary between commerce and other matters may ignore 'economic reality' and thus seem arbitrary or artificial to some, we must nevertheless re­ spect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce." That no justice had expressed views like his for decades—and that his approach would in­ validate much o f the work o f the contemporary federal government— disturbed Thomas not at all. As he said, "Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reex­ amination o f the past 6 0 years."

Thomas was engaged in a lonely, often solo, effort to restore the Constitution in Exile, the world o f Supreme Court precedent before 1 9 3 7 . Even i f he was rarely joined by his fellow justices, his chambers at least remained a controversy-free zone. O f all the justices, Thomas imposed the tightest ideological screen in the hiring o f law clerks, deputizing a small group o f former clerks to determine the views of prospective hires. O t h e r justices hired clerks who generally shared their opinions; only Thomas imposed specific ideological litmus tests. Prospective clerks ran a three-stage gauntlet, which generally began with a first interview with J a c k Goldsmith, a law professor, then a round with either J o h n Yoo, also a professor, or Christopher Landau, a Washington lawyer and one o f Thomas's first clerks. (Both Goldsmith and Yoo went on to work for President George W. Bush and helped to set administration policy regarding executive au­ thority to conduct the war on terror.) Finally, the current group o f clerks would interrogate the applicant. They asked about ideol­ ogy—abortion, federalism, Commerce Clause, death penalty, search

T H E N I N E 101

and seizure—to make sure that the putative clerk shared Thomas's (and their own) extreme views. Only after these interviewers reached a consensus on the applicant's suitability did they permit an interview with Thomas, who generally limited himself to a low-key chat about the applicant's family and interests. Asked about his ideological ap­ proach to the hiring o f clerks at the National Center for Policy Analysis, a conservative think tank, Thomas said, "I won't hire clerks who have profound disagreements with me. It's like trying to train a pig. I t wastes your time and aggravates the pig." O f Thomas's first forty clerks on the Supreme Court, one was black.

Thomas's extreme views extended well beyond the Commerce Clause. Throughout the 1 9 9 0 s , Rehnquist, Kennedy, and (as ever) O'Connor tried to revitalize the doctrine o f states' rights, ruling that several federal laws impinged on aspects o f state sovereignty. These developments were sometimes called a "federalism revolution," but that now seems an exaggeration. T h e changes the Court imposed on federal-state relations were, on the whole, rather modest. For exam­ ple, the Court limited Congress's right to pass laws that gave citizens the opportunity to sue state officials; similarly, they interpreted fed­ eral statutes so that they did not give citizens the right to sue states. These were important, but hardly revolutionary, limitations on fed­ eral power, with little practical impact on the lives o f most people.

Thomas always joined these states' rights rulings but often wrote concurring opinions urging the Court to cut back even more on fed­ eral authority. He asserted, for example, that he thought Congress had no right to make a federal crime o f bribing state or local government officials—a kind o f case that local U . S . attorneys had been bringing for decades. In 1 9 9 7 , the Court struck down part o f the Brady B i l l , the federal gun control law that directed state officials to conduct background checks on prospective handgun purchasers. Thomas signed on to Scalia's majority opinion, o f course, but in a brief con­ currence suggested an even broader point, that all gun control was unconstitutional. H e wrote, "Marshaling an impressive array o f his­ torical evidence, a growing body o f scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right." Thomas's libertarian view o f the original intent o f the framers sometimes led him to broad definitions o f free­ dom of speech—the one area where he tended to join the Court's moderates—but his jurisprudence overall hewed predictably to a con­ sistent conservative line. To prepare his law clerks for their chambers'

102 Jeffrey Toobin

lonely crusade, Thomas required the new ones to watch the 1 9 4 9 movie version o f Ayn Rand's classic homage to individualism, The Fountainhead, which concerns an architect's struggle to maintain his integrity in a world o f conformity.

Rehnquist rarely assigned important majority opinions to Thomas, because his extreme views made it difficult for him to persuade a ma­ jority o f his colleagues to join him. In late 1 9 9 9 , the justices agreed to uphold a federal program that passed government funds to state and local agencies, which in turn lent educational equipment to pub­ lic, private, and religious schools. T h e Court agreed that the law did not violate the Establishment Clause, and Rehnquist assigned the case to Thomas, who couldn't even muster four other justices. Thus, Thomas's opinion began with the embarrassing opening (under the circumstances) that he "announced the judgment o f the Court," rather than the customary "delivered the opinion o f the Court." In her sep­ arate opinion explaining why she could not join Thomas, O'Connor said she rejected his attempt to approve the "diversion o f government aid to religious indoctrination."

Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many o f his assignments were unani­ mous opinions on minor subjects—"dogs," in the Court's parlance. W h e n asked which o f his opinions was his favorite, Thomas would usually cite a 1 9 9 6 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a "knuckle" between two cars. "It was a little case that didn't matter to anyone," Thomas said in a speech. "It's almost incon­ sequential. I t was a fun little opinion. I went back into the history o f trains." (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas's opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they c l i m b between two railcars in the process o f cou­ pling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most o f the time.)

Probably the greatest contrast between Thomas and his colleagues was that he fundamentally did not believe in stare decisis, the law o f precedent. I f a decision was wrong, Thomas thought it should be overturned, however long the case may have been on the books. As he wrote once, " W h e n faced with a clash o f constitutional principle and a line o f unreasoned cases wholly divorced from the text, history, and structure o f our founding document, we should not hesitate to resolve

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the tension in favor o f the Constitution's original meaning." All jus­ tices of the Supreme Court, from Brennan on the left to Scalia on the right, develop something close to reverence for the Court's prece­ dents; no one besides Thomas would have dismissed two hundred years o f stare decisis in such a cavalier way. At an appearance at a New York synagogue in 2 0 0 5 , Scalia was asked to compare his own judi­ cial philosophy with that o f Thomas. "I am an originalist," Scalia said, "but I am not a nut."

So Thomas was ideologically isolated, strategically marginal, and, in oral argument, embarrassingly silent. H e was also universally adored.

Fellow justices, law clerks, police officers, cafeteria workers, jani­ tors—all basked in Thomas's effusive good nature. His rolling basso laughter frequently pierced the silence o f the Court's hushed corridors. Unlike the rest o f his colleagues, Thomas learned the names o f all the new clerks every year, including those o f his ideological adversaries, and he frequently invited the young lawyers into his chambers to chat, often for two or three hours. One year Thomas became friendly with a Stevens clerk, a lesbian whose partner was a professional snow- boarder; Thomas liked the two o f them so much that for a while he kept a photograph o f the snowboarder on his desk. W h e n the wife o f one o f his former law clerks lay dying in the hospital, Thomas and his wife spent several nights comforting the couple through the ordeal.

Thomas didn't treat just law clerks this way. H e would meet law students at moot courts, or people at ball games and auto races, and invite them to visit him at the Supreme Court. W h e n they did, the conversations would also sometimes last into the evening. I f there was a football game on television (especially Thomas's beloved Dallas Cowboys), he would pass out cigars to anyone who wanted to watch with him. W h e n he joined the Court, Thomas played basketball with clerks in the Court's top-floor gym, the famous "highest court in the land." B u t within a year the justice injured his knee and rarely played again.

Although Thomas asked almost no questions o f the lawyers at oral argument, he wasn't silent on the bench. Thomas sat to Breyer's right, and the two o f them often whispered and joked to each other, barely muffling their frequent laughter. T h i n g s sometimes got so raucous between them that Kennedy, who sat on the other side o f Thomas,

104 Jeffrey Toobin

would lean forward, trying to get away from the noise. Breyer and Thomas passed notes, too, often mocking each other's positions in good-natured ways. "States' rights iiber allés," Breyer might write, and Thomas, in another case, would jot, "Always for the criminal, eh?" T h i s wasn't feigned fellowship. It was a portrait o f colleagues who genuinely cared for each other.

There was a new measure o f joy in Thomas's personal life as well in this period. In the midnineties, his son from his first marriage, J a m a l , went off to college at the Virginia Military Institute. (For this reason, Thomas recused himself in 1 9 9 6 when, in an especially satisfying mo­ ment for Ginsburg, she wrote the opinion holding that the state- funded school could no longer refuse to admit women.) T h e following year, Thomas's six-year-old grandnephew, Mark Martin J r . , came to live with him. Mark's father was in prison on cocaine trafficking charges, and his mother was struggling to raise four children on her own. Thomas was roughly the same age when his grandfather adopted him, saving him from similarly chaotic circumstances. New father­ hood, when he was close to fifty, invigorated Thomas and filled his home life with happiness.

It also changed Thomas's approach to transportation. T h e justice had a long-standing obsession with Corvettes, the great American sports cars, and he often drove one on the twenty-four-mile trip to the Court from his home in remote Fairfax Station, Virginia. B u t shortly after Mark Junior's arrival, Thomas purchased a custom-made forty- foot Prévost motor coach, with leather furniture, satellite television, and onboard galley—a "condo on wheels," as he once called it. Thomas adored the vehicle, which he called "the bus," and kept a photograph o f it by his desk, near the portraits o f Booker T. Washington, Frederick Douglass, and W i n s t o n Churchill. For vacations, even on many week­ ends, Thomas would pack up his wife and young Mark and simply take off. They would stay at campgrounds or parking lots near N A S C A R races. Often, the justice would take advantage o f W a l - Mart's policy (well known in the R V world) o f allowing such vehicles to remain overnight in their parking lots. In all these places, Thomas mixed easily with other "RVers," some o f whom would recognize him, many o f whom would not. In 2 0 0 4 , Thomas received the "Spirit o f America" award from the Recreation Vehicle Industry Association. "Being an RVer helps me do my job better," he said in his speech to the group. "The world I live in is very cloistered. T h e bulk o f my adult life has been spent in Washington, D . C . RVing allows me to get out and

T H E N I N E 105

see the real America. In R V campgrounds, you wave at everybody and they wave back."

Yet even in the friendly confines o f his chambers, Thomas carefully tended the grudges held since his confirmation hearings. For years, he kept a list in his desk o f the roll-call vote in his 5 2 ^ 8 confirmation. B u t his targets weren't only the senators who voted against him. "When I left Georgia over twenty-five years ago, a familiar source o f the unkind treatment and incivility were just bigots," he said at a speech in Macon in 1 9 9 3 . "Today, ironically, a new brand o f stereo­ types and ad hominem assaults are surfacing across the nation's col­ lege campuses, in the national media, in Hollywood, and among the involuntarily ordained 'cultural elite.' W h o are the target? Those who dare to question current social and cultural g i m m i c k s , those who in­ sist that we embrace the values that have worked and reject those that have failed us, those who dare to disagree with the latest ideological fad." This would become the theme o f Thomas's speeches over the fol­ lowing decade—his own courageous fight against the "elites" who were out to get him. Friends and associates would often claim that Thomas's rage had mellowed, but that seems unlikely. In 2 0 0 7 he told BusinessWeek, in a rare interview, that he thought the news media were "universally untrustworthy because they have their own notions o f what I should think or I should do."

Thomas never identified his enemies by name—the "smart-aleck commentators and self-professed know-it-alls," as he once described them—but it was usually clear whom he meant. T h e list began, o f course, with the senators who opposed his confirmation. Thomas also regarded most o f the press as part o f the elite, and a friend quoted him as saying the happiest day o f his life was when he canceled his sub­ scription to the Washington Post. Likewise, Thomas detested Yale Law School, his alma mater, and he had a "Yale Sucks" bumper sticker on the mantel o f his chambers for a time. H e believed that he was treated paternalistically while he was on campus and that the school aban­ doned him (in favor o f another Yale law graduate, Anita H i l l ) during his confirmation hearings. Sneering references to Yale were a standard part o f his speeches. As Thomas put it in a talk for Headway maga­ zine, a now-defunct conservative publication, in 1 9 9 8 , "I couldn't get a job out o f Yale Law School. That's how much good it did me. I think I'll send the degree back, while I'm at it." Six years later, as the com­ mencement speaker at Ave Maria School o f Law, a new institution grounded in Catholic legal principles, he accepted an honorary degree

106 Jeffrey Toobin

with the quip, "As the rift from my alma mater remains, I will need a degree from a law school." Thomas frequently did moot courts and commencement addresses at small law schools and Catholic and evan­ gelical colleges, but he never returned to Yale. For speaking engage­ ments, he described his rule as "I don't do Ivies."

I t was possible to interpret Thomas's refusal to ask questions at oral argument as a sign o f simmering resentment. Even as recently as the 1 9 8 0 s , such silence m i g h t have drawn little attention because several justices o f that era—among them Brennan, Marshall, and Blackmun—asked relatively few questions. B u t the Court in the 1 9 9 0 s featured eight active interrogators, making the contrast all the greater. In his public appearances, Thomas was often asked about his reluctance to participate. His answers varied. Sometimes he said he asked questions only i f other justices had not covered the subject o f interest to him. O t h e r times, he said he gained more from listening than he did by speaking. In private, he would sometimes express frus­ tration with his colleagues for interrupting too much and showing off. In 2 0 0 0 , Thomas explained his silence to a student group by say­ ing that as a youth he was self-conscious about speaking Gullah, a re­ gional dialect o f coastal Georgia, and so he "developed the habit o f listening." T h i s last explanation was especially peculiar. It is possible that Thomas spoke some Gullah when he lived in Pin Point, Georgia. B u t from the age o f six, Thomas lived with his English-speaking grandfather in Savannah, where Gullah was rarely spoken, and at­ tended rigorous parochial schools, where he spoke only English and received excellent grades.

One reason Thomas maintained his silence may simply be because the media called so much attention to it—and he wasn't going to give his critics the satisfaction o f seeing him change his ways. Among friends, he would mock the way the liberal press described justices who moved to the left as "evolving" and "growing" on the Court. "I ain't evolvin'," he would say.

In public, Thomas would discuss over and over again the way anger has shaped his life. A t a commencement speech in 1 9 9 6 at Liberty University, which was founded by Rev. J e r r y Falwell, Thomas de­ parted from the usual pablum offered on such occasions to give an ex­ traordinary self-portrait. H e recalled his own graduation from college, at Holy Cross, twenty-five years earlier. H e was something close to a radical in those days, an overall-wearing Black Power devotee with in­ choate dreams o f changing the world. "I thought I knew all the an-

T H E N I N E 107

swers," he said. "It was all so clear. I was just relieved to have com­ pleted my college education. I had often thought o f giving up and g o ­ ing home. To my core, I was a swirling combination o f frustration, o f anger, o f disappointment, o f anxiety and perhaps there was a g l i m m e r o f hope, but it was well hidden. Mostly I was just confused. I had alienated my grandfather, and the dreams o f my youth to become a Catholic priest had evaporated. It was indeed a dark night o f my soul." (In a lighter vein, he would sometimes recall that his Afrocentric worldview in those days inspired the name o f his son. " W e called him J a m a l , so you can see where my head was in those days.")

Always, when recounting the pain in his life, Thomas would return to the subject o f his confirmation hearings: "And it is only by God's grace and on his mighty shoulders that my wife and I endured the un­ pleasantness o f my confirmation. In the end, our strategy was to rely on him, to endure the agony and then transcend the aftermath o f bit­ terness, and we as a team, an inseparable team, are so grateful to you who lifted us up in prayer."

Thomas appeared in public about as often as the other justices, but he picked his audiences with greater care. Only once in his first decade on the Court did he venture away from safe, sympathetic crowds where he could be guaranteed a warm reception. O n that occasion, he decided to take on the most incendiary subject o f all—race.

Thomas's views on the subject were clear. Like Scalia and Rehnquist, he believed in a "color-blind Constitution," that is, that the Constitution forbade any consideration o f race. Most notably, o f course, he thought any kind o f affirmative action or preferential treatment for blacks should be banned under the Equal Protection Clause. H e was a proud heir to the civil rights tradition o f Booker T. Washington, which focused less on government assistance to blacks than on self-help and up-by-the-bootstraps individual initiative. To the extent Thomas discussed discrimination at all, it was usually in the context o f the vanished South o f his youth—or o f contemporary bias against Thomas himself. H e had an understandable sensitivity to the common (and false) notion that he functioned as Scalia's pawn on the Court. This idea was absurd not least because the two justices' voting records were different, with Thomas well to the right o f his se­ nior colleague. W h a t was notable, though, was that Thomas attrib-

108 Jeffrey Toobin

uted this canard to racial, not political, bias. As he put it in a speech in Louisville, "Because I'm black, it is said that J u s t i c e Scalia does my work for me. I understand how that works. B u t I rarely see him, so he must have a chip in my brain that tells me what to do."

To say that Thomas opposed affirmative action is not to say that he fought all efforts to help poor people, especially blacks. H e thought the traditional civil rights movement bred a culture o f victimization in blacks and paternalism in whites. He believed that economics, not race, was at the root o f poor people's problems, and he opened his chambers to those who shared these views. He would read the names o f striving black youngsters in the news and invite them in for pep talks. His friend Tony Welters, an African American health care en­ trepreneur, started a program at New York University Law School that awarded scholarships—without regard to race—to "outstanding J . D . students who are among the first in their immediate family to pursue a graduate degree." Thomas liked the program so much that he allowed the school to conduct the final interviews each year at the Supreme Court.

As Thomas himself would acknowledge privately, he benefited from affirmative action at every step o f his life—in gaining admission to Holy Cross and Yale, in being hired for civil rights jobs in the Reagan administration, and in winning appointment to the Court. B u t he thought that, ultimately, these kinds o f efforts to help people were self-defeating. (He'd always advise young black lawyers to focus on subjects like tax or property law and escape the ghetto o f civil rights specialization.) Thomas thought integration was at best a mixed blessing for blacks; he loved the all-black world o f the segre­ gated Savannah o f his childhood and thought that its replacement did African Americans no favors.

Indeed, Thomas believed virtually all government efforts to help black people wound up backfiring. H e liked to point out that the handful o f black farmers left in South Carolina were often blocked from selling their land for the best prices by environmental regula­ tions. His favorite quote from his idol Frederick Douglass summed up his view: "The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. D o nothing with us! . . . I f the Negro cannot stand on his own legs, let him fall."

O n c e , and only once, Thomas tried out this argument on a skep­ tical audience. In 1 9 9 8 , he accepted an invitation to speak at the

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annual meeting o f the National Bar Association, the largest organiza­ tion o f black lawyers in the country. A month before his appearance, a group o f board members o f the N B A wrote to Thomas purporting to withdraw the invitation, but he decided to come anyway. T h e ho­ tel ballroom was tense when Thomas took the podium in front o f about two thousand lawyers and judges, many o f whom disagreed with him passionately on issues o f civil rights. T h a t the meeting took place in Memphis in the thirtieth-anniversary year o f the assassination o f Martin Luther K i n g J r . gave the occasion even greater emotional weight.

Thomas began by recalling King's death and his sense that "the whole world had gone mad." Since that time, though, King's supposed heirs had decided that the "racial divide was a permanent state. . . . Some go so far as to all but define each o f us by our race and establish the range o f our thinking and our opinions not by our deeds but by our color." In other words, to be black was to share the orthodoxy o f the civil rights movement. "I see this in much the same way I saw our de­ nial o f rights—as nothing short o f a denial o f our humanity."

Thomas went on to describe how his despair grew when he was a law student, filling him with "anger, resentment and rage." In time, though, he came to the revelation that "the individual approach, not the group approach, is the better, more acceptable, more supportable and less dangerous one. T h i s approach is also consistent with the un­ derlying principles o f the country." As a black man, he was entitled to these views. "I knew who I was and needed no g i m m i c k s to affirm my identity. Nor, m i g h t I add, do I need anyone telling me who I am today. This is especially true o f the psycho-silliness about forgetting my roots or self-hatred."

Thomas concluded mournfully. "I have come here today not in anger or to anger, though my mere presence has been sufficient, obvi­ ously, to anger some. N o r have I come to defend my views, but rather to assert my right to think for myself, to refuse to have my ideas as­ signed to me as though I was an intellectual slave because I'm black. I come to state that I'm a man, free to think for myself and do as I please. I've come to assert that I am a judge and I will not be con­ signed the unquestioned opinions o f others."

Thomas received a polite reception from the audience, but by this point he and his adversaries were largely talking past one another. Rather than engage his critics, Thomas chose to attack straw men. N o one quarreled with Thomas's right to his own views; no one said black

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people had to speak with one voice; no one asserted that support for causes like affirmative action was obligatory for Thomas or anyone else; Thomas's critics, no less than he, sought "to continue diligently to search for lasting solutions." I t was the substance o f Thomas's views, not his right to hold them, that his critics attacked. Thomas's speech was a sustained plea for his own victimhood—in support of his antivictimhood philosophy. In any event, the speech turned out to be a one-time-only attempt to talk to his ideological adversaries in public. H e quickly resumed circulating in more familiar, and com­ fortable, territory.

On May 2 8 , 1 9 9 4 , Clarence and Ginni Thomas hosted, and he per­ formed the ceremony for, Rush Limbaugh's third marriage, this one to Marta Fitzgerald, an aerobics instructor whom the radio host met on the Internet. (The couple soon divorced.) Thomas's speaking engagements in Washington were almost exclusively in the world o f conservative think tanks and lobbying operations. His first television appearance af­ ter his confirmation took place on National Empowerment Television, an offshoot o f the Free Congress Foundation, which was run by Thomas's old friend Paul Weyrich, a founding father o f the New Right. Thomas visited Weyrich's office several times and spoke at the group's fifteenth anniversary in 1 9 9 3 . Thomas spoke at the Heritage Foundation, another prominent conservative group, and he gave the American Enterprise Institute's Francis Boyer Lecture at the annual black-tie affair that is known around Washington as "the conservative prom."

There, surrounded by many o f the most powerful people in the country, Thomas paid tribute to himself for having the courage to agree with them. T h e theme o f his speech was "the question of courage in American life," as reflected in his career on the bench. "In my humble opinion," he said, "those who come to engage in debates o f consequence, and who challenge accepted wisdom, should expect to be treated badly. Nonetheless, they must stand undaunted. T h a t is re­ quired. And that should be expected. For it is bravery that is required to secure freedom." Rhetorically, Thomas asked whether it was "worth it" to be as courageous as he had been. " I f one wants to be pop­ ular, it is counterproductive to disagree with the majority. I f one just wants to tread water until the next vacation, it isn't worth the agony. I f one just wants to muddle through, it is not worth it. In my office,

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a little sign reads: 'To avoid criticism, say nothing, do nothing, be nothing.' " Never, on these occasions, did Thomas acknowledge that he was not some lonely voice in the wilderness but a Supreme Court justice whose votes, more often than not, were in the majority.

Thomas's status as a conservative hero had tangible, as well as psy­ chic, rewards. Before Thomas became a justice, he was never wealthy; he was already on the Supreme Court when he finished paying off all his student loans. B u t Thomas made far more financially out o f his status as a justice, and a folk hero, than any o f his colleagues. H e re­ ceived a $ 1 . 5 million book advance from the publishing company owned by Rupert Murdoch, the media entrepreneur who has been a supporter o f conservative causes. Rehnquist and Breyer also wrote books, but neither received anything like this kind o f money. In tout­ ing the book to potential publishers, Thomas told editors that Limbaugh planned to read the book aloud on the air. Thomas said that he would not appear on television morning news shows, fearing attacks from potential interviewers, but he would agree to be inter­ viewed in the more sympathetic environment o f Fox News. (More than three years after the contract was announced, and $ 5 0 0 , 0 0 0 paid to him, Thomas had still not delivered a manuscript.)

Thomas received even more direct financial benefits from his job. According to the financial disclosure statements the justices are re­ quired to submit, Thomas received $ 4 2 , 2 0 0 in gifts over a six-year period. This was more than seven times as much as any o f his col­ leagues, whose gifts tended to consist o f crystal figurines and plaques. (Most o f the justices accepted all-expenses-paid trips to destinations around the world, where they lectured at universities and met with judges; the only exception was Souter, whose gift and travel disclosure forms, year after year, said: "None.") Most o f Thomas's gifts came from conservatives, who had come to admire his work on the bench. For example, Harlan Crow, a Texas businessman, gave Thomas a B i b l e once owned by Frederick Douglass that was valued at $ 1 9 , 0 0 0 . (Crow also donated $ 1 7 5 , 0 0 0 for a new Clarence Thomas wing at the local library in Thomas's hometown o f Pin Point, Georgia.) Another exec­ utive gave Thomas $ 5 , 0 0 0 to help pay for his grandnephew's educa­ tion. A Nebraska businessman gave Thomas tires worth $ 1 , 2 0 0 . Under federal law, the justices can accept unlimited gifts from indi­ viduals who do not have cases before the Court, as long as the gifts are disclosed.

Thomas's close ties to the conservative political and business

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worlds were reinforced by his wife, Virginia, who was already a well- known lobbyist for the U . S . Chamber o f Commerce when they mar­ ried in 1 9 8 7 , but who came into her own in the 1 9 9 0 s as a senior aide to Richard Armey, the combative Texas Republican who served as House majority leader. In that role, during the 1 9 9 6 campaign, she sent a memo to senior Republicans in the House asking for damaging information about President Clinton "as soon as possible." Specifically, she sought any information that would expose "waste, fraud and abuse," the "influence o f Washington labor bosses," or "examples o f dishonesty." Later, she became director o f executive branch relations at the Heritage Foundation.

T h e best reflection o f Thomas's unique status in Washington, and on the Court, may have come at an unusual event in December 1 9 9 9 . Most o f the justices attended awards dinners at places like universi­ ties and bar associations, but it seems likely that none o f his col­ leagues ever attended an event like this one.

" W e are here this evening to acknowledge the remarkable work o f some o f the more egregious members o f the liberal press corps," said M . Stanton Evans to open the festivities at the annual dinner o f the Media Research Center, a self-styled conservative watchdog organiza­ tion, at the Monarch Hotel in Washington. T h e format for the evening was a mock awards banquet "honoring" what the hosts be­ lieved were examples o f biased reporting. A procession o f conservative luminaries "nominated" journalists for the prizes, and other guests "accepted" the humorously named awards, like the "Presidential Knee Pad Award for Best Journalistic Lewinsky." T h e tone of the evening was raucous and cheerful. "There is not a vast right-wing conspiracy," said J o h n Fund, o f the Wall Street Journal's editorial page. "There's a narrowly focused one—and it's in this room!"

After speeches by Michael Reagan, the president's son and a talk show host, and Oliver North, also at the time a figure in right-wing radio, the climax o f the evening came with the presentation o f the "I'm-a-Compassionate-Liberal-but-I-Wish-You-Were-Dead Award for Media Hatred o f Conservatives." T h i s award was presented to an ob­ scure columnist named J u l i a n n e Malveaux, for saying in a cable tele­ vision interview about Thomas, "I hope his wife feeds him lots o f eggs and butter and he dies early like a lot o f black men do."

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Thomas had been laughing so hard early in the evening that Evans, the M C , said to him, "Justice Thomas, you are a great audience, too." W h e n Thomas stepped up to the microphone to "accept" the award for Malveaux, he received a standing ovation.

"Thank you," the justice said, still laughing. "Normally, we are busy. This is a sitting week, so we have cases to decide tomorrow morning at 9 : 3 0 , and I usually spend this night working. B u t we re­ alized that this was such an important occasion that we decided it was time to put aside our personal obligations, the Constitution, the work o f the Court, our little nephew, to attend. . . . I am pleased to accept this award on behalf o f Suzanne Malveaux." Thomas had mixed up Suzanne, a C N N correspondent, with her distant cousin Julianne; both are African American women.

As always, the confirmation hearings were never far from Thomas's mind. "As I was listening to those awards, I was hoping that N i n a Totenberg would also share in it," he said. Totenberg, the N P R legal affairs correspondent, had played an important role in bringing Anita Hill's story to the public. "I have finally had the opportunity to have my surgeon remove her many stilettos from my back, and I'd like to return them."

B u t Thomas had a larger point to make. It wasn't speeches like this one but his work on the Court that would be the best revenge against his enemies, and he planned on serving for a long time to come. To another rousing ovation, Thomas concluded that anyone hoping for his demise, including Malveaux, should have a great deal o f patience. He said, smiling, "My doctor makes it clear that my blood pressure is fine, my cholesterol is normal, and I am in wonderful health."

9

C A R D S T O T H E LEFT

The trajectory o f the Lewinsky scandal in the Supreme Court reflected its course in the nation at large. T h e initial disclo­sures about the president's behavior inspired widespread shock and outrage, and the Court took a harsh initial tack against Clinton. B u t as the president's enemies ratcheted up the controversy into a constitutional crisis and then initiated the first impeachment proceeding in a generation, the sympathies o f the public shifted. So did the Court's. As Clinton rode a wave o f popularity into the end o f his term, the Court turned sharply in his direction. T h i s happened, in part, because the majority o f the Court in these years always tried to remain close to the center o f popular opinion. B u t there was another reason the Court moved left in the late nineties, and it had to do with the changing role o f C h i e f J u s t i c e Rehnquist.

T h e c h i e f was seventy-three years old in 1 9 9 8 , when the Lewinsky story broke, and he didn't have the energy he once did. His back had never fully healed from his long-ago gardening mishap, and his limp had become a permanent shuffle. B u t it was Rehnquist's intellectual energy that had faded more than his physical strength. He had been a justice for more than a quarter century and chief justice for more than a decade. Rehnquist knew how everyone was going to vote, most o f the time. H e wasn't going to change anyone's mind—not in conference and not in written opinions. So, subtly but unmistakably, Rehnquist stopped trying. H e became, in these years, primarily an administrator, c o m m i t t e d more to moving cases efficiently through the pipeline than to shaping their result at the finish. H e had reduced the job to its es­ sentials: a morning meeting with his law clerks to talk about the progress o f opinions, a meeting with his administrative assistant to ad-

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dress issues affecting the federal judiciary, lunch at his desk, review o f paperwork after lunch, and limousine home by 4 : 0 0 p.m.

Once a month, there was poker. T h a t didn't change, although, thanks to the Lewinsky scandal, the players in his regular game did.

B o b Bennett and B i l l Rehnquist were still raising young children when they met on the grounds o f the McLean Swim and Tennis Club in 1 9 7 2 . Nixon had just appointed Rehnquist to the Supreme Court, and Bennett had recently left the United States attorney's office and was be­ ginning a career in private law practice that would make him one o f the best-known lawyers in the country. They became friendly, and Bennett invited Rehnquist to join his monthly poker game. For the next thirty- three years, the rest o f his life, Rehnquist rarely missed one.

T h e core group in the poker game remained remarkably stable over the years, though some players did come and go. Besides Bennett and Rehnquist, they included Walter Berns, a professor o f constitutional law at Georgetown; Martin Feinstein, the director o f the Washington National Opera; Tom Whitehead, a Washington businessman; and eventually N i n o Scalia. Other players were Bob's brother B i l l Bennett, the former drug czar and conservative activist, and local fed­ eral judges David Sentelle, Thomas Hogan, and Royce Lamberth. T h e game was dealer's choice, usually seven-card high-low, five-card draw, or a Scalia favorite known as choose-'em. After each hand, the cards were "passed to the left"—a phrase that often caused amusement be­ cause B o b Bennett was generally the only Democrat at the table. T h e existence o f the game was no secret, but the members avoided atten­ tion. After the Washington lawyer Leonard Garment talked about the game to a reporter, he was no longer invited to play.

T h e location o f the poker game rotated among the homes o f the players, and Rehnquist always took a turn hosting at his modest town house in suburban Arlington, Virginia. T h e game unfolded according to a precise ritual. From 7 : 0 0 to 7 : 4 5 p.m., the players would arrive and eat sandwiches provided by the host. T h e game would last from 8 : 0 0 to 1 1 : 0 0 . Small talk was kept to a m i n i m u m . (Robert B o r k joined the game briefly, but he quit because no one wanted to talk about anything except poker.) For many years, everyone used only first names, but after Rehnquist became c h i e f justice in 1 9 8 6 , the other players started calling him "Chief." They also deferred to him

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to resolve any disputes that came up during the game. T h e stakes were low but not penny-ante; a player could win or lose about a hun­ dred dollars in a night. ( W h e n Rehnquist was nominated to be chief justice, Bennett discreetly assigned an associate at his firm to research whether the game ran afoul o f any gambling ordinances in the District o f Columbia, Virginia, or Maryland. T h e search revealed no problems, and no one ever raised the issue anyway. T h i s was fortunate for Rehnquist, because he also ran the Court's betting pools on N C A A basketball, N F L football, and the Kentucky Derby.)

In May 1 9 9 4 , three months after Paula J o n e s made her first accusa­ tions o f improper conduct by Clinton, the president hired Bennett to defend him in the sexual harassment lawsuit she had just filed. T h e players in the poker game generally avoided the subject o f the Supreme Court, but Bennett thought the matter was so high-profile— and so likely to wind up in front o f the justices—that he decided to withdraw from the game for the duration o f his representation o f the president. Scalia in particular tried to talk Bennett out o f leaving, but B e n n e t t thought the caution was prudent. H e was correct, as on January 1 3 , 1 9 9 7 , he found himself standing before the nine justices to argue the case o f Clinton v. Jones.

A t first the Jones case united the justices—against Clinton. The case gave most o f them an outlet for their long-standing personal dis­ taste for the president. Shortly after Clinton was first elected, a clerk told Rehnquist that the new president was thinking of nominating his wife as attorney general. "They say Caligula appointed his horse counsel o f R o m e , " the c h i e f replied dryly. O'Connor was almost phys­ ically repelled by the sordid nature o f Jones's allegations against Clinton; his behavior, as alleged, defined her all-purpose expression o f distaste: unattractive. Stevens and Souter likewise found the matter unseemly and would rather have dealt with almost any other subject. Scalia and Thomas were all but openly hostile to Clinton and his agenda. And Clinton's own nominees, Ginsburg and Breyer, had to avoid looking like they were favoring the man who appointed them.

There may have been a high principle at stake in Clinton v. Jones, but the facts o f the case resembled a trailer-park sitcom more than a Supreme Court case. In brief, J o n e s alleged that on May 8, 1 9 9 1 , she was sitting at the registration desk for Governor Clinton's Quality Management conference at the Excelsior Hotel in Little Rock. Clinton saw J o n e s , then named Paula Corbin, and asked one o f his state troopers to invite her up to a room he was using in the hotel.

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After Corbin went to the room, she asserted, Clinton said, "I love your curves," exposed himself, and asked her to "kiss it." She fled in hor­ ror. (For his part, Clinton always said he had no memory o f meeting the young woman and denied any misconduct.) J o n e s sued for sexual harassment, claiming that her superiors in the Arkansas Industrial Development Commission, where she was a secretary, retaliated against her for rebuffing Clinton's advance.

T h e legal issue before the justices was Bennett's argument that the magnitude o f Clinton's duties as president entitled him to a stay o f all proceedings in the Jones case, including discovery and depositions, un­ til he left office. Or, as Bennett told the justices, "The President o f the United States should not be subject to litigation, either at trial or in discovery. Unless there is some compelling necessity, he should not be taken away from his constitutional duties."

At oral argument, the justices were all over Bennett. Rehnquist said the case had nothing to do with Clinton's "official powers as pres­ ident." Ginsburg made the same point, that the subject o f the lawsuit was "conduct unrelated to his office." Souter said he thought that, at a minimum, discovery unrelated to the presidency should proceed.

Stevens asked, "How long do you think it will take to try this case?"

"It's impossible to say," B e n n e t t answered, more prophetically than he knew. "I can tell you the president has spent, personally spent, a substantial amount o f time on this case already. T h e very nature o f this case is so personal that it would require his heavy involvement."

Scalia usually embraced expansive claims o f executive power, but not this time. There was no way, he asserted, that Clinton was so busy. "We see presidents riding horseback, chopping firewood, fishing for stick fish—"

T h e audience chuckled. "—playing g o l f and so forth and so on. W h y can't we leave it to

the point where, i f and when a court tells a president to be there or he's going to lose his case, and i f and when a president has the intes­ tinal fortitude to say, I am absolutely too busy—so that he'll never be seen playing g o l f for the rest o f his administration—if and when that happens, we can . . . we can resolve the problem."

For Clinton, the timing o f the argument couldn't have been worse. After a desultory campaign by B o b Dole, the Republican nominee, Clinton had just won a solid but hardly overwhelming reelection. In the final days o f the campaign, a putative scandal regarding Clinton's

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fund-raising practices had preempted any postelection honeymoon Clinton m i g h t have enjoyed. In January 1 9 9 7 , the Jones case looked like a convenient vehicle for the justices to take Clinton down a peg, but the controversy was not yet a major threat to his presidency and a constitutional crisis for the nation. As for Clinton himself, he nursed a measure o f paranoia about Rehnquist and his role in the Jones case. T h e swearing-in at his second inauguration took place just seven days after the oral argument in Clinton v. Jones. Clinton told friends that the c h i e f justice shook his hand and said, "Good luck—you'll need it." T h e president took the gesture as vaguely menacing.

A veiled threat hardly seemed like Rehnquist's style, but it was true that the Court at that moment was preparing to demolish Clinton's legal position in the case. As usual for the Rehnquist Court, the tenor o f the oral argument turned out to be indicative o f the re­ sult. O n May 2 7 , 1 9 9 7 , the Court ruled unanimously that Clinton could not postpone the lawsuit until he left office. Stevens's opinion for the Court in Clinton v. Jones reflected the commendable principle that no man should be above the law, but it also showed a stunning naivete about contemporary law and politics. Stevens dismissed Clinton's concerns that the Jones case would represent much o f a bur­ den in the conduct o f his presidency. "It appears to us highly un­ likely," Stevens wrote in an epically incorrect prediction, "to occupy any substantial amount o f {Clinton's} time."

As a result o f the Supreme Court's ruling, seven months later, on January 1 7 , 1 9 9 8 , Clinton was forced to answer the questions o f Jones's attorneys at a sworn deposition that took place in Bennett's of­ fice, a few blocks from the W h i t e House. T h e Court was usually pretty savvy about how its decisions would play out in the real world. B u t Stevens, who was nearing his eightieth birthday cloistered from the hubbub o f life in the age o f cable news, had not anticipated that Jones's lawsuit would turn into a magnet for the president's political enemies—a result that may have pleased some o f the other justices. S t i l l , Clinton himself made matters immeasurably worse for himself by lying in his deposition, saying, among other things, that he could not remember whether he was ever alone in the W h i t e House with Monica Lewinsky.

T h e events resulting from the Court's decision in Clinton v. Jones be-

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came landmarks in American history. W h i l e Clinton was facing Jones's lawyers in January 1 9 9 8 , Kenneth Starr was expanding his in­ vestigation o f the Whitewater land deal to include possible miscon­ duct by Clinton in the J o n e s lawsuit. O n August 1 7 , as part o f Starr's probe, Clinton was forced to give grand jury testimony at the W h i t e House. Four months later, on December 1 9 , 1 9 9 8 , Clinton was im­ peached by the House o f Representatives for perjury and obstruction o f justice.

T h e vote in the House meant that, for the first time in more than a century, there would be a presidential impeachment trial in the Senate, and under the Constitution the chief justice was obligated to preside. As it happened, Rehnquist may have been the best-qualified person in America for the job. Rehnquist used his free summers to produce a series o f bland but readable texts, including Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew

Johnson, which was published in 1 9 9 2 . Trent Lott, the Mississippi Republican who was then the majority

leader o f the Senate, decided to choreograph Clinton's trial to match, as closely as possible, the proceedings against the first President Johnson, in 1 8 6 8 . Rehnquist was a stickler for tradition, too, and he enjoyed reviving those musty rituals. Among these traditions was one that was especially painful for the senators. Under the customs o f im­ peachment trials, all one hundred senators had to watch the entire proceedings in silence from their seats in the Senate chamber; in or­ dinary circumstances, senators generally visit the floor to vote or speak and then disappear.

As it turned out, Rehnquist had little to do. T h e Senate heard from no live witnesses, and the "trial" consisted almost entirely o f state­ ments by the House "managers"—the members o f the Judiciary Committee who served as prosecutors—and Clinton's defense lawyers. Like any other politically savvy observer, Rehnquist could see that there were never anywhere near two-thirds o f the Senate prepared to remove Clinton from office, and he wisely chose to stand back and let the trial grind to its preordained conclusion. T h e dreary proceed­ ings lasted five weeks.

In all that time, Rehnquist made only a single substantive ruling. Throughout the managers' opening statements, they referred to the senators as "jurors." Democrats wanted to emphasize that the Constitution called on the senators to make a broader, political assess­ ment about the propriety o f removing the president, not simply the

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narrow judgment expected o f jurors in a criminal case. After several statements from the prosecutors, Senator Tom Harkin o f Iowa rose from his chair and said, "Mr. C h i e f J u s t i c e , I object to the use and the continued use o f the word 'jurors' when referring to the Senate sitting as triers in the trial o f the impeachment o f the president o f the United States."

In his phlegmatic way, Rehnquist said he saw Harkin's point. "The chair is o f the view that the objection o f the senator from Iowa is well taken," he said. "Therefore, counsel should refrain from referring to the senators as jurors."

Harkin was delighted. Moments later, he whispered to Senator Daniel Patrick Moynihan o f N e w York, who was seated at the next desk, "I just won my first Supreme Court case!"

At first, the trial generated a flurry o f excitement at the Court, and there was a waiting list for the few seats allotted to the justices and their staff. Soon enough, though, the seats went begging. Rehnquist told anyone who asked that he found the experience boring. Still, there was no denying the sense o f history in the Senate chamber on February 1 2 , 1 9 9 9 , when the trial came to an end. For the first time in the trial, there was a nervous catch in Rehnquist's voice when he said the words, "Is the respondent, W i l l i a m Jefferson Clinton, guilty or not guilty?"

T h e outcome had never been in doubt. Impeachment supporters won forty-five votes for the first count and fifty for the second, both well short o f the sixty-seven they needed. (Arlen Specter, the crankily independent Republican from Pennsylvania, chose to vote the old Scottish verdict o f "Not proven," which was recorded as a no.)

W i t h the senators seated solemnly before him, the chief justice an­ nounced, "It is, therefore, ordered and adjudged that the said W i l l i a m Jefferson Clinton be, and he is hereby, acquitted o f the charges. . . . "

Later, Rehnquist would sum up his performance in Clinton's im­ peachment trial with an apt line from one o f his favorite Gilbert and Sullivan operettas, lolanthe: "I did nothing in particular, and I did it very well."

lolanthe also figured in a change in Rehnquist's aesthetics. A few years before the impeachment trial, Rehnquist showed up for an argument at the Court in a new robe, one with four gold stripes on each sleeve.

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Evidently, he was copying the costume o f the Lord Chancellor from a local production o f the operetta. Since coming to the Court, Rehnquist had toned down the wardrobe that had so horrified Richard Nixon, but he had never before shown much interest in his appearance. "We thought it was a joke," O'Connor said o f the new robe. The stripes on the robe may have been a bit o f whimsy, but his colleagues also knew better than to copy them. T h e most casual jus­ tice had become a chief who zealously guarded his perquisites. Occasionally, a hapless advocate would make the mistake o f address­ ing him as "Justice Rehnquist"—and he would snap, "That's C h i e f Justice!"

B y this point, Rehnquist was devoting more o f his energy to the mechanics o f the Court—like the need to renovate the Court's deteri­ orating building—than to the substance o f its decisions. H e was ob­ sessed with getting through the Court's business. One Sunday around the time o f Clinton v. Jones, Washington was hit by a freak snowstorm that deposited twenty-one inches o f snow. T h e city deals notoriously badly with even small amounts o f snow, so the federal government was shut down the following day. B u t Rehnquist thought the Court should never concede to the elements. H e ordered the Monday argu­ ments to proceed and directed the Court staff to send jeeps to the homes o f the justices.

T h e experience turned out to be a kind o f Rorschach test for the justices' characters. Carter Phillips, a prominent advocate before the Court who had to argue on Monday morning, lived near Scalia in the Virginia suburbs and asked i f he could catch a lift with him. Scalia agreed and said Kennedy would be coming along as well. T h e roads were impassable, however, and Scalia had to walk almost a half mile in waist-deep snow just to get to the car. Sweating profusely, wearing, a Russian hat and a short-sleeved shirt under his coat, Scalia was livid.

"This is insane," he said. " W h a t is the chief thinking? We're risk­ ing our lives out here."

B u t the justices all respected Rehnquist so much (while also fear­ ing him a little) that no one wanted to be late. Worried that time was growing short, Scalia said to the driver, " B y the power invested in me, I authorize you to run these lights!"

"Nino," Kennedy cautioned, "we don't have the power to run a red light." They made it at 9 : 3 0 , with a half hour to spare. "I even have time to read your brief now, Phillips," Scalia cracked.

Another court car went to fetch Breyer and Ginsburg, who lived

122 Jeffrey Toobin

near each other—Breyer in Georgetown and Ginsburg at the tony Watergate complex. Elegant as always, i f also slightly disengaged from the real world, Ginsburg chose to wear a straight skirt and high heels. Because o f the snow on the ground and Ginsburg's outfit, the driver, who usually worked in the clerk's office, had to lift the tiny justice into the air and deposit her in the car. (Later, Ginsburg wrote the fellow a letter o f recommendation for law school.) After they ar­ rived, the industrious Breyer directed traffic in the Court's basement garage.

Souter, the self-sufficient New Englander, who had lived with snow for most o f his life, rejected all offers o f help. He said he would drive himself in his own car—which promptly stalled in a snowbank. Finally rescued by Supreme Court police officers, Souter wound up being the only one late for Court.

Rehnquist made no reference to the weather, and the argument went off as planned. (It happened to be the case about the injured rail­ road employee, which Phillips won unanimously, with Thomas writ­ ing his favorite opinion.)

T h e biggest change in the chief, though, was in the opinions he produced. As a junior justice, back in the 1 9 7 0 s , he became known for his long and discursive opinions, where he spelled out his conser­ vative philosophy, often in dissent. B u t his opinions shrank when he became chief justice. In part, Rehnquist was just reflecting his shift­ ing role—from outsider to institutional embodiment o f the Court. B u t fatigue was a factor, too. T h e chief ran his chambers like an as­ sembly line, with his clerks expected to produce first drafts in ten days or less. Only i f they were overburdened would he write a first draft himself. Rehnquist was a brutal editor, stripping his clerks' work down to the essentials, taking out what he called, with some contempt, "the reasoning."

And so in the fall o f 1 9 9 9 , the Court reached another turning point. Rehnquist's age started to limit his effectiveness. More impor­ tant, the country at large had soured on the Gingrich Republicans who had taken over the House in 1 9 9 4 and then launched the im­ peachment drama o f 1 9 9 8 . Clinton was more popular than ever, and the nation, basking in unprecedented prosperity, had no discernable appetite for a dramatic lurch to the right.

In short, in October 1 9 9 9 the "Rehnquist revolution," which was never terribly revolutionary in the first place, ground to a halt. On some o f the issues that meant the most to him—states' rights,

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church-state relations, criminal law, and abortion—Rehnquist lost critical cases. T h e chief even surrendered in one o f the causes that had meant the most to him since his days as a young Republican in Arizona.

Rehnquist loved to sing, and he always led the caroling at the Court's annual Christmas party. (Every year or so, a group o f law clerks would write the chief justice an earnest letter complaining that the party cre­ ated an atmosphere o f exclusion for non-Christians; Rehnquist, who pointedly never adopted the term "holiday party," would reply by inviting the young lawyers, in effect, to get over it.) In his early years on the Court, Rehnquist even sometimes wrote the sketches for the occasion. In 1 9 7 5 , as Jeffrey Rosen first reported, he wrote a song about his least-favorite Supreme Court opinion, Miranda v. Arizona. Sung to the tune o f "Angels from the Realms o f Glory," it went: "Liberals from the realm o f theory should adorn our highest bench / Though to crooks they're always chary / At police misdeeds they blench." T h e members o f the chorus then fell to their knees and sang, "Save Miranda, save Miranda, save it from the Nixon Four." Nixon's nominees were Warren Burger, Harry Blackmun, Lewis Powell, and, o f course, Rehnquist himself.

Miranda embodied everything that Rehnquist detested about the liberal activism o f the Warren Court in the 1 9 6 0 s . In the decision, written in 1 9 6 6 by Earl Warren himself, the Court ruled that any criminal suspect in custody must be read his or her rights. There was no conceivable claim that the framers o f the Constitution or Supreme Court justices for a hundred and seventy-five years thought that any such warnings were necessary. Warren and his colleagues had simply invented the requirement to address what they regarded as flaws in the criminal justice system. Rehnquist made clear in opinion after opinion that he didn't think that the warnings were needed, and that they represented a judge-made impediment to the conviction o f guilty and likely dangerous criminals. W h e n the case came up in 1 9 9 9 , Rehnquist finally had a chance to drive a dagger into the case, when the Court granted cert on a case addressing whether Miranda should still stand.

T h e real question in the case was, even i f Miranda had been wrongly decided in the first place, could the Court walk away from

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such a well-known precedent? A t the oral argument o f the case, Breyer made just this point in describing Miranda as "words that I think probably two billion people throughout the world know. He must be warned, prior to any questioning, that he has the right to re­ main silent, that anything he says can be used against him in a court o f law, that he has the right to the presence o f an attorney, and that i f he cannot afford an attorney, one will be appointed for him. All right? Now, that's a hallmark o f American justice in the last—thirty years?"

T h e case opened a window on what it meant to be a "conservative" on the Supreme Court—the Rehnquist mode or the Scalia and Thomas approach. To the surprise o f many people who followed his career, Rehnquist not only joined the majority in the 7 - 2 decision up­ holding Miranda but wrote the opinion himself. Rehnquist's words in Dickerson v. United States were characteristically terse, and somewhat grudging, with little o f his dreaded "reasoning," but his thinking was plain: "Miranda has become embedded in routine police practice to the point where the warnings have become part o f our national cul­ ture," the chief justice wrote. "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the is­ sue in the first instance, the principles o f stare decisis weigh heavily against overruling it now." Scalia, joined by Thomas, wrote one o f his classic fire-breathing dissents—and illustrated what a conservative Court, untethered to the rule o f precedent, would do to landmarks like Miranda (and Roe v. Wade).

As usual, Scalia couldn't resist engaging in a little mockery, even o f his friend the chief justice. I t was true, as Scalia jibed in his dissent, that Rehnquist himself had in the past advocated "an outright rejec­ tion o f the core premises o f Miranda." And Scalia concluded with the sort o f purple prose that attracts attention more than converts: "Today's judgment converts Miranda from a milestone o f judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) o f judicial arrogance." It was clear by this point that Scalia didn't need better arguments to win over his col­ leagues; what he needed was different colleagues.

1 0 _

By the final years o f B i l l Clinton's presidency, the conservative revolution at the Supreme Court was sputtering. O n the is­sues that mattered most to the members o f the Federalist Society and their allies—abortion, federalism, church-state relations, the death penalty, among others—the moderates on the Court held sway.

B y this time in Congress, the Republicans, well accustomed to ma­ jority status, showed less interest in limiting the size o f a federal gov­ ernment that they, to a great extent, now ran. In the sphere o f church-state relations, the momentum on the right had also slowed. T h e career of J a y Sekulow was following a classic Washington trajec­ tory: he came to the capital to do good and stayed to do well.

In one respect, Sekulow did succeed in his goal o f creating an American Civil Liberties Union o f the right. Like the A C L U , Sekulow's American Center for Law and J u s t i c e built a financial em­ pire based largely on direct-mail (and e-mail) contributions from a loyal base o f subscribers. B u t the differences between the A C L U and ACLJ turned out to be more important than the similarities. Sekulow chose not to create an institution like the A C L U but instead to build a monument to himself.

Sekulow drew a salary o f more than $ 6 0 0 , 0 0 0 per year, but that was only the beginning o f the riches he extracted from the complex finan­ cial dealings o f the A C L J and its related organizations. H e also turned the nonprofit corporation into a family business. A C L J raised about $ 1 4 million a year, but much o f that was funneled into another entity called C A S E , whose board o f directors consisted o f Sekulow, his wife, Pam, and his son Jordan. Jay's brother Gary was chief financial officer

THE YEAR OF THE ROUT

126 Jeffrey Toobin

for both organizations. Gary, Pam, and Jordan Sekulow all drew salaries for their duties, and Jay's other son, Logan, was given a late- night comedy show on Christian television sponsored by CASE. According to a review o f the groups' finances by the journalist Tony Mauro, Sekulow's organizations paid for his full-time chauffeur, leased private planes (one from a company owned by his brother's wife), and bought several homes—all for the benefit o f J a y and his family.

T h e centerpiece o f Sekulow's empire was a town house less than a block from the Supreme Court. T h e A C L J bought the building for $5 million, then meticulously renovated it, with such features as a hand- painted mural o f the Washington skyline in the ground-floor confer­ ence room. (The mural cost more than $ 4 0 , 0 0 0 . ) T h e A C L J also bought the town house next door to its headquarters for $ 1 . 5 million for the use o f Sekulow and his family, as well as an $ 8 5 0 , 0 0 0 home in Virginia Beach and a "retreat" in North Carolina. B y the late nineties, the convenient D . C . town house allowed Sekulow to become a famil­ iar figure at the Court, whether he was arguing cases or just stopping by to chat up the Supreme Court beat reporters.

Sekulow kept bringing cases to the Court as well, but in the 1 9 9 9 — 2 0 0 0 term, he discovered the limit o f his free speech argu­ ments. T h e case arose out o f one o f the central rituals o f Texas life— the high school football game.

T h e local school board in Santa Fe, a small town in the southern part o f the state (not to be confused with the city in New Mexico), had studied the Court's precedents with care, trying to carve out a role for prayer at the Friday night football games. Following extensive ne­ gotiations and litigation, the board established a program where a student elected by his or her peers would give a "nonsectarian, non- proselytizing" prayer before each game. Nevertheless, two students, a Catholic and a Mormon, sued to stop the practice, arguing that the policy violated the Establishment Clause.

Sekulow, representing the school board, went before the justices with what had worked before: "Santa Fe Independent School District has adopted a neutral policy which simply permits student-led, student-initiated speech at football games," he said. The policy "allows for the individual student to determine the content o f the message. T h a t message may include a prayer at the student's discretion. . . . The Santa Fe policy creates a venue for student expression. It is neutral as to religious or secular speech."

This time, however, the justices looked behind Sekulow's charac-

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terization o f what was happening. T h e record in the case showed that the entire policy was designed by the school to allow students to lead prayers—not just "speech"—at games. "This is not a neutral speech policy," Souter said to Sekulow. "It is not merely religious subject matter. It is religious worship. It is an act o f religious practice."

"And i f the student decides to engage in a prayer," Sekulow an­ swered, "that is speech protected by the First Amendment, and to then say that a policy—"

"As private speech," Souter shot back. "The question is whether that speech can be, in effect, involuntarily inflicted upon those who may not want it by the power o f the state."

Scalia tried to come to the rescue o f the school board's policy, but this time his bombastic style hurt his cause. H e attempted to trivial­ ize the dispute by pointing out that the two students who brought the case didn't even use their real names, which was why the case was called Santa Fe Independent School District v. Doe. "Could I ask you about that? That's just a curiosity I have in this case. I don't even know who the plaintiffs are," Scalia said. "Do people have rights to sue anony­ mously in federal court? Is anybody who just doesn't want it known that he's bringing a lawsuit, he's ashamed o f it for one reason or an­ other, can sue anonymously?"

B u t it wasn't a question o f shame—it was fear. T h e students who had challenged the policy had been pushed, threatened, and placed in so much danger that the local judge directed that their names be taken off the complaint. T h a t , o f course, was precisely the p o i n t — that the state had harnessed the power o f religious conformity to ex­ clude outsiders.

In an opinion by Stevens, the Court struck down the student-led prayers in Santa Fe by a 6 - 3 vote, with Rehnquist, Scalia, and Thomas in dissent. T h e core o f Stevens's opinion was a rejection o f Sekulow's argument that the prayers were merely "private speech" by the students. "These invocations are authorized by a government pol­ icy and take place on government property at government-sponsored school-related events," he wrote. "The expressed purposes o f the pol­ icy encourage the selection o f a religious message, and that is precisely how the students understand the policy." I t was no answer, Stevens continued, to say that students who were offended by the prayers could simply choose to avoid the games. T h e school district could not "exact religious conformity from a student as the price o f joining her classmates at a varsity football game."

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Sekulow was disappointed, o f course, but the defeat in the Santa Fe case, combined with his earlier victories before the Court, actually wound up being a model for how the Supreme Court ought to work. T h e majority o f the Court had settled on a reasonable and comprehen­ sible rule for religious observances on government property—that the government had to allow genuinely private religious activity, but at the same time officials could not sponsor or endorse such rituals. After Santa Fe, the Court stopped getting so many o f these cases because the lower courts generally could apply these rules on their own. The Court's compromise on the issue didn't satisfy everyone, but it didn't offend everyone, either—which made it a classic expression o f the style o f the Rehnquist N i n e at this moment in its history. This was not a Court for the true believers—for Scalia, Thomas, and even Rehnquist himself—but rather a Court for the middle-of-the-road majority.

Mostly, that meant O'Connor. Increasingly, it also meant Stephen Breyer.

Like most other justices, Breyer took a few years to feel fully com­ fortable on the Court, but by the last years o f Clinton's term, he had come into his own. O n one level, Breyer made an unlikely power bro­ ker. H e could be breathtakingly oblivious to his surroundings. One of his law clerks never showed up for work until noon; another lay on the floor for long periods because o f a back condition. In neither instance did Breyer inquire or even, apparently, notice, as long as his chambers' work was done. H e was also renowned among law clerks for conduct­ ing high-volume discussions o f Court business in restaurants and other public places. Breyer was so engaged in the work o f the Court that he sometimes ignored the exigencies o f everyday life.

B u t Breyer had been paying attention when he watched his former boss Ted Kennedy push legislation through the Senate, building one coalition at a time, often with sometime adversaries. In the same way, Breyer worked his colleagues—decorously, respectfully, but unmis­ takably—to try to get them to see things his way. This approach was hardly unique in the Court's history—it was a crucial part o f the Brennan legend—but the Rehnquist Court had no comparable figure. Souter and Thomas were downright reclusive, and Stevens and

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Ginsburg tended that way; Kennedy, sometimes prickly, often myste­ rious, also kept to himself; Scalia prided himself on never lobbying, and Rehnquist had no interest in anything that m i g h t disrupt the swift procession o f cases from oral argument to conference to opinion.

Once, around this time, the chief read a draft opinion o f one o f Scalia's attacks on O'Connor and immediately summoned him to the phone. "Nino, you're pissing off Sandra again," Rehnquist said. "Stop it!" For her part, O'Connor was willing to entertain suitors from her queenly perch at the center o f the Court, but she would not deign to hustle for votes. Breyer would.

Such was the justices' isolation from one another that the best advo­ cacy could be done only in oral argument, when they were a captive au­ dience for one another. For this reason, Breyer planned his questions with care, not because he was especially interested in the answers but because his questions were a way o f making his case to his colleagues. Like the law professor he used to be, Breyer favored hypothetical ques­ tions. At times, they could be overly long and complex, and Breyer's point would be lost; once, mysteriously, he asked a question about tak­ ing a pet oyster for a walk in the park. B u t on other occasions Breyer distilled an issue to its essence. I t m i g h t be an exaggeration, but not by much, to say that a single question from Breyer on November 1 0 , 1 9 9 9 , brought the "federalism revolution" to a close.

In the early nineties, several states were making millions o f dol­ lars selling the information in their Department o f Motor Vehicles databanks to direct-mail operators, insurance companies, and other marketers. Citizens began objecting to the practice, and Congress responded in 1 9 9 4 by passing the Driver's Privacy Protection A c t , which essentially told states they couldn't make'such sales without the drivers' consent. South Carolina sued to stop enforcement o f the act, asserting that the federal law was a violation o f states' rights.

The claim seemed to mesh with the Rehnquist Court's approach to federalism. Here was Congress dictating to the states how they should manage a classic function o f state government, administering driver's licenses. In 1 9 9 7 , the Court had struck down part o f the Brady B i l l gun control law, saying that the federal government had no right to force states to conduct background checks on gun buyers. As Scalia wrote for the Court in that case, "The Federal Government may nei­ ther issue directives requiring the States to address particular prob­ lems, nor command the States' officers . . . to administer or enforce a

130 Jeffrey Toobin

federal regulatory program." Wasn't the law on driver's licenses the same t h i n g — a directive to the states to solve a particular problem?

Breyer thought that the regulation o f a massive and complex na­ tional economy could only be led by the federal government and that Congress had every right to pass these kinds o f laws. B u t how, he wondered, could he make that point in the context o f this case?

South Carolina was represented by its attorney general, Charles Condon, who was also the plaintiff in the case, known as Reno v. Condon. One o f the immutable laws o f oral advocacy in the Supreme Court is that elected officiais, like state attorneys general, ought not to do it. Especially in the Rehnquist years, when aggressive question­ ing from the bench was the rule, nonspecialists generally failed mis­ erably to advance their cause in front of the justices. Politicians generally possessed none o f the key attributes o f good oral advocacy: intimate knowledge o f the Court's precedents, intellectual dexterity with complex concepts, the ability to answer hard questions concisely. ( J o h n Ashcroft had a notoriously bad outing in front o f the justices when he was attorney general o f Missouri; wisely, then, Ashcroft did not follow the informal tradition for each attorney general o f the United States to argue a case.) Still, few state attorneys general can set aside their egos long enough to forgo the opportunity to argue them­ selves. So it was with Charlie Condon.

"This case is not about protecting privacy," Condon began, promis­ ingly enough. "The issue in this case is whether thousands of state of­ ficials across the country can be pressed into federal service by the Congress to administer a federal regulatory act. T h e Driver's Privacy Protection Act is complex, it's burdensome, and it applies only to the states o f the United States."

W h e n Condon said, "We're being puppets o f the federal govern­ ment," Breyer decided to spring his trap.

"Isn't that true o f every federal prohibition on what a state govern­ ment does?" Breyer asked. "I mean, suppose you sell hot dogs at the state park. Don't you have to comply with the food and drug laws? I mean, those laws may be complicated, and you may have to say what kind o f a hot dog and what kind o f a stand, and what about—it's cer­ tainly a lot better than the m i n i m u m wage, or the—isn't it? I mean, you have to do a lot less than that. In other words, is your argument on this part just going to set aside all federal regulatory programs that tell states what they can't do?"

T h e question put Condon completely in a box. H e could not say

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that the state could sell inferior hot dogs in its parks. H e could not say that the state could pay less than m i n i m u m wage. So how did Condon answer?

"Justice Breyer, that again is a good question, but that goes to the heart o f this case. W e aren't selling hot dogs here." Condon's answer was so inept that some people in the audience started to laugh. B u t Breyer wasn't finished.

"Well, let me ask you another example," Breyer went on. "Congress passed the Internet Tax Freedom A c t , and it told states they couldn't tax these Internet transactions for a period o f time, can't do it. I sup­ pose under your theory that's invalid, too. It only dealt with the states and governmental entities. I suppose that's invalid, is that right?"

This question was even more ingenious, because Breyer picked a federal law beloved by conservatives. T h e federal ban on state taxes on Internet transactions could hardly be characterized as the heavy hand o f the liberal federal government. B u t it was, indeed, a federal restric­ tion on state sovereignty. All Condon could mutter in reply was, "That could raise some concerns."

Through his questions, Breyer had underlined the folly o f trying to wall off the states from federal regulation. It couldn't be done, and it shouldn't be done. The case turned into a rout. At the conference, the vote was 8 - 1 in favor o f the federal law. B u t then Rehnquist, the great patron of states' rights, assigned the opinion to himself and that prompted Scalia, the would-be dissenter, to make the Court unanimous.

The chief had not given up on federalism, o f course. In the same term, Rehnquist succeeded in invalidating a part o f the federal Violence Against Women Act. T h e disputed provision allowed women who claimed they had been assaulted because o f their gender to sue their attackers in federal court. T h e provision was the kind o f political stunt that generated such contempt for Congress among Rehnquist and his allies. Assault victims could always sue in state court; the federal law was largely symbolic, and rarely invoked, and the Court, 5 - 4 , struck it down as a violation o f the Commerce Clause. B u t the effect o f the decision in the real world was almost meaning­ less; it curtailed lawsuits that weren't being filed anyway. After more than a dozen years as chief justice, Rehnquist had failed to l i m i t the power o f the federal government.

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In this year o f defeat after defeat, Rehnquist also failed to make

progress on abortion—in a case where the facts largely favored his

side.

T h e Court had largely stayed away from the subject since Casey in

1 9 9 2 . T h e decision by the Casey troika o f O'Connor, Kennedy, and

Souter had not settled the issue for all time, but they had resolved

most o f the major controversies. First-trimester abortions could not

be banned; parental consent laws were permissible; spousal notifica-

tion—O'Connor's bête noire—was out. N o t coincidentally, public

opinion had settled in very much along the lines the Court had de-

vised. President Clinton was pleased with the status quo as well. The

law on abortion wasn't broken, so the justices, especially O'Connor,

didn't try to fix it.

For a little while after Casey, the antiabortion movement floun-

dered, looking for an issue that m i g h t restore its momentum in both

the political and legal arenas. T h e n , one day, an anonymous informant

slipped an obscure medical paper to Douglas Johnson, a top lobbyist

for the National R i g h t to Life Committee. T h e eight-page work had

been prepared for the National Abortion Federation, a group o f abor-

tion providers. I t was an explicit how-to guide for terminating preg-

nancies after the twentieth week. T h e author, Dr. Martin Haskell o f

Cincinnati, said he had developed a technique where he dilated a

woman's cervix over a period o f several days and then moved the fetus

to a feetfirst breech-birth position. Using surgical scissors to cut into

the skull, he vacuumed out the contents and, with the head reduced in

size, removed the fetus from the pregnant woman. Haskell called this

procedure "dilation and extraction," or D & X . (Previously, late-term

abortions had been conducted by removing the fetus in pieces.)

Johnson saw to it that the paper received wide circulation in the an-

tiabortion movement, which dubbed the practice described as "partial

birth" abortion, because the fetus was alive when the procedure began.

T h e grisly details had a galvanizing effect both inside and outside

the movement. Abortion opponents saw the practice as barbaric and

indefensible, nothing less than infanticide. In state legislatures and in

Congress, where Republicans now presided, prolife politicians moved

quickly to legislate a ban. Supporters o f abortion rights were thrown

on the defensive. They pointed out that such abortions were ex-

tremely rare, amounting to less than one percent o f the more than one

million abortions performed each year in the United States. And the

vast majority o f these abortions were done on women who suffered

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major medical complications or whose fetuses were horribly defective. Still, the images conveyed by the procedure proved to be politically compelling. T h e Republican Congress passed bans twice in the 1 9 9 0 s , and Clinton vetoed them each time because neither bill had an exception to protect the health o f the mother. Abortion opponents had greater success at the state level. Throughout the decade, one state after another passed laws prohibiting the practice. Inevitably, notwithstanding the justices' reluctance to return to the divisive sub­ ject, the Supreme Court would have to decide i f these laws could stand.

T h e case came before the justices on April 2 5 , 2 0 0 0 , the second-to- last day o f oral arguments for the term that began the previous October. Pushing through a decision o f this magnitude before the summer recess at the end o f J u n e would clearly be a formidable chal­ lenge, given the complexity and contentiousness o f the issue. T h e courtroom was tense when Don Stenberg, the attorney general o f Nebraska, stood to defend his state's law, which had been declared un­ constitutional by the Court o f Appeals for the Eighth Circuit in Stenberg v. Carhart. "The issue here today is whether a state may pro­ hibit a little-used form o f abortion that borders on infanticide when safe, alternative forms o f abortion remain available to women who seek abortions," he said.

Scalia always asked the most questions in oral argument, but the issue in Stenberg moved him to a level o f hostile garrulousness un­ precedented even in his career. H e dominated the argument to an al­ most embarrassing degree. "General Stenberg," he asked at one point, "I took it that what you meant when you said it bordered on infanti­ cide had nothing to do with the viability o f the fetus, but that the procedure looks more like infanticide when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms o f killing fetuses or children outside the womb. Is that not what the legislature was concerned about?" (It was, said Stenberg.) To the lawyer for the Nebraska obste­ trician who brought the case, Scalia offered this soliloquy: "Neither Roe nor Casey are written in the Constitution. They may not have mentioned all o f the appropriate interests that may be taken into ac­ count. W h y is it not an appropriate interest that the state is worried about rendering society callous to infanticide? There were very many highly civilized societies, including the ancient Greeks, who permit­ ted infanticide, who said that the right o f parents included the right

134 Jeffrey Toobin

not to be burdened with a child they didn't want, especially a de­ formed child. And therefore, in order to prevent other societies de­ scending into that degree o f callousness, the numerous states have enacted these laws. I don't think it's so much a concern with medical matters. I think it's a concern with the horror o f seeing, you know, a live human creature outside the womb dismembered."

Everyone in the courtroom was waiting for O'Connor to tip her hand. Finally, she broke her silence to say: "Mr. Stenberg, let me ask you a question. There is no exception under this statute, as I read it, for exceptions for the health o f the woman, is that correct?" He an­ swered, "That is correct, Your Honor, and it's not necessary."

T h a t , o f course, was a matter o f opinion. T h e question illustrated O'Connor's priorities when it came to abortion. She was all for limi­ tations and restrictions, but not at the cost o f women's health. She didn't care i f laws were designed to talk women out o f having abor­ tions, but the choice ultimately had to belong to the women them­ selves.

T h e issue in Stenberg was not simple. T h e medical testimony about the kinds o f procedures outlawed by the Nebraska law, and the effect o f the bans on women's health, was closely and inconclusively debated at the oral argument and in the briefs. T h e result o f the conference on Friday, April 2 8 , was similarly ambiguous. Four justices—Rehnquist, Scalia, Kennedy, and Thomas—wanted to uphold the law. Four oth­ ers—Stevens, Souter, Ginsburg, and Breyer—wanted to strike it down as a violation o f Roe and Casey. O'Connor said she would vote to strike the law down i f it did in fact jeopardize women's health.

T h e result left Stevens as the senior justice in a tenuous majority. T h e customary route in these circumstances would have been for Stevens to give the opinion to O'Connor, who was the shakiest mem­ ber o f the coalition. B u t Stevens gave it to Breyer instead. O'Connor was such a reluctant member o f the majority that there was a possi­ bility that she m i g h t find, as justices sometimes did, that an opinion "wouldn't write"—that is, trying to explain the law's unconstitution­ ality m i g h t push her to an opposite conclusion. Breyer and O'Connor had become close friends, and Breyer had the political skills to keep his senior colleague on board. Moreover, Breyer had the technical ex­ pertise to assemble the complex medical evidence in support o f inval­ idating the law. So, with the days in the term slipping away, Breyer set out to save his majority in what would certainly be his most im­ portant opinion in six years on the Court.

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"Steve," a friend once told Breyer, "you think like an eagle, but you write like a turkey." Yet his plodding, antirhetorical style served Breyer well in the Stenberg assignment. H e determined to make al­ most no reference to Roe, Casey, and the right to privacy; o f those two cases, Breyer wrote, "We shall not revisit those legal principles. Rather, we apply them to the circumstances o f this case." To do so, he focused on the question O'Connor asked in oral argument. H e set out to show that the Nebraska law deprived women o f the right to the best medical choices for their health. Or, as Breyer put it in his gnarled prose, "The State fails to demonstrate that banning [this kind o f abortion] without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circum­ stances, { i t ] would be the safest procedure."

Breyer had his law clerk on the case check almost daily with the O'Connor chambers about whether she was with him on the case. A t any moment, she m i g h t pull out o f the majority and write an opinion merely concurring in the judgment; that would make her opinion, not Breyer's, the controlling authority on abortion law. For this rea­ son, in his politically savvy way, Breyer persuaded Stevens and Ginsburg not to circulate their concurring opinions until he had O'Connor's c o m m i t m e n t to the majority; Breyer feared that their more liberal views might sour O'Connor on the whole issue. Breyer and O'Connor were both fundamentally more interested in reality than in theory; in complex cases like this one, they both deferred to experts, like the American Medical Association, which opposed the Nebraska law. Finally, just days before the end o f the term, the O'Connor clerk on the case called his counterpart in the Breyer cham­ bers and said, "I have something for you that you're going to like." Moments later, a memo from O'Connor to Breyer arrived, saying, "I join your opinion."

Dissenting opinions are not assigned in the same formal way that majority opinions are, but the senior justice in the minority usually coordinates the opinions on his side. In Stenberg, Rehnquist deferred to Thomas for the main opinion on their side, giving him a rare op­ portunity to write in an important case, i f only in dissent. Thomas's clerk dueled with Breyer's in pressing the Supreme Court library to track down obscure medical periodicals to bolster their positions. W h e n Thomas was just about finished, Kennedy appeared without warning with a lengthy and passionate dissent o f his own. Kennedy

136 Jeffrey Toobin

felt betrayed by O'Connor and Souter, his fellow members o f the Casey troika. He thought that case had delineated the outer limits of abor­ tion rights, but now the Court was, in Kennedy's view, going much farther. H e wrote that Nebraska "chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious o f crimes against human life, while the State still protected the woman's autonomous right o f choice as reaffirmed in Casey."

Kennedy's dissent set off an uncharacteristic round o f pettiness at the Court. His analysis was so much more detailed and thoughtful than Thomas's that Breyer, in responding, referred to Kennedy's opin­ ion as "the dissent." W a i t , Thomas objected, Rehnquist had assigned his opinion as "the dissent." W h i c h one was "the" dissent? Neither Kennedy nor Thomas would yield. Breyer didn't know what to do. So the three justices—Kennedy, Thomas, and Breyer—visited Rehnquist to resolve the impasse. It was a measure of their respect for the c h i e f that they all deferred to him on a matter like this one, and Rehnquist did come up with a Solomonic solution. Breyer would re­ fer to the "Kennedy dissent" and the "Thomas dissent," and neither one as "the" dissent. Meanwhile, Scalia wrote his own dissent, which surpassed even his own high standards for invective and hysteria. It began, "I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history o f this Court's jurisprudence beside Korematsu and Dred Scott." (Korematsu authorized the military exclusion o f Japanese American citizens from the West Coast during World W a r I I ; Dred Scott held that even freed blacks could not become American citizens.)

T h e extent o f the conservative rout in the 1 9 9 9 - 2 0 0 0 term was so great that, in Stenberg, O'Connor departed from one o f her cardinal principles o f jurisprudence. Her position was not supported by pub­ lic opinion. Indeed, there was nationwide support for bans on "partial birth" abortion. Thirty-one states had banned the practice, and the Nebraska law had passed the state legislature with just a single dis­ senting vote. In Stenberg, O'Connor's reverence for expertise, her sus­ picion o f paternalism, and the deft lobbying o f Breyer moved her farther left than she had ever gone in her judicial career.

To be sure, the Court did not suddenly turn into a reincarnation of the liberal Warren Court. T h e justices had parried conservative legal offensives—on church-state, federalism, and abortion—rather than forging a liberal direction o f their own. They had protected the status quo, which was what the country wanted, but that left the conserva-

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tive movement seething. Even with seven Republican appointees on the Court, and eleven o f the last thirteen appointments made by Republican presidents, the justices had not made the sharp turn to the right that conservatives had been seeking for a generation. As the decisions in that year showed, the Court would be sticking to its moderate course.

From the law students and professors in the Federalist Society to the evangelical warriors like J a y Sekulow and J a m e s Dobson, there was outrage and frustration. Conservatives still won an occasional case, but they didn't control the Court on the issues that mattered most to them. They had used all their best arguments and come up short. There was only one way to change the Court—by putting their own man in the W h i t e House. Control o f the presidency was the only route to control of the Court.

In the Court itself, as a new term began in October 2 0 0 0 , a near si­ lence prevailed. Controversial cases seemed to have vanished from the pipeline. For the justices, the sleepy docket was a welcome respite af­ ter the dramas o f the previous year. Greeting a new group o f law clerks that fall, David Souter was smiling when he made a prediction: "This is going to be a very boring year."

PART

T W O

1 1

Random chance—a freakishly close vote in the single decisive state—gave the Supreme Court the chance to resolve the 2 0 0 0 presidential election. T h e character o f the justices themselves turned that opportunity into one o f the lowest moments in the Court s history. T h e struggle following the election o f 2 0 0 0 took thirty-six days, and the Court was directly involved for twenty- one o f them. Yet over this brief period, the justices displayed all o f their worst traits—among them vanity, overconfidence, impa­ tience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. T h e justices did almost everything wrong. They embarrassed themselves and the Su­ preme Court.

T h e justices never liked to think o f themselves as political beings, but all o f them except Stevens and Souter maintained a healthy inter­ est in the political scene. It could hardly be otherwise. W i n n i n g an appointment to the Supreme Court takes plenty o f savvy, and not even total job security can slake a lifelong passion for the business o f win­ ning and losing elections.

This was especially true o f Sandra O'Connor. She still loved poli­ tics and, more to the point, the Republican Party. W h e n Rehnquist ran his occasional betting pools on elections, O'Connor's notes to the chief always referred to the Republicans as "we" and "us." B u t by 2 0 0 0 , the Republican Party in O'Connor's memory was not necessar­ ily the same as the one in real life. Her personal political trajectory followed that o f her first mentor in Arizona politics, Barry Goldwater, whose Senate campaign she worked on in 1 9 5 8 . W h e r e Goldwater had once personified the extreme rightward edge o f the Republican

TO THE BRINK

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Party, he came in his later years to be a kind o f libertarian, uncom­ fortable with the social agenda o f the evangelical conservatives. Goldwater believed in small government and states'- rights, but he never signed on for expressions o f public piety and regulation o f pri­ vate conduct. Neither, for the most part, did O'Connor. (And she al­ ways remembered Goldwater's salty response to Jerry Falwell's assertion that "good Christians" should be wary o f O'Connor's nomi­ nation. "I think every good Christian ought to kick Falwell's ass," the senator said.)

There was one contemporary politician whom O'Connor really ad­ mired—Governor George W. Bush o f Texas. She was an old friend of his parents and a tennis partner o f the former First Lady's. O'Connor recognized the senior Bush's limitations as a politician, but she thought that his son, the 2 0 0 0 Republican presidential nominee, had the common touch and a slogan that might have been O'Connor's own— "compassionate conservative." As she tracked Bush's rise to national prominence in the late nineties, O'Connor thought his cen­ trist appeal would win over voters and protect the Republican Party from its extremists. T h e justice didn't know George W. personally, but she found him very attractive, in every sense of the word.

Sandra and J o h n O'Connor couldn't attend political events, in light o f her position, but they still spent a great deal o f time out on the town in Washington. Perhaps the best-known story about O'Connor involved her attendance, in 1 9 8 5 , at a black-tie gala sponsored by the Washington Press Club. She was seated at the same table as J o h n R i g g i n s , the hard-living star running back o f the Washington Redskins. After far too many drinks, Riggins told her, "Come on, Sandy baby, loosen up. You're too tight." Riggins then proceeded to fall asleep on the floor. Less well known was O'Connor's reaction to the incident. A few weeks later, she showed up at her exercise class wearing a T-shirt that said, "Loosen up at the Supreme Court." And several years later, when R i g g i n s began a short-lived acting career, O'Connor came to his debut at a Washington area community theater with a dozen roses for him.

So it was very much in keeping with the O'Connors' custom that they spent the night o f the 2 0 0 0 election at a party. T h e couple was especially close to Lee and J u l i e t Folger, prominent local philanthro­ pists and modern counterparts to the venerable Washington aristo­ crats known as the "cave dwellers." Mary Ann Stoessel, the widow o f the prominent diplomat Walter Stoessel and the O'Connors' host on

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election night, came from the same milieu. T h e refined setting o f Stoessel's party and the genteel crowd made the events o f the evening all the more peculiar.

Everyone knew the election would be close. T h e polls showed the contest between Vice President Al Gore and Governor Bush coming down to a handful o f states, especially Florida. O n the night o f Tuesday, November 7, Stoessel had placed televisions all over her house, so the seventy or so guests could follow the results as they moved from room to room. J u s t i c e O'Connor settled in the small basement den, where one o f the televisions was located, and she saw Dan Rather call Michigan and Illinois for the vice president. T h e n , at 7 : 4 9 , N B C called Florida for Gore; C B S agreed a minute later; A B C joined the consensus at 7 : 5 2 .

Hearing Florida called for Gore, J u s t i c e O'Connor looked stricken. "This is terrible," she said. "That means it's over." She then walked away in disgust. Later, after her statements at the party became pub­ lic, O'Connor gave friends a rather implausible explanation for her be­ havior. She said she was angry not because Gore had apparently won the presidency but because the networks had called the election be­ fore voting was complete on the West Coast. B u t while the meaning o f Sandra O'Connor's words may have been debatable, the meaning o f what J o h n O'Connor had to say that night was not.

J o h n and Sandra O'Connor were both seventy years old and in their forty-eighth year o f marriage in 2 0 0 0 ; it was hard to imagine a hap­ pier union. Through the years, John's energy had matched Sandra's, but his was coupled with a madcap sense o f humor that never failed to delight his more straitlaced wife. As J u s t i c e O'Connor's biographer J o a n Biskupic learned when J o h n was running for president o f the Rotary Club in Phoenix, he listed his qualifications as: "Beautiful wife. Rich father-in-law. Pool hustler." Shortly after Sandra was appointed to the Court, J o h n gave Harry Blackmun a business card that said his skills included "Tigers Tamed, Bars Emptied, Orgies Organized." J o h n became a prominent lawyer in Phoenix but didn't hesitate to give up his career to move to Washington after her ap­ pointment. Through the years, he spent time with a couple o f differ­ ent law firms in D.C. but never established himself the way he had in Arizona; the possibilities for conflict with his wife's work were simply too great. B u t i f J o h n worried about living in Sandra's shadow, he never let on.

In the period leading up to the 2 0 0 0 election, John's health dete-

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riorated. H e fainted on a visit to Phoenix, and his heart stopped briefly. He had surgery to install a pacemaker. In the past, J o h n had always been extraordinarily discreet about anything to do with the Court. B u t on election night, J o h n gave an extended explanation o f Sandra's distress. T h e y wanted to retire to Phoenix, but Sandra wouldn't hand her seat to a Democratic president. A Gore victory meant at least four more years for them in Washington, and they wanted to leave. That's why, J o h n said, Sandra was so upset. It was un­ like him to talk about their plans in a quasi-public setting. In the end, o f course, her mistake in uttering some unduly candid words was trivial; her blunders in the days ahead were not.

T h e vote count in Florida was fantastically, almost surrealistically, close. (In time, during their coverage on election night, the networks rescinded their projection o f the state for Gore, then awarded it to Bush, and finally labeled the state too close to call.) On Wednesday, November 8, the first complete election figures in Florida showed Bush ahead o f Gore by 2 , 9 0 9 , 1 3 5 to 2 , 9 0 7 , 3 5 1 , or a margin o f 1,784 votes. Under Florida law, a result this close required all the counties in the state to do an immediate automatic recount. That process, which essen­ tially meant running all the ballots through the counting machines a second time, took a day. T h e new results, announced on Thursday, November 9 , cut Bush's margin to 3 2 7 votes—or . 0 0 0 0 0 0 5 6 percent.

Events in the first few days after the election had a hallucinogenic quality. Partisans on both sides had no experience with a controversy like this one. W h i l e there were a great many people who were famil­ iar with politics, almost none o f them knew anything about how votes were actually cast and counted. And the subject o f recounts was even more obscure, familiar only to a tiny band o f part-time experts on both sides. (There have never been enough recounts to support even one person's entire career.) N o one, o f course, had any idea how long the controversy would last, so each side worked with a frantic, sleep­ less intensity.

T h e immediate focus o f controversy was Palm Beach County, Florida's biggest by area and most Democratic by inclination. Because the local election administrator, Theresa LePore, wanted to make vot­ ing easier for the county's many elderly voters, she used 12-point type—rather than the customary 1 0 - p o i n t — t o lay out the ballot. B u t

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with ten candidates, the bigger type meant that there was not enough room to list them all on one page; instead, she spread the names across two pages, with the holes to be punched in the middle, the famous "butterfly ballot." T h e arrangement left Patrick Buchanan, the rabidly conservative independent candidate, in the second punch-hole posi­ tion and Gore in the third place. (In Florida, like most other states, the parties are usually listed in order o f finish in the most recent governor's race.) As a result, Buchanan received 3 , 7 0 4 votes in Palm B e a c h — nearly 2 , 7 0 0 more than he'd won in any other county. As Buchanan himself acknowledged, most o f the votes were intended not for him but rather for Gore. W h a t , i f anything, could be done about these er­ rors after Election Day? It wasn't clear. S t i l l , protesters and news cam­ eras descended on the government center in West Palm Beach.

Scrambling to keep their hopes alive, the members o f the Gore team made their first move on November 9 , two days after the elec­ tion. Pursuant to Florida law, they asked four out o f the state's sixty- seven counties to conduct manual recounts—ballot-by-ballot reviews to make sure that the votes were correctly recorded. N o t coinciden- tally, Gore asked for recounts in Broward, Miami-Dade, Palm Beach, and Volusia, the four most Democratic-leaning counties in the state. The butterfly ballot controversy applied only in Palm Beach, but the main issue in the other counties concerned the number o f so-called undervotes—that is, ballots where the counting machines registered no preference in the presidential race. T h e Gore team thought a re­ count was necessary to identify whether any o f these undervote ballots had actually been marked with a preference for president. In each county, a little-known entity called the Canvassing Board, made up o f three local officials, would vote to determine whether a recount should take place. Gore had not filed a lawsuit, instead asking for manual recounts, which was known under Florida law as filing a protest.

B u t before any o f the boards could even determine whether to con­ duct a manual recount, the Bush forces struck back in a way that hinted at how the contest would proceed over the following month. They were going to do whatever it took to win this election. Throughout the post-Election Day controversy, the passion to win, fueled in part by the desire to get control o f a Supreme Court that had disappointed conservatives for so long, was all on the Republican side. James A. Baker I I I , the wily former cabinet member who was running the Bush effort, thought that a lawsuit was a terrific idea, and he

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asked former Missouri senator J o h n Danforth, a part-time clergyman and nationally known figure o f rectitude, to represent Bush in the case. Danforth declined, citing the old rule "Candidates don't sue." Undeterred, Baker chose a more zealous advocate, the Washington lawyer Theodore B . Olson, who was only too happy to lead the charge.

In keeping with the frantic pace, Olson filed the lawsuit on Saturday, November 1 1 . Two days later, Olson stood before J u d g e Donald M . Middlebrooks in federal court in Miami and asked him to stop the recounts before they had even started. His rationale was pretty thin—that Gore's "selective" recounts in only four counties vi­ olated the Equal Protection Clause o f the Fourteenth Amendment, because they emphasized the votes o f some counties over others. (Bush, o f course, could have cured this problem by asking for his own recounts anywhere he wanted.) T h e judge had been working as hard as the lawyers: he was ready with an opinion by the time oral argu­ ment was completed on Monday.

Middlebrooks rejected Bush's position and allowed the recounts to proceed. "Under the Constitution of the United States, the responsi­ bility for selection o f electors for the office o f President rests prima­ rily with the people o f Florida, its election officials and, i f necessary, its courts," he wrote. "The procedures employed by Florida appear to be neutral. . . . I believe that intervention by a federal district court, particularly on a preliminary basis, is inappropriate." Far from de­ terred, Baker and the rest o f the Bush team had plenty o f fight left. T h e onslaught o f litigation prompted by the election had just begun.

T h e justices and their staffs watched the developments in Florida with the same bewildered fascination as the rest o f the country did. B u t there was one person at the Court who was already thinking sev­ eral steps ahead in the process. T h a t was Anthony Kennedy.

In part, Kennedy was just doing his job. T h e justices divide up re­ sponsibility for procedural matters by circuit court o f appeals, and Kennedy was assigned the Eleventh Circuit, which included Florida. So he had some reason to monitor the developments there. O n the day after J u d g e Middlebrooks's decision, Kennedy circulated a copy to all the other chambers. J u s t keeping you apprised, the cover memo said. J u s t filling you in.

In a minor but noticeable way, Kennedy had contravened the rar-

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efied mores o f the Court. All o f the justices read the newspaper; all o f them knew what was happening in Florida; none o f them needed Tony Kennedy to give them the latest news. It was amusing, more than offensive, that Kennedy was sniffing around the unfolding con­ troversy. T h e memo showed just a hint o f overeagerness to get in on the action. N o one else on the Court would have sent that memo. More than any o f the other justices, Kennedy loved drama and what he called "the poetry o f the law." K e n n e d y s vanity was generally harmless, almost charming—sort o f like the carpet in his office.

Understatement was the rule for the decor in most justices' cham­ bers. Everyone had a few personal touches—O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1 9 3 2 when Babe R u t h hit his "called shot" home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars—garish touches that made the office a sort o f comic tourist attraction for law clerks and other insiders. All o f the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection. W h a t was more, he wedged his desk into the far corner o f his office, away from the door, so that visitors had to traverse the expanse o f his room to shake his hand. It was an office that tried hard, maybe too hard, to impress. (Kennedy even labored on his mag­ nificent view o f the east front o f the Capitol. W h e n Congress an­ nounced plans to build a massive visitors' center between the Court and the Capitol, Kennedy took the lead in lobbying the legislators to make sure it was built entirely belowground, so as not to disrupt the vista. T h e negotiations turned out to be surprisingly complex, and lasted for years, but Kennedy won this battle, and the view from the Court was largely preserved.)

The first Kennedy memo to his colleagues about the legal machi­ nations in Florida was followed by a second, then another. H e was al­ most providing a legal play-by-play. His hunger for the case was palpable.

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Once the Bush lawyers failed in their effort to have the federal court shut down all the recounts at once, they tried to do it one county at a time. B y now, both sides had become familiar with the iron law o f re­ counts: the trailing candidate tries to open up the process and recount as many votes as possible in as many places as possible; the leading candidate does just the opposite, fighting to limit the number and lo­ cations o f any recounts. T h i s wasn't high principle, just political war­ fare by other means.

T h e Gore forces had one principal advantage—Florida law—and one major disadvantage—Katherine Harris—in their fight for re­ counts. State law had a strong presumption in favor o f allowing re­ counts to reach accurate results. As for Harris, she occupied the previously obscure position o f secretary o f state. An heiress to a real estate fortune, she had an imperious manner and big ambitions. She had vaulted quickly from the state senate to statewide office and had plans to move up the Republican hierarchy. Earlier in the year, she had traveled to N e w Hampshire to campaign for George W. Bush and later served as cochair o f his campaign in Florida. Like many secretaries o f state around the country, Harris was both a partisan elected official and the ostensibly neutral arbiter o f elections in the state.

Immediately after Election Day, the Bush team placed one o f its most trusted legal advisers in Florida, Mac Stipanovich, as its repre­ sentative in Harris's office. She made no decisions in this period with­ out consulting him. T h e most important issue for her to decide concerned the recounts. Could the recounts continue longer than seven days after the election, that is, past Tuesday, November 14? The law said both that Harris should certify by the seventh day and that she could also allow recounts to proceed longer. O f course, she did not. I f the counties weren't done by then (and three of the four were not finished by then), too bad for them—and Al Gore. B u t then on Friday, November 1 7 , the Florida Supreme Court, on its own initia­ tive, stepped into the fray to overrule Harris and say that the counties could continue counting votes. T h e justices o f that court scheduled a full argument in the case for Monday, November 2 0 , but in the mean­ time they ordered the recounts to proceed.

B y Monday, Bush's margin in Florida had grown from 3 0 0 to 9 3 0 votes. (Volusia County had completed its recount, with a net gain o f 2 7 votes for Gore, and the counting o f overseas absentee ballots had netted 6 3 0 votes for Bush.) T h e issue before the Florida Supreme

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Court was whether the recounts in Palm Beach, Broward, and M i a m i - Dade would be allowed to proceed. I f the Florida Supreme Court stopped those recounts, there was no way that Gore could win.

B y 2 0 0 0 , the state supreme court represented a singular part o f Florida government. Florida had a Republican governor, J e b Bush, and Republican majorities in both houses o f the state legislature. T h e only remaining Democratic power center in the state was the supreme court, where all seven members had been appointed by Democratic governors. (One justice was a joint appointment by Bush and his Democratic predecessor, Lawton Chiles.) T h e court wasn't shy about favoring a progressive—and Democratic—agenda either, as the Bush campaign soon discovered. O n Tuesday, November 2 1 , the Florida Supreme Court ruled that the recounts should proceed for the next five days and that Harris could not certify the results until Sunday, November 2 6 . Clearly, the Florida justices felt a great deal o f pique toward Harris, whose conduct they described as "unreasonable," "un­ necessary," "arbitrary," "contrary to law," and "contrary to the plain meaning o f the statute." B u t the unanimous opinion was not very well reasoned. There was no explanation for why the justices chose to extend the deadline five days—as opposed to four, or six, or any other number. In denouncing Harris for looking too political, the Florida court wound up looking political itself. S t i l l , the Gore forces were suddenly back in business.

The question, then, was whether the U . S . Supreme Court would agree to get involved, and the Bush campaign had a noted authority at close range. About two days before the argument in the Florida Supreme Court, J o h n G . Roberts J r . came to Tallahassee. T h o u g h he was only forty-five at the time, Roberts was already among the top ad­ vocates o f his generation before the justices. (Eight years earlier, George H. W. Bush had tapped Roberts for a seat on the D . C . Circuit, but Democrats in the Senate stalled the nomination into oblivion.) In Tallahassee, Roberts helped Michael Carvin prepare for his (unsuc­ cessful) representation o f Bush before the Florida justices and then ad­ vised Baker on how to get the U . S . Supreme Court to take the case. The conventional wisdom was that the justices would want no part of the controversy. B u t Roberts's gut told him otherwise. They'll take the case, Roberts vowed to Baker, and you'll win it there, too.

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It had been two weeks and a day since the election, and until this mo­ ment the controversy in Florida still seemed remote from the work of the Court. As J u d g e Middlebrooks had said, the management o f elec­ tions is traditionally governed by state law, which is in turn inter­ preted by state courts. T h e U . S . Supreme Court had no authority to tell the Florida Supreme Court how to interpret Florida statutes. Not once in the history o f their Court had the justices in Washington im­ posed themselves in the middle o f vote counting in one of the states. W h y would they do it now?

Roberts had to return to Washington to argue a different case be­ fore the Supreme Court, but following his advice, the Bush team filed its petition for certiorari on Wednesday, November 2 2 , the day before Thanksgiving. T h e Republicans essentially gave the justices a menu o f choices. T h e Republicans claimed that the Florida court violated federal laws on the conduct o f elections; that it violated Article II o f the Constitution, which suggests that state legislatures, not state courts, make the rules for presidential elections; that the recount process violated the Equal Protection and Due Process Clauses of the Constitution.

T h e secret to Olson's brief was more in tone than in substance. He played on the justices' collective vanity (not just Kennedy's), saying in essence that they were the only grown-ups in the room. All the others—especially the justices o f the Florida court—were just a bunch o f partisan hacks. Olson claimed that the Florida court opened the door to "an electoral catastrophe" and that the Supreme Court o f the United States had to step in to prevent "the ascension of a presi­ dent o f questionable legitimacy, or a constitutional crisis."

O f course, there were very good arguments in response to Olson's claims. Elections had always been run by states, not the federal courts, and Florida was merely doing what states had done for generations. They were following their own law on recounts. Counting votes had never before been seen as a violation o f the U . S . Constitution. Moreover, as a practical matter, the situation in Florida was changing day to day; by the time the justices in Washington heard arguments in this case, the facts on the ground in Florida m i g h t be very differ­ ent—which was why the Supreme Court rarely took a case until it was concluded in all respects. B u t such arguments never reached the jus­ tices, because the Republicans asked for expedited consideration of their case. They wanted the Court to rule on their cert petition before

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the Democrats even had a chance to defend the ruling o f the Florida Supreme Court.

Many litigants before the Supreme Court ask for speedy treatment, but the Court almost never grants it. Particularly during the later Rehnquist years, when the chief put such a premium on efficiency, the Court rarely deviated from its customary schedule. T h e rhythm o f its deliberations on cases seldom varied. T h e justices rarely even saw a case before all the briefs were submitted by both sides, and then they generally took weeks, i f not months, to resolve it.

B u t in the matter o f the election in 2 0 0 0 , the justices departed from their usual rules. There was no order, no regularity, no proce­ dure. The justices decided them on the fly. W h e n an old friend called Stevens to ask for a ticket to the argument o f the case, the senior jus­ tice answered dryly that he would have to follow the usual procedure on seating. "And I think that's the only procedure that's going to be followed around here," he added.

Most o f the justices were not even in the Court building on Wednesday, November 2 2 , so their clerks and the Court staff had to track them down to give them the Republicans' briefs. Many o f the law clerks had already left for the Thanksgiving holiday, so the deci­ sion on Bush's cert petition went to the justices alone. And they did not wait to hear from the Democrats to issue their decision.

As the justice for the Eleventh Circuit, Kennedy coordinated the rulings, which came in on Thanksgiving Day, November 2 3 , and the following morning, Friday, November 2 4 . T h e votes were:

Rehnquist—grant Stevens—deny O'Connor—grant Scalia—grant Kennedy—grant Souter—deny Thomas—grant Ginsburg—deny Breyer—deny

Since only four votes were needed to grant a petition, the Republicans had one more vote than necessary. T h e Supreme Court would take the case.

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Around midday on Friday, Kennedy summoned one o f the lawyers who worked in the c l e r k s office. These attorneys were career profes­ sionals (not to be confused with the individual justices' law clerks, who served for only a year) and tended to be especially wise about the ways o f the Court and skillful in predicting what the justices would do. T h e lawyer Kennedy called was so sure that Kennedy would sim­ ply say the Court had denied certiorari that he didn't even bring a pen and paper to the justice's chambers. H e could remember a single word: deny.

B u t Kennedy's first words to the lawyer were, "I hope you brought a pad."

T h e Court had done more than simply grant the writ of certiorari and the petition for expedited consideration. T h e justices also accepted two o f the three "questions presented" in the Republicans' cert peti­ tion. They were willing to hear the Bush team's arguments on whether Florida had violated federal law or Article I I o f the Constitution. B u t they did not think the argument that Florida had violated equal pro­ tection merited further consideration.

More important, though, as Kennedy dictated the Court's order, which was largely his own work, the five justices in favor o f cert had agreed on a schedule that was even faster than the one the Republicans had proposed. This alone was virtually without precedent. The jus­ tices rarely agreed to accelerate their schedule at all, but they never proposed a timetable that was even quicker than what the parties sought. Olson had asked for oral argument on December 5; Kennedy gave it to him on December 1.

Kennedy was miffed that the lawyer from the clerk's office had not come prepared for their meeting. "E-mail it back to me before you send it out, so I can check it," he said stiffly. T h e justices—five o f them, anyway—wanted this case.

B y the time o f oral argument in Bush v. Palm Beach County Canvassing Board, it was clear that the Court should not have taken the case in the first place. T h e relevant legal issue concerned Gore's "protest" o f the election results—his demands for recounts in three remaining counties before Harris certified the election results as final. During the week that the Supreme Court case was pending, only one county o f the three actually completed its recount, and in Broward, Gore net-

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ted 5 6 7 additional votes. In Miami-Dade, Bush supporters staged what became known as the "Brooks Brothers riot," and the canvass­ ing board shut down its recount. In Palm Beach, the canvassing board tried to finish counting its votes but missed Harris's deadline. In any event, on Sunday night, November 2 6 , in a solemn, nationally tele­ vised ceremony, Harris did certify the election, with Bush the winner by 5 3 7 votes. T h e Gore forces promptly filed a "contest," which was the next legal procedure, after the precertification "protest," to dis­ pute the result o f an election.

So on the morning o f Friday, December 1, the justices appeared from behind their massive red curtain to hear an argument about an election "protest" that was, by the standards of this election, ancient history. Simply put, the issue before the justices didn't matter any­ more. Still, the mood in the courtroom was chipper, almost giddy. T h e process in Florida had been so bizarre and unpredictable that there was a sense—a hope—that the Court m i g h t put it all right.

In the chair closest to the bench, the seat o f honor for spectators, was the stooped figure o f Byron W h i t e . T h e former football star looked wizened and unwell, but he, like everyone else who had the chance, didn't want to miss this (apparently) once-in-a-lifetime event.

T h e argument, however, quickly bogged down into a discussion o f minutia. As revealed by their questions to Ted Olson, O'Connor and Kennedy seemed to be having a case o f buyer's remorse, regretting that they had ever granted certiorari. As O'Connor put it, " I f it were purely a matter o f state law, I suppose we normally would leave it alone, where the state supreme court found it, and so you probably have to persuade us there's some issue o f federal law here."

Kennedy said, "We're looking for a federal issue." T h e questions for Gore's lawyer, Harvard Law School professor Laurence Tribe, were also vigorous, but mostly the justices seemed to be looking for a graceful exit.

The justices' conference took place on the same Friday afternoon as the argument. T h e justices did not take a formal vote, as they custom­ arily did, but instead resolved to try to come up with some unani­ mous decision. They knew that in such a politically polarizing moment, the Court would send a comforting signal by uniting around a single result. Anyway, the stakes were fairly low. Because the protest was already over, there wasn't a great deal that the Court could do. T h e conservatives, especially Scalia, were outraged that the Florida Supreme Court seemed to be rewriting the state election code.

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H e wanted to slap that court down, at least rhetorically. O'Connor, too, didn't like the way the Florida justices appeared to be freelanc­ ing—and helping Gore. T h e more liberal justices, especially Stevens, thought that Florida was merely doing what state courts always did— interpreting state law. Since the "contest" o f the election was already under way, Stevens and his allies thought they should just dismiss the appeal and let the process in Florida run its course.

W h e n the conference reached an ambiguous result, Rehnquist of­ ten drafted his own opinion and then tried to bring everyone around. Even with a case o f this magnitude, the phlegmatic chief didn't actu­ ally write this one himself but instead assigned a law clerk, Luke Sobota, to compose the first draft.

Rehnquist resolved to "vacate"—that is, overturn the decision o f the Florida Supreme Court—but declined to set out any new rules o f law in the decision. "After reviewing the opinion o f the Florida Supreme Court, we find that there is considerable uncertainty as to the precise grounds for the decision," the opinion stated. "This is suf­ ficient reason for us to decline at this time to review the federal ques­ tions asserted to be present." In other words, the chief was inviting the Florida court to explain itself better but not exactly ruling that it was wrong. T h i s was a shot across the bow o f the Florida justices, a warning against further activism in this case, but one with relatively little practical significance at this late date.

T h e Supreme Court's brief opinion was released on Monday, December 4 . I t was delivered not by a specific justice but rather per curiam, "by the court," a designation that the Court generally used for minor and uncontroversial opinions. I f this had been the Court's only decision in the 2 0 0 0 presidential contest, the justices' role would be remembered as a modest footnote in the story. As the justices them­ selves recognized, they never should have involved themselves in the election, but having done so, at least they did no significant harm.

T h e more important news o f December 4 took place in Tallahassee, where a local judge ruled in the Gore team's "contest." He rejected any further recounts and upheld Harris's certification o f Bush's vic­ tory. T h a t decision now headed to the Florida Supreme Court—and, ultimately, back to the United States Supreme Court.

1 2

No case engaged the justices' law clerks more than the elec­tion cases in 2 0 0 0 . Many o f them spent the crucial period in December in a frenzy o f outrage about the tactics and merits of one party or the other in the controversy. T h e question, though, is whether the clerks made any real difference in the outcome.

The first person to promote the image o f scheming and powerful law clerks was W i l l i a m Rehnquist himself. Forty-three years earlier, shortly after his own clerkship for J u s t i c e Robert H. Jackson, Rehnquist wrote an article for U.S. News & World Report asserting that "liberal" law clerks were "slanting" the work o f the Court to the left. Rehnquist said that a majority o f clerks showed "extreme solicitude for the claims o f Communists and other criminal defendants, expan­ sion of federal power at the expense o f state power, [and] great sym­ pathy toward any government regulation o f business." For many years, Rehnquist's picture o f the Court as a redoubt o f liberal clerks remained the dominant image.

Then in 1 9 9 8 , Edward Lazarus, a former clerk for Harry Blackmun, turned that image around. He saw many clerks operating in support o f a conservative agenda. In his book Closed Chambers, Lazarus argued that these right-wing clerks "self-consciously styled the Cabal," wielded "very significant power . . . for partisan ends." Reared in Federalist Society cells in law schools, they collaborated for ideological ends in the Court's cafeteria and the cheap Chinese restau­ rants of Capitol H i l l .

The truth about Supreme Court law clerks seems more mundane. Generally in their late twenties, they are top graduates o f leading law schools who have first spent a year working as clerks for lower court

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judges. (The judges who regularly place their clerks on the high court are known as "feeders.") T h e clerks review cert petitions, helping to winnow the eight thousand or so cases to the eighty or so accepted for review. They discuss the cases with their justices to prepare for oral ar­ gument, and, most notably, they write first drafts o f opinions. T h e de­ tails o f the procedure vary by justice. Thomas appoints a head clerk; O'Connor required clerks to prepare a "bench memo" summarizing the arguments in each case; Kennedy has a classroom-style prep ses­ sion with his clerks before most oral arguments; and Scalia ignores his clerks for long periods o f time. Stevens alone employs a totally differ­ ent system. H e is the only justice who does not participate in the "cert pool," which has one law clerk from the other eight chambers prepare a detailed m e m o on each cert petition. Stevens also writes his own first drafts. And Stevens, as Rehnquist did, hires only three clerks each year, while the others take four.

T h e fact that law clerks draft most opinions has given rise to sev­ eral misimpressions, particularly on the part o f the clerks themselves. Because they have this responsibility, many clerks think they are more important than they are. Supreme Court opinions are stylized docu­ ments—statements o f facts followed by legal analyses—in a format that changes little from case to case. In general, only a small part o f each opinion has any lasting significance, and the justices themselves monitor that section with care. Once Rehnquist became a justice, he developed a very different conception o f the power o f the law clerks. W i t h appealing candor, Rehnquist used to say that he felt bound less by the footnotes than by the texts o f prior opinions because the clerks usually wrote the footnotes. Most important, the justices them­ selves—alone—decide how to vote, and the votes matter more than anything else.

S t i l l , the clerks give the institution a jolt o f new energy each year and, in a way, set the tone in the building. O'Connor liked Arizonans, Rehnquist tennis players; Ginsburg favors musicians, Souter quirky intellectuals. Year by year, however, the chemistry varies. In 1 9 9 9 - 2 0 0 0 , the term before the election, everyone got along pretty well, though there was one notorious incident when a clerk pushed another into one o f the Court's fountains. During the following year—which included the recount controversy—the atmosphere was sour from day one. More than in most years, the justices on the left— especially Stevens, Ginsburg, and Breyer—had very liberal clerks, and across the ideological divide the clerks were similarly fevered in their

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views. B y the time the Court decided the first election case, the mood inside the building was poisonous. Still, once the decision in Bush v. Palm Beach County Canvassing Board was rendered, it seemed like the Court had seen the last o f the election o f 2 0 0 0 ; the justices' bland opin­ ion appeared certain to be their final word on the subject.

B u t the fight in Florida continued. Gore's "contest" o f the certified election results had gone before J u d g e N . Sanders Sauls in Tallahassee. Sauls was known as one o f the worst judges in the county—petty, vin­ dictive, and reactionary; in 1 9 9 8 , the Florida Supreme Court had even threatened to demote him because o f "the continuing disruption in the administration o f justice" on his watch. T h e assignment o f Sauls turned out to be a perverse kind o f good luck for Gore.

His conduct o f the trial, entitled Albert Gore, Jr. v. Katherine Harris, lived up to his reputation. Sauls's opinion, which was rendered in the late afternoon o f Monday, December 4 , was brief and shoddy. H e ad­ mitted that "the record shows voter error, and/or less than total accu­ racy" in the Florida voting machines but found no "reasonable probability that the statewide election result would be different" i f the votes had been correctly counted. B y nightfall, the Gore lawyers had appealed the case back to the Florida Supreme Court, which had once more become Gore's only hope.

Again, Florida law appeared to be on Gore's side. I t was clear that there were major errors in the counting o f ballots in Florida; it was clear, too, that a hand recount o f the ballots would be more accurate. B u t J u d g e Sauls had simply assumed that a recount would make no difference.

T h e lawyers returned to the Florida Supreme Court on the morn­ ing of Thursday, December 7. T h e Bush forces were projecting an air of inevitability about the result. Baker and other top aides did not even show up for the argument, their absence sending the message that the legal proceedings no longer mattered. B u t at least some o f the justices thought that Sauls had blundered badly—and that the votes still needed to be counted. T h e key issue from the beginning had involved the undervotes.

At first, one o f Bush's strongest arguments had been that checking the undervotes in only four counties—and not the other sixty-three— was inherently unfair. Now, because the election had been certified with Bush in the lead, that argument suddenly helped Gore, who was only asking the court to restart the recounts in Palm Beach and Miami-Dade. B u t the questions from the justices raised an even more

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tantalizing prospect—recounting all the undervotes in the entire state. Surely, as the questions from the justices implied, that would be the fairest way to see i f any legitimate ballots had been ignored. There were about 6 0 , 0 0 0 undervotes in the remaining counties. W h y not simply look at them all?

T h e Democrats could scarcely bring themselves to hope for so sweeping a victory, but at 3 : 5 0 p.m. on Friday, December 8, the court spokesman delivered the judgment o f the court on the steps o f the courthouse in Tallahassee. First, the court agreed that Sauls had erred in certifying the results in two counties—therefore cutting Bush's margin in Florida from 5 3 7 to 1 5 4 (or 1 9 3 ) . It would be up to Sauls, on remand, to determine whether 1 5 4 or 1 9 3 was correct. B u t the more astonishing announcement was to come. " B y a vote of four to three, the majority o f the court has reversed the decision of the trial court," the spokesman, Craig Waters, said. "The circuit court shall or­ der a manual recount o f all undervotes in any Florida county where such a recount has not yet occurred. Because time is o f the essence, the recount shall commence immediately."

T h e Florida Supreme Court had resurrected Gore from the politi­ cal dead.

T h e entire Gore legal team operated out o f a three-lawyer suite in one o f Tallahassee's lesser office buildings. (It was actually a branch of a medium-sized Fort Lauderdale law firm; several larger firms in the state declined to take Gore's case, apparently out o f fear o f offending the Republican power structure in Florida.) Initially, this threadbare operation had no cable-television hookup, no high-speed Internet connection, and no room for the dozen or so lawyers who eventually made their way to town to work for Gore.

T h e Republicans, in contrast, hired the Tallahassee office o f the second-biggest law firm in the state and then rented a sprawling of­ fice o f their own as well. (Later, they procured still another space in a location that they kept secret from the press, so they could prepare for the contest without being interrupted.) And that was just in the Florida capital. T h e Bush team was even better situated in Washington, where the center o f activity moved as soon as the Florida Supreme Court ordered the expanded recount.

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Bush's Supreme Court team, working out o f Ted Olson's offices at the firm o f Gibson, Dunn & Crutcher, had, under Baker's orders, made preparations for all eventualities. So by Friday afternoon, December 8, it already had the rudiments o f a brief asking the Supreme Court to step in and stop the recount ordered by the Florida court. T h e principal drafting was done by two o f Olson's younger partners, Miguel Estrada and Doug Cox, along with M i k e Carvin, the Washington lawyer (from another firm) who had argued for Bush in the first case before the Florida Supreme Court. Uppermost in their minds was an observation that their colleague J o h n Roberts had made earlier—that the Court would want this case. And like all other ad­ vocates before the Rehnquist Court, the Bush lawyers knew the key vote and their most important audience—Sandra O'Connor.

As always for O'Connor, the practical consequences would matter more than the legal theory, so that's where Olson and company fo­ cused their brief. "Few issues could be more important than those pre­ sented in this case. A t stake is the lawful resolution o f a national election for the office o f President o f the United States," they wrote. The Supreme Court had to intervene, and the justices couldn't just grant cert; rather, they had to issue a stay and stop the recount in Florida before matters went further out o f control. "This Court's re­ view is essential in this case in order to protect the integrity o f the electoral process for President and Vice President o f the United States and in order to correct the serious constitutional errors made by the Florida Supreme Court," Olson's team wrote. "A stay is necessary in order to prevent irreparable harm to [ B u s h ] , to the electoral process, and to the Nation as a consequence o f the flawed decision below."

T h e legal basis for Bush's position was incidental and rather weak. The principal argument concerned the obscure provision o f Article I I o f the Constitution that provides that each state shall choose electors "in such manner as the legislature thereof may direct." T h e R e ­ publicans said that it was now the Florida court—and not the legis­ lature—that was "directing" how Florida chose the winner o f the state's electoral votes. T h e sole authority for this claim was a nearly incomprehensible opinion o f the Court from 1 8 9 2 . (The Florida court had disposed o f this Article II argument by saying that it was simply doing what courts always do—interpreting Florida election law, not making it.) Almost as a throwaway, the Bush team added another claim—that the recounts violated the Equal Protection Clause o f the

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Fourteenth Amendment. Their casual attention to this argument— just three pages in a forty-two-page brief—was understandable. The Supreme Court, in granting cert in the Palm Beach case, had thought the equal protection argument was so weak that it refused even to hear argument on the issue.

Fundamentally, though, the Republicans' appeal to the Court, and especially to O'Connor, was more political than legal. T h e gist was that a court with a clear Democratic agenda was throwing the elec­ tion into chaos by making up rules. T h e Florida Supreme Court's de­ cision had been styled Gore v. Harris. B u t the lawyers in Olson's office changed the caption to the one that would be known to history: Bush v. Gore. T h e brief arrived at the clerk's office o f the Supreme Court about five hours after the Florida court's ruling—that is, at 9 : 1 8 p.m. on Friday, December 8.

Meanwhile, a little-known trial judge in Tallahassee was disproving the Republican predictions o f chaos and disorder in the recount. J u s t hours after the Florida Supreme Court had ruled, J u d g e Terry Lewis had called the parties together to work out the mechanics o f how the 6 0 , 0 0 0 undervotes would be counted around the state. (Events were moving so fast that the only available court reporter could not make it into Lewis's court, and so he monitored the hearing from home, lis­ tening to the broadcast on C-Span.)

J u d g e Lewis was as competent a local judge as his colleague J u d g e Sauls was inept. In Lewis's courtroom, Phil B e c k , a renowned Chicago trial lawyer representing Bush, zeroed in on a weakness in the Florida Supreme Court opinion. T h a t court had not laid out a single standard for the counties to use in determining whether a ballot should be in­ cluded or not. O K , Lewis asked, so what should the standard be? Beck said there couldn't be a single standard, because that would be chang­ ing the rules in the middle of the game. T h e Bush position was a per­ fect circle. There must be a standard, but there was no way there could be a standard.

Undeterred, Lewis came up with a plan. Shortly before midnight on Friday night, Lewis said that vote counting would commence in the Leon County public library on Saturday morning at eight. (Many o f the ballots had already been transferred to Tallahassee.) All other

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counties were to send him a plan by noon. All counting was to be completed in a little more than a day, by two on Sunday afternoon, December 1 0 . Lewis would remain in his office throughout the week­ end to settle any disputes.

B y dawn on Saturday, something remarkable was occurring. Working through the night, both the Gore and Bush campaigns had assembled and sent teams to each o f the state's counties to monitor the vote counting. Across the state so many judges volunteered that Lewis was able to use them to replace all the county workers who had been planning to supervise the counting. A t 9:51 a.m., the chief judge ad­ ministered an oath to the vote counters in the Tallahassee library. A t 10:07 a.m., the counting began. There were four tables, with two judges at each one. Before them were five boxes, each with a different marking: BUSH, G O R E , O T H E R , N O V O T E , CONTESTED. ( J u d g e Lewis

would review the ballots in the last box.) Similar scenes were taking place all over the state.

From the beginning, the core o f the Bush argument was that the Florida Supreme Court had created an anarchic mess in an effort to let the Democrats steal the election. B u t on Saturday morning, judges and county workers o f all political persuasions were refuting that proposition. Quietly, efficiently—to be sure, imperfectly—they looked at the ballots and counted the votes. B y noon that day, Terry Lewis's deadline o f the following afternoon looked like a reasonable target for completing the recount.

As it happened, one of O'Connor's clerks—one o f the few who had good relations with both his conservative and his liberal colleagues— was throwing a party on Friday night at a bar in the Adams Morgan neighborhood o f Washington. Many law clerks stopped in for a few drinks before returning to work to read Bush's brief, which they knew would be coming.

Back at the Court, alcohol made a contentious environment even more volatile. In the chambers o f the conservatives, there was a raw, consuming anger at the Florida Supreme Court. T h e justices in Tallahassee had never responded to the questions that the justices in Washington had asked in their Palm Beach opinion o f December 4 . Bad enough that they were trying to steal the election for Gore, the

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clerks on the right were saying, but they were defying the U.S. Supreme Court as well. How dare they jump back into the election without first responding to their superiors on the high court?

U p to this point, the Court had managed to hang on to a strained public unanimity. T h e only opinion in the case so far had been the brief per curiam in Palm Beach. B u t the veneer of bipartisanship dis­ appeared on Friday night. Scalia was first to respond to the Bush brief, and his anger was searing. H e thought the Florida court was con­ temptuous, defiant, and out o f control; it had to be stopped. In a m e m o to the other justices, he said he didn't just want to grant Bush's request for a stay o f the recount. Scalia wanted to issue a stay, grant certiorari on Bush's appeal, and summarily reverse the Florida Supreme Court—all by Saturday morning and all without hearing any oral argument at all. T h e conservative chambers were coordinat­ ing overnight, and each one took a different part of the argument— Article I I , statutory, equal protection.

B y late on Friday, there were five votes for a stay—Rehnquist, O'Connor, Scalia, Kennedy, and Thomas. For a while that evening, it even looked like the Court m i g h t adopt Scalia's view and reverse the Florida decision without an argument, but Stevens, the senior justice in the minority, prevailed upon Rehnquist at least to schedule a con­ ference on the issue for Saturday. Reluctantly, the chief agreed. At first, Rehnquist put the conference down for 1:00 p.m., but Scalia, who was itching to shut down the recount as soon as possible, con­ vinced the c h i e f to move it up to 1 0 : 0 0 a.m.

In a brief, uncomfortable meeting on Saturday, December 9—as the vote counting was beginning in Florida—the justices gathered in the chief's conference room. Scalia still wanted to reverse without ar­ gument, and so did Rehnquist and Thomas. O'Connor and Kennedy were willing to hear the parties in the case, but they maintained their vote in favor o f a stay. T h e four others—Stevens, Souter, Ginsburg, and Breyer—dissented. Again, they made the point that had come up in the first case. W h y not let the vote count proceed? Maybe Bush would win anyway. B u t the majority wouldn't budge. Rehnquist drafted an order o f just one page. Stay granted. Oral argument on Monday, December 1 1 . Stevens said he would be filing a dissent.

B a c k in his chambers, the elderly Chicagoan sat in front of the key­ board and tapped out three long paragraphs. Before deciding to make a unanimous Court in Palm Beach, Stevens had prepared a dissent in that case, so he was working off a partial draft. In typically rhythmic

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and elegant prose, Stevens wrote, "To stop the counting o f legal votes, the majority today departs from three venerable rules o f judicial re­ straint that have guided the Court throughout its history. O n ques­ tions of state law, we have consistently respected the opinions o f the highest courts o f the States. On questions whose resolution is com­ mitted at least in large measure to another branch o f the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. T h e majority has acted unwisely." The counting o f legal votes, Stevens insisted, could never constitute an "irreparable harm"—which stays are supposed to prevent.

Scalia had not planned to write anything and to let the stay speak for itself, but he was enraged by Stevens's dissent, so he sat down at his desk to respond. (He was so angry that he delayed the issuance o f the stay by taking the time to write, even though he was the one who thought speed was so essential.) His own three-paragraph concurring opinion proved the success o f the Republicans' legal strategy—which was far more political than legal. T h e Republicans had successfully portrayed the Florida court as partisan more than principled, but Scalia betrayed the same bias, albeit in favor o f the other side. "The counting o f votes that are o f questionable legality does in my view threaten irreparable harm to [ B u s h ] , and to the country, by casting a cloud upon what he claims to be the legitimacy o f his election," Scalia wrote. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance demo­ cratic stability requires."

In normal circumstances—in all other circumstances—the Court would never have considered something so vague as the casting o f clouds as amounting to a genuine legal harm, much less one that re­ quired the extraordinary step o f issuing a stay. Moreover, in the com­ plex tangle o f litigation, the Eleventh Circuit Court o f Appeals, in a preliminary ruling on the appeal o f the federal decision by J u d g e Middlebrooks in Miami, had prohibited Harris from certifying any­ one other than Bush as the winner o f the state. So the only possible harm was that Florida m i g h t count its votes and Gore m i g h t pull ahead; as long as the Eleventh Circuit decision stood, Gore could not win the state. B u t for Scalia, that political problem for B u s h — t h a t the vote count might look embarrassing for a while—amounted to

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"irreparable harm." Scalia was looking at the election entirely through Bush's eyes; by his own words, the justice was clearly more concerned about producing a clean victory for the Republican than about deter­ mining the will o f Florida's voters. Notably, Scalia's concurring opin­ ion was so extreme that no other justice joined it.

At 2 : 4 0 p.m. on Saturday, the public information staff of the Supreme Court summoned the reporters who were keeping vigil and distributed the Court's order. T h e decision o f the Florida Supreme Court was stayed. Cert was granted. Briefs were due the following day. Argument before the justices would take place in less than forty- eight hours, on Monday, December 1 1 , at 1 1 : 0 0 a.m. Never in its his­ tory had the Supreme Court worked so fast.

A t his home at the Naval Observatory, Gore passed the news to his family and watched the coverage on television. At 3:11 p.m., he sent a BlackBerry message to his chief spokesmen, Mark Fabiani and Chris Lehane: "Please make sure that no one trashes the Supreme Court."

PERFECTLY CLEAR

By the morning o f Sunday, December 1 0 , when the briefs were due in Bush v. Gore, television cameras had already taken up positions on the sidewalk in front o f the building. So much news had come out o f the Court so fast that every news organization wanted to be ready. The press o f media attention was so great that the Court's police warned the justices to keep their curtains drawn be­ cause a high-powered lens m i g h t be able to read the words on a page.

Inside the building, the clerks were all id—consumed by rage. Each side was thinking the same thing about the other: They're trying to steal the election. Bad as relations had been earlier in the year—and earlier in the week—things were far worse now.

As for Stephen Breyer, he was still all superego. Sure, things looked bad now, but logic—his logic—would prevail. H e never gave up hope, not on this case or any other. True, a majority o f the Court had granted a stay—which meant, under the legal standard, that it was "likely" that they would also rule for Bush on the merits o f the case. B u t that didn't settle the issue, at least not for Breyer. H e had an al­ most messianic belief in the power o f reason, and he never despaired about the ability o f his colleagues to see the l i g h t — o r his own ability to persuade them to see it.

Besides, Breyer wasn't so far from the conservatives on Bush v. Gore. As a former professor, Breyer could talk the language o f legal doctrine and rhetoric as well as anyone, but he also had a bit o f the pol in him, too. And Breyer the pol didn't like what the Florida Supreme Court had done. To him, the justices in Tallahassee looked like they were trying too hard to help Gore. Worse, Breyer thought their failure to set a standard for the recount made their motives even more suspect.

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H e didn't particularly care i f one described the problem as one o f due process or equal protection or any other legal category. He thought what the Florida justices had done didn't pass the smell test, and that was what mattered to him.

B u t Breyer had a simple solution: remand the case back to the Florida Supreme Court, order those justices to set a clear standard for the whole state, and then recount the votes. Breyer loved compro­ mise—and he thought this was a good one.

So, on Sunday, Breyer sent his law clerks out on reconnaissance missions to identify potential converts from the majority. There were really only two candidates. Publicly and privately, Rehnquist, Scalia, and Thomas had made their positions clear. They were outraged by what the Florida justices had done, and they wanted to bring the elec­ tion to a close. There was no chance they would change their minds.

Breyer looked to O'Connor and Kennedy. W i t h O'Connor, on this occasion, Breyer made the same mistake that so many others did about her jurisprudence. J u s t because she was usually in the middle didn't mean that she had trouble making up her mind. And O'Connor had made up her mind about Bush v. Gore—firmly. She thought Bush should win, the case as well as the election. I f there was anything O'Connor had learned growing up on a remote ranch, it was self- sufficiency; people had no right to blame anyone else, including the government, for their own mistakes. She had convinced herself that the root o f the issue in Florida was simply that some voters hadn't fig­ ured out how to cast their ballots the right way. In her view, it wasn't the job o f election officials—or the courts—to puzzle over the true meaning o f ambiguously marked ballots. I f the voters didn't bother to learn how to vote correctly, the state shouldn't try to figure out what these hapless souls meant to do. As for the Florida Supreme Court, those justices just looked like a bunch o f Democratic hacks to O'Connor.

Never mind that Florida law called for vote counters to determine the intent o f the voters—or that state law also empowered the Florida courts to make that process work. (The Florida courts once ordered a county to count the ballots o f voters who used a pen, rather than the required number 2 pencil, to mark their ballots.) Never mind, too, that many ballots were incomplete because o f defective voting ma­ chines, not incompetent voters. O'Connor had simply run out o f pa­ tience. In part, she was responding to her perception o f the public mood. She thought that the American people were fed up with the

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whole controversy and, like her, wanted it over. (In fact, polls showed only a slight majority in favor o f ending all recounts and considerable support for a complete recount in Florida.) In any case, Breyer's power of persuasion failed. O'Connor was voting to reverse. Later, Souter made an unusual personal appeal for O'Connor's support in the case. O'Connor, like Ginsburg, had a special fondness for the reclusive bachelor justice, but his advocacy didn't work this time, either.

On Sunday, a few liberal clerks thought O'Connor m i g h t have to leave the case. As David Margolick first reported, a Ginsburg clerk whose brother worked for the Wall Street Journal learned that the pa­ per would be disclosing in Monday's edition the remarks O'Connor had made at the election night party at the Stoessel home. Perhaps, the liberal clerks wondered, she would now recuse herself from the case, because she had indicated so clearly that she wanted Bush to win the election. B u t the clerks misjudged O'Connor—and the law. O'Connor's comments at the party, while peculiar, hardly displayed a bias in this particular lawsuit, and anyway, there was no way that she was going to walk away from a case o f this magnitude.

Kennedy was a different story—perhaps. It had not been an easy term for him. A few weeks before the election, he had been assigned the opinion in Legal Services Corp. v. Velazquez, a case where he joined the four liberals—Stevens, Souter, Ginsburg, and Breyer—in striking down a law that barred legal services lawyers from challenging the constitutionality o f welfare laws. (Congress had passed the law to halt what it regarded as liberal political activism by government-funded lawyers.) Kennedy had filled his first draft with such flowery language about the First Amendment and the importance o f lawyers that he faced a rebellion from his colleagues. They wanted him to tone down his meaningless rhetoric. Kennedy did, reluctantly. Now, in Bush v. Gore, the same quartet o f liberals needed Kennedy's vote, this time for incalculably higher stakes.

For the justices, Sunday, December 1 0 , was mostly quiet. A few clerks came into the building to wait for the briefs, which were sent by messenger to the justices' homes. T h e full Court didn't gather again until Monday morning at eleven, when they would hear from the lawyers in the election cases for the final time.

It had been just ten days since the first argument before the jus­ tices, but the courtroom seemed like an entirely different place on December 1 1 . T h e cheerful buzz o f December 1 had been replaced by a sullen hum. (Byron W h i t e did not return to watch the second argu-

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ment. A few weeks later, he closed his office in Washington and moved back to Colorado. H e died in 2 0 0 2 at the age of eighty-four.) A t the first argument, in the Palm Beach case, it had seemed possible that the Supreme Court would rise above the political sniping that had characterized the battle o f Florida. B u t halting the recount made the justices look like another set o f partisans. For the Court, any pre­ tense o f impartiality, much less nobility, had vanished.

Having won the stay, Ted Olson had now, in effect, to run out the clock. I f he could stay out o f trouble during oral argument, he would probably win the case (and the election) for his client. B u t Kennedy surprised him with the first question: "Can you begin by telling us our federal jurisdiction? Where's the federal question here?" This was the point the Gore lawyers had been making all along—that the elec­ tion was fundamentally a state matter, which should never have wound up before the U . S . Supreme Court. Olson replied evenly that the Florida Supreme Court had violated Article II o f the Constitution, which said state legislatures, not state courts, must make the rules for presidential elections. B u t Kennedy came back with another o f Gore's arguments: "To say that the legislature o f the state is unmoored from its own constitution and it can't use its courts . . . has grave implica­ tions for our republican theory o f government."

Was Kennedy switching sides? N o t necessarily, because a few mo­ ments later, he jumped in with what he apparently regarded as a bet­ ter argument for Bush, saying, "I thought your point was that the process is being conducted in violation o f the Equal Protection Clause and it's standardless." T h a t too, Olson agreed.

Breyer took Kennedy's question as an invitation to make a play for his vote. I f the problem was that the Florida Supreme Court didn't set a standard for counting the undervotes, why couldn't they just set a standard now? O r have the Florida courts set one? O r Katherine Harris? Then the recount could begin again, right? Olson grudgingly conceded that a new standard m i g h t work. Souter made a similar point. W h y not just set a new standard and restart the recount?

Joseph K l o c k , a prominent Miami lawyer who was representing Harris, went next and gained a measure o f immortality for his lack of grace under pressure. In answer to a question from Stevens, Klock called him "Justice Brennan." (Brennan had been gone from the Court for ten years and dead for three.) A moment later, responding to Souter, K l o c k called him "Justice Breyer." Frustrated, Souter sighed, to much laughter, and quipped, "I'm J u s t i c e Souter. You'd better cut

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that out." Never one to let another justice steal the spotlight, the next voice from the bench said, "Mr. K l o c k ? I'm Scalia!"

Gore had switched lawyers for the second argument, replacing Laurence Tribe, the Harvard law professor, with David Boies, the New York lawyer who had won both cases in the Florida Supreme Court. "I did not find, really, a response by the Florida Supreme Court to this court's remand in the case a week ago," O'Connor said to Boies. "And I found that troublesome." As for the controversy over the stan­ dard, O'Connor didn't understand the fuss: " W e l l , why isn't the stan­ dard the one that voters are instructed to follow, for goodness' sake? I mean, it couldn't be clearer. I mean, why don't we go to that stan­ dard?" In oral arguments, O'Connor's chaste exclamations—my good­ ness!, oh dear!, and the like—were surefire clues to the way she was voting.

In oral argument, Boies didn't have his best day. Souter repeated his concern about the lack o f a standard in the Florida decision (and the possibility that different counties m i g h t adopt different rules), but he was also looking for a way to restart the count. H e said to Boies, "We've got to make the assumption, I think, at this stage, that there may be such variation, and I think we would have a responsibil­ ity to tell the Florida courts what to do about it. O n that assumption, what would you tell them to do about i t ? "

Boies hesitated. " W e l l , I think that's a very hard question"—which produced nervous laughter in the audience. Actually, it wasn't a hard question. T h e Supreme Court could simply set a standard or instruct the Florida court to set one.

There was a better answer, and Stevens jumped in and provided it. "Does not the procedure that is in place there contemplate that the uniformity will be achieved by having the final results all re­ viewed by the same judge?" Under the Florida decision, J u d g e Lewis in Tallahassee was going to monitor all controversies over the ballot counting. T h e review by a single judge would take care o f any dispar­ ities. Boies had the wit to grab for Stevens's lifeline, saying, "Yes, that's what I was going to say, Your Honor."

Olson had only a few minutes for his rebuttal, and he did what good oral advocates always do—he shifted his argument in the direc­ tion his audience was already going. H e had started by focusing on Article I I , but he sensed more interest than he expected in equal pro­ tection. Several justices—among them O'Connor, Kennedy, Souter, and Breyer—were concerned about the possibility o f different stan-

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dards in different counties. "There is no question, based upon this record, that there are different standards from county to county," Olson said. "And that will happen in a situation where the process is ultimately subjective, completely up to the discretion o f the official, and there's no requirement o f any uniformity. Now we have some­ thing that's worse than that. W e have standards that are different throughout 6 4 different counties. We've got only undercounts being considered where an indentation on a ballot will now be counted as a vote, but other ballots that may have indentations aren't going to be counted at all." W i t h those remarks in their ears, the justices retreated to their conference.

I t was not a normal conference. Because o f the urgency, the justices had already exchanged several memos on the case, even before oral ar­ gument. So by the time they met with one another, it was clear that Rehnquist, Scalia, Thomas, and (almost certainly) O'Connor were committed to reversing the Florida Supreme Court. Stevens and Ginsburg would affirm, and Souter and Breyer were also looking for a way to keep the recount going. Kennedy had circulated a memo ear­ lier that suggested strongly that he agreed with the conservatives, but at the conference he temporized, leading both sides to believe that they m i g h t get his vote.

After the conference, on Monday afternoon, Stevens made the first bid for Kennedy's support. Realizing that Kennedy considered the ab­ sence o f a single standard in the recounts to be a problem, Stevens drafted an order o f just a few sentences remanding the case to the Florida Supreme Court for the setting o f a statewide standard to con­ tinue the recount. H e sent his messenger scurrying down the marble hallway to Kennedy and the rest o f the justices. He heard nothing back, except from Ginsburg, who said she would join i f it was a way o f bringing the whole Court together. (The rush o f events in Bush v. Gore strained the Court's technology, which was, in 2 0 0 0 , still rather primitive. As a security precaution, the e-mail system circulated only within the building. Plus, there was only a single, communal com­ puter from which the justices and clerks could obtain access to the Internet. Because only Thomas and Breyer used computers regularly at the time, there was little pressure from the justices to update. For

T H E N I N E 7 7 7

the most part, the justices communicated with one another by hand- delivered memos, which were typed by their secretaries.)

As he often did, Rehnquist set out to write an opinion for the Court, even without a clear commitment that it would command a majority. He grounded it in Article I I , rejecting the Florida court's at­ tempt to change the legislature's plan for the election. B u t as the c h i e f wrote, he knew he had only four votes for sure—his own, Scalia's, Thomas's, and (almost certainly) O'Connor's.

It all came down to Kennedy, which was as he preferred. T h e mag­ nitude of the occasion suited Kennedy's taste for self-dramatization. B y Monday afternoon, after Rehnquist had circulated his draft o f an opinion, Kennedy decided that he would try to write one himself. He thought Rehnquist's reliance on the obscure section o f Article I I did not comport with the magnitude o f the issue at stake. Instead, Kennedy would strike down the Florida court's ruling on equal pro­ tection grounds. In a peculiar way, Breyer's advocacy for the middle road turned out to hurt his cause rather than help it. In Kennedy's mind (and, later, O'Connor's), Breyer and Souter's misgivings about the Florida Supreme Court's decision made opposition to it more re­ spectable. O'Connor in particular did not relish the idea o f joining with the three conservatives in such a politically charged case. B y sid­ ing with Kennedy in a position that at least resembled Breyer and Souter's view o f the case, O'Connor could convince herself that she was safely in the middle o f the Court.

Into Monday night, Kennedy and O'Connor and their clerks col­ laborated on a draft opinion, drawing largely from the memos they had written in the two election cases over the previous two weeks. (Scalia paid a rare visit to them both that day to encourage their joint effort.) They took the statement o f facts from the draft that Rehnquist had circulated and then built their own equal protection argument. B y early evening, Kennedy was happy with what he had produced. His vote was now secure. His clerks passed word to the Stevens cham­ bers that Kennedy would not be joining his opinion. W i t h that, Stevens decided he would keep his plane reservation for Florida the following morning, December 1 2 . H e could finish his dissent on the telephone with his clerks.

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T h e Equal Protection Clause suited Kennedy's romantic conception of the work o f the Supreme Court. T h e provision was the source o f some o f the Court's most dramatic and historic rulings, like Brown v. Board of Education in 1 9 5 4 and Reynolds v. Sims in 1 9 6 4 , which established the rule o f "one person, one vote" in legislative districting. Kennedy's own best-known ruling involved equal protection; in 1 9 9 6 , he had written for a six-justice majority in Romer v. Evans that Colorado could not ban its cities from passing laws to protect homosexuals. Kennedy was no liberal, to be sure, but neither was he afraid to use the Constitution as an engine to guarantee equal treatment o f all people.

So it wasn't surprising that Kennedy embraced equal protection more than the opaque and technical Article I I grounds o f Rehnquist's opinion. Taken in its most charitable light, Kennedy's opinion in Bush v. Gore could be said to extend the principle o f "one person, one vote" from the question o f how districts are apportioned before the election to the question o f how votes are counted after the election. As Kennedy wrote, "The right to vote . . . is fundamental, and one source o f its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter." (Dignity is a favorite Kennedy word.) Counties had different rules about whether "dimpled chads" should be counted; individual counties sometimes changed the standard in the middle o f a recount. "This is not a process with suffi­ cient guarantees o f equal treatment," Kennedy wrote starchily.

T h e problem with Kennedy's analysis, as innumerable commenta­ tors subsequently pointed out, was that no court, much less the Supreme Court, had ever before imposed any kind o f constitutional rule o f uniformity in the counting o f ballots. Most states, including Florida, used different voting technologies in a single election. Kennedy was right that the recount m i g h t have produced inconsis­ tencies and anomalies. B u t he was wrong on the larger, far more im­ portant point. A recount would have been more accurate than the certified total. T h e Court's opinion preserved and endorsed a less fair, and less accurate, count o f the votes.

O'Connor realized the problems with Kennedy's equal protection analysis. Even at the> oral argument, she raised some o f them herself in her final questions for Olson, who had emphasized the difficulty o f having "different standards from county to county." O'Connor replied, " W e l l , there are different ballots from county to county, too, Mr. Olson, and that's part o f the argument that I don't understand. There are machines; there's the optical scanning. And then there are

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a whole variety o f ballots; there's the butterfly ballot that we've heard about and other kinds o f punch card ballots. How can you have one standard when there are so many varieties o f ballots?"

Still, in the end, O'Connor discounted her own apt summary o f the issue. Notwithstanding her recognition o f the problems with the equal protection argument, O'Connor decided to sign on. B u t she did so in characteristic fashion. Her position was really a version o f Breyer's—that the process just didn't sound fair, and it needed to be stopped. To O'Connor, equal protection was a more moderate- sounding way o f doing it than Rehnquist's Article I I approach. B u t unlike Kennedy, O'Connor had an aversion to grand pronouncements; she liked opinions narrowly tailored to the facts before the Court, and that was especially true o f Bush v. Gore. She didn't want to be making a lot of new law that might come back to haunt the Court in future cases. So late on Tuesday morning, December 1 2 , as Kennedy's opin­ ion was starting to be put into final shape, O'Connor told Kennedy she wanted it clear that this opinion would not be creating a whole new set o f rights and regulations for elections.

Kennedy responded by adding what became the most notorious sentence in the opinion—indeed, a single sentence that summed up so much o f what was wrong with what the Court did. "Our consider­ ation is limited to the present circumstances," Kennedy wrote, "for the problem o f equal protection in election processes generally pre­ sents many complexities."

In other words, the opinion did not reflect any general legal prin­ ciples; rather the Court was acting only to assist a single individual— George W. Bush. T h a t was not what Kennedy meant, but that was what he wrote. T h e sentiment amounted to a natural consequence o f the Court's misbegotten encounter with the 2 0 0 0 election. T h e busi­ ness o f the Supreme Court is to take cases that establish principles o f general application. B u t as Kennedy's sentence all but conceded, there was no general principle in Bush v. Gore—only a specific designation o f the winner o f one election. More than any other, this sentence in­ vited skepticism about the majority's true motives in the case.

B y midafternoon on Tuesday, as the four justices in the minority circulated their dissenting opinions, tempers grew even shorter. Ginsburg had devoted her professional career to the use o f the Equal Protection Clause o f the Fourteenth Amendment, and it galled her to see that provision perverted by Kennedy's opinion. In a late draft o f her dissent, Ginsburg drew on certain early press reports about the

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black vote in Florida to suggest in a footnote that, i f there was any equal protection violation by the state, it was more likely by state and local authorities than by the Florida Supreme Court. T h e footnote sent Scalia into a rage, and he replied with a memo—in a sealed en­ velope, to be opened only by Ginsburg herself—accusing her o f "foul­ ing our nest" and using "Al Sharpton tactics." Ginsburg backed down and removed the footnote.

Still, the cumulative effects o f the dissents worried Kennedy and O'Connor. They needed to show that their views were not as out­ landish as the dissenters made them seem. So they decided to seize on the fact that Souter's and Breyer's opinions (which Stevens and Ginsburg joined in substantial part) said the case should be remanded to the Florida Supreme Court for the setting o f a standard. Kennedy wrote, "Eight Justices o f the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. T h e only disagreement is as to the remedy." The statement was borderline disingenuous. In truth, the main point of Stevens's, Souter's, and Breyer's opinions was that the recounts should continue, not that they had "problems."

Stevens was already in Florida, but his clerks screamed at Ken­ nedy's clerk that the sentence distorted Stevens's opinion. (In the con­ fusion o f the moment, they actually yelled at the wrong clerk, not the one who had responsibility for Bush v. Gore.) In response to the tirade from the Stevens chambers, Kennedy changed the reference to "Seven J u s t i c e s . " Souter and Breyer would have been within their rights to protest as well, but they decided not to bother. That was a mistake. As a result o f this sentence, as Kennedy intended, Bush v. Gore is of­ ten referred to by its supporters as a 7 - 2 case. In truth, it was never anything but 5—4.

T h e crisis o f Bush v. Gore came upon the Court so quickly that the normal flow o f business continued unabated, sometimes with comic results. A t about nine in the evening on Tuesday, as the last o f the opinions were being proofread before being sent to the printer in the basement, a court o f appeals law clerk named Anil Kalhan showed up in advance o f an interview with O'Connor that was scheduled for the next day. Kalhan thought he would visit friends who were already clerking. B u t his arrival outraged several other law clerks, who thought that an outsider like Kalhan could not be trusted to keep the result in Bush v. Gore secret. Some suggested, in apparent seriousness,

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that Kalhan be "detained," so he could neither leave nor call outside the building. In any event, no one told Kalhan the result, and he drifted into one o f the conference rooms where televisions had been set up to watch the media reports on the announcement. H e was not detained, and neither did he get the clerkship.

Over the course o f the day, the usual crew o f about a dozen regu­ lars in the Supreme Court pressroom had been joined by about fifty other reporters. At 9 : 4 0 p.m., Ed Turner, the Court's deputy public information officer, entered the room and announced, "We're going to make a line." H e read out the names o f the permanent members o f the Supreme Court press corps, and they dutifully queued up in the mar­ ble hallway. T h e newcomers stacked up behind them. A t 9 : 5 2 , the large cardboard boxes o f opinions appeared, and the line moved at the nervous, half-running pace o f paratroopers jumping out o f a plane. Members o f the public information staff had arranged for reporters to make a quick exit to the street through the door o f the Supreme Court gift shop. T h e television reporters sprinted across the plaza to their camera positions on the First Street sidewalk.

Flipping madly through the pages, the correspondents struggled to make sense o f the ruling. Because o f the rush, the clerk's office did not prepare a summary, which is customary at the beginning o f all Supreme Court opinions. T h e journalists' confusion was understand­ able, as the Court's chaotic process was reflected in its finished prod­ uct. Its opinion, largely written by Kennedy, was again labeled per curiam, "by the court," which was the designation the justices usually used for uncontroversial rulings. Rehnquist insisted on its use here because the final opinion o f the Court had been jointly assembled and the phrase would give a pretense o f unanimity to the Court's action. The end o f the per curiam stated that the case was "remanded for fur­ ther proceedings not inconsistent with this opinion." T h a t was a fa­ miliar phrase in the Court's jurisprudence, but its meaning was, at first, unclear in the context o f Bush v. Gore. D i d it mean the recounts could continue? Foggy thinking by the Court had produced muddy writing, but closer parsing eventually showed that the answer was no.

Inside the Court, televisions had been set up in a pair o f nearby conference rooms for the law clerks. T h e liberals migrated to one gathering, the conservatives to the other. N o t surprisingly, the two rooms split close to evenly, like the rest o f the country on this night. T h e liberals had Thai food and beer; the conservatives pizza and

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Scotch. They were unanimous only in their hooting derision for the television reporters. None o f the justices came to watch; instead they made their way to their cars and drove home.

It had been at least twenty-five years since the nation turned its collective attention to the Supreme Court to resolve a question o f such importance. In 1 9 7 4 , the justices had risen to the occasion when, in United States v. Nixon, they unanimously ordered the president to turn over the W h i t e House tapes and, in a larger sense, comply with the rule o f law. Here, in a moment o f probably even greater significance, the Court as an institution and the justices as individuals failed. Indeed, their performance on this case amounted to a catalog o f their worst flaws as judges.

In one respect, though, the Court received unfair criticism for Bush v. Gore—from those who said the justices in the majority "stole the election" for Bush. Rather, what the Court did was remove any uncer­ tainty about the outcome. I t is possible that i f the Court had ruled fairly—or, better yet, not taken the case at all—Gore would have won the election. A recount m i g h t have led to a Gore victory in Florida. It is also entirely possible that, had the Court acted properly and left the resolution o f the election to the Florida courts, Bush would have won anyway. T h e recount o f the 6 0 , 0 0 0 undervotes might have resulted in Bush's preserving or expanding his lead. T h e Florida legislature, which was controlled by Republicans, might have stepped in and awarded the state's electoral votes to Bush. And i f the dispute had wound up in the House o f Representatives, which has the constitutional duty to re­ solve controversies involving the Electoral College, Bush might have won there, too. T h e tragedy o f the Court's performance in the election o f 2 0 0 0 was not that it led to Bush's victory but the inept and unsavory manner with which the justices exercised their power.

There was only one bright spot in this dismal panorama. J o h n Paul Stevens's dignified, clearheaded, and insistent eloquence honored the Court. Alone among the justices, Stevens was consistent and logical and constitutionally sound in his thinking. From his home in Fort Lauderdale, he composed a peroration that serves as the best epitaph for this sorry chapter in the Court's history: "The {per curiam opin­ ion] by the majority o f this Court can only lend credence to the most cynical appraisal o f the work o f judges throughout the land. It is con­ fidence in the men and women who administer the judicial system that is the true backbone o f the rule o f law. T i m e will one day heal the wound to that confidence that will be inflicted by today's decision.

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One thing, however, is certain. Although we may never know with complete certainty the identity o f the winner o f this year's Pres­ idential election, the identity o f the loser is pellucidly clear. I t is the Nation's confidence in the judge as an impartial guardian o f the rule of law." (At the last moment, one o f Stevens's clerks prevailed on him, just this once, to give up his favorite word—pellucidly—and substi­ tute the more familiar perfectly, which is how the famous sentence now reads.)

W i t h one exception, the justices tried to put Bush v. Gore behind them and resume business as usual. Three weeks later, Scalia and Ginsburg followed their custom o f welcoming the New Year with each other's families. Breyer, characteristically, made a systematic effort to take many o f the disappointed liberal law clerks to lunch. In restaurants, often at embarrassingly high decibels, Breyer urged the young lawyers to maintain their faith in the Court and believe that their views m i g h t someday return to favor. O'Connor tried to avoid discussing the case. Kennedy pretended the whole matter was no big deal.

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn't just that they had im­ mediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they min­ gled in Washington, where cynicism about everything, including the work o f the Supreme Court, was universal. Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn't. His whole life was being a judge. H e came from a tradition where the independence o f the judiciary was the founda­ tion o f the rule o f law. And Souter believed Bush v. Gore mocked that tradition. His colleagues' actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. T h a t the Court met in a city he loathed made the decision even harder. At the urging o f a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

PART

T H R E E

1 4

"A PARTICULAR SEXUAL ACT"

When the justices returned following their Christmas break, in January 2 0 0 1 , their docket for the rest o f the term finally vindicated Souter's prediction from the previous fall: it was a boring year.

The relief was especially pronounced because the criticism o f Bush v. Gore left some o f the justices shell-shocked. It was one thing to be called wrong, or even reactionary and right-wing—that was rou­ tine—but this time critics went after the justices' motives and their integrity. T h e decision was called a sham, a political fix, a putsch.

T h e backlash against the decision affected those in the majority in different ways. Rehnquist, who was older than most o f his colleagues and more disengaged from contemporary political life, ignored the hubbub. Scalia, who loved a fight, welcomed this one, too. (Notably, Scalia rarely defended Bush v. Gore on its own stated terms but rather as a necessary intervention in an out-of-control election—as a tourni­ quet applied to the body politic. "We had to do something, because countries were laughing at us," Scalia would tell audiences. "France was laughing at us.") Thomas found only vindication in the outrage at Bush v. Gore.

O'Connor, in contrast, never treasured her role in the decision. She valued her place as the Court's moderate center, and her association with a decision regarded by many as a partisan outrage made her queasy. Like Scalia, O'Connor would rarely defend the decision on its merits. W i t h a nervous, revealing intensity, she would cite the results o f the recounts conducted by the news media as supposed proof that Bush v. Gore had not mattered as much as its critics claimed. O'Connor did not voice regret for her vote—such soul-searching was

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definitely not part o f the O'Connor style—but neither did she enjoy the memory o f the case.

O f the five justices in the majority, Kennedy had the hardest time with the aftermath o f Bush v. Gore. H e had spent most of his adult life as a judge, and he had a special reverence for the profession, "the guild o f judges," as he sometimes called it. There would be, it turned out, two Anthony Kennedys on the Supreme Court—the one before December 1 2 , 2 0 0 0 , and the one after—and his transformation was surely one o f the most unexpected legacies o f this epochal case.

T h e J u s t i c e Kennedy o f the post-Bush v. Gore era was shaped by one influence in particular—his exposure to foreign law and foreign judges. After 2 0 0 0 , in part to escape the political atmosphere in Washington, Kennedy deepened his commitment to the broader world, and his journeys changed him. Given Kennedy's pivotal role, the Court and the nation would never be the same. T h e paradox of Bush v. Gore is that the justices' gift o f the presidency to a conserva­ tive sent the Court in its most liberal direction in years.

On the surface, few justices in recent history arrived at the Supreme Court from a more provincial background than Kennedy. W h e n President Reagan nominated him to the Supreme Court in 1 9 8 7 , Kennedy was fifty-one and still lived in the house where he grew up in Sacramento.

B u t that picture o f Anthony K e n n e d y — o f a provincial lawyer teth­ ered to the same small city for his entire life—was misleading. Kennedy's inclinations were hardly those o f an insular man. W h i l e he was a teenager, his uncle, an oil driller, hired him to work summers on rigs in Canada and Louisiana. Before he graduated from college, Kennedy spent several months studying at the London School o f Economics, where he reveled in the range o f student opinion and the vehemence o f political debate. As a young lawyer, even though his firm in the California capital was small, he developed a robust inter­ national practice. Kennedy traveled to Mexico so often on business that he became one o f a handful o f American lawyers to obtain a li­ cense to practice there, where he helped a client establish one of the first maquiladoras—American-owned factories.

Kennedy's father had been a legendary lobbyist in Sacramento, best known for his rousing advocacy (and entertaining) on behalf o f the

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California liquor industry, among others. Tony Kennedy hung on to the client for his firm, but he cultivated a very different persona around Sacramento—that o f a professor rather than a glad-hander. In 1 9 6 5 , when he was only twenty-nine and a few years out o f law school himself, Kennedy began teaching constitutional law at McGeorge, the local law school. Kennedy's idea o f himself as a teacher, and o f law as a transmitter o f society's values, was central to his identity.

Kennedy was not even forty years old when Gerald Ford appointed him to the N i n t h Circuit. T h e job o f an appeals court judge can be stultifying, especially for a young man, because the principal duties are so sedentary-—reading briefs, hearing arguments, and writing opinions. B u t Kennedy made something more o f it, when he accepted an appointment from Chief J u s t i c e Burger as supervisor o f the terri­ torial courts in the South Pacific, which entailed traveling to Guam, Palau, Saipan, American Samoa, Australia, New Zealand, and Japan. He kept up his teaching, and it was through the law school in Sacramento that Kennedy developed the connection that would trans­ form his judicial career. McGeorge offered a summer program for law students at the University o f Salzburg, in Austria, and Kennedy be­ gan teaching there in 1 9 8 7 , the year Reagan nominated him to the Supreme Court. Kennedy returned to Salzburg in 1 9 9 0 , and every year thereafter, as soon as the last opinion o f the term was handed down, he and his wife, Mary, would pack up their things and head to the idyllic city in the foothills o f the Alps.

T h e Berlin Wall fell a year after Kennedy joined the Court, and the po­ litical developments that followed from the collapse o f Communism had a profound effect on his approach to interpreting the Constitution. Suddenly, dozens o f countries around the world decided to adopt meaningful written constitutions. These aspiring democracies ini­ tially consisted o f former components and satellites o f the Soviet Union, but eventually countries in Asia, the Middle East, and Africa also sought democratic legal expertise. Virtually all o f these nations looked to the United States for inspiration—and more specifically, to its Supreme Court.

Kennedy was eager to answer the call, and he began to advise emerging democracies—including Czechoslovakia and Russia—on their constitutional law. In the early nineties, dozens o f projects were

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created to export American legal concepts. Most o f the justices partic­ ipated in some o f these exchanges, but Kennedy and O'Connor were by far the most active. In 1 9 9 0 , O'Connor helped create what would become the biggest o f these institution-building organizations, the Central European and Eurasian Law Initiative (CEELI) o f the American Bar Association. T h e first meeting o f C E E L I was going to take place in Salzburg, and since Kennedy was going to be there any­ way, O'Connor invited him to come along.

Kennedy enjoyed his summers in the city where many o f the most important international judicial conferences took place. T h e activity was centered in an institution known as the Salzburg Seminar, which was founded in 1 9 4 7 by three young Harvard graduates who thought that Europe needed a place for the study o f American ideals. They raised a few thousand dollars and rented the Schloss Leopoldskron, an eighteenth-century palace that had fallen into disrepair after being seized by the Nazis. T h e seminar became known as the "Marshall Plan o f the mind," and it remained a meeting place for scholars and judges. Since 1 9 7 1 , nine Supreme Court justices have attended sessions at the Schloss, many o f them several times. Kennedy participated in four seminars, and even during summers when he was not officially in­ volved, he visited the Schloss frequently to meet with foreign col­ leagues.

T h e Schloss Leopoldskron has tight security by Salzburg's relaxed standards, but not because o f the jurists. T h e palace was the setting for several scenes in The Sound of Music, the 1 9 6 5 movie, and has en­ dured more or less constant traffic from fans. T h e setting for two key romantic scenes, one between Liesl and R o l f (featuring the song "Sixteen Going on Seventeen") and the other between Maria and the Captain ("Something Good"), was a glass gazebo originally situated in the garden. W h e n the crowds became unmanageable, the gazebo was moved to a more central location in Salzburg. (Outside the Schloss, a sign on the wall closest to the street reads, in English, "Trespassers W i l l B e Prosecuted—Including Tour Groups.") For Kennedy, the Schloss was a second home in Salzburg, one o f the few places in the world where a Supreme Court justice could mingle eas­ ily with peers.

In Europe, from the moment he took office, George W. Bush was disdained for his unilateralist approach to foreign policy, his con­ tempt for international institutions, and, especially, his cowboy swag­ ger. Starting in 2 0 0 1 , Kennedy could go entire summers without

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meeting a Bush admirer, and the subject o f Bush v. Gore was avoided like a family tragedy. Kennedy was under no illusions about what his international colleagues thought o f his president—or o f his own de­ cision to put him in office.

One day, after Bush v. Gore, Kennedy had lunch with Richard Goldstone, a former justice o f the South African Constitutional Court who was in Salzburg to deliver a lecture and, like Kennedy, was eager to meet his foreign counterparts. T h e two men dined on the second floor o f the Schloss, in a room adorned with mirrored panels and gilt sconces that had been reproduced on a soundstage to create the von Trapp ballroom.

"Do you know any o f the Russian judges?" Kennedy asked G o l d - stone. "They are so resilient."

"I've met good and bad. Now the court belongs to the president," he said, referring to Vladimir Putin.

Kennedy mentioned that he was on the board o f an American Bar Association group that advised judges and lawyers in China, where he traveled about once a year. "There was a dinner for one o f their vice premiers," he said. "I knew that I had to give a gift. W e don't have a budget for these things, so I went down to the Supreme Court gift shop, and I found one o f these calendars. It was in a nice leather case, and it had some anniversary from American constitutional law for every day o f the year. So we're at this dinner, and I present the calen­ dar to him, and he's so pleased, so I just say, 'When's your birthday? W h y don't you look it up?' And he says whatever the date was and hands the calendar to the interpreter. So the interpreter just stands there. He looks at me. H e looks around. There was this silence. Clearly, he doesn't know what to do. So I say, 'Read it, read it.' And the entry is for Dennis v. United States, affirming prison time for eleven American Communists. There was this silence again. M y security guy headed to the door. T h e n the guest o f honor just laughed and laughed." Kennedy laughed too, adding, "I am not a world-class diplomat."

These kinds o f exchanges went on in Washington as well. Because Rehnquist more or less forbade discussions o f Court business at the justices' regular lunches, and because the justices could feign interest in one another's grandchildren for only so long, they started inviting guests. T h e visitors included Kofi Annan, Condoleezza R i c e , Henry Kissinger, the historian David McCullough, the soprano Cathy M a l - fitano, and Alan Greenspan (the only repeat invitee), but the most

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frequent guests were foreign judges. Goldstone was one, and so was Aharon Barak, the c h i e f justice o f Israel, as well as other lesser-known jurists. In the immediate post-Cold W a r period, these judicial ex­ changes may have started as a way o f exporting American constitu­ tionalism, but in time the ideas traveled in both directions—with a profound impact on the Court.

T h e two-way dialogue pushed the Court—and especially Kennedy—to the left. T h e United States is the most conservative democracy in the world, with a broad national consensus in support o f limited government and low taxes. Virtually all other democracies, in Europe and elsewhere, are committed to a more robust public sec­ tor, favoring, for example, national health care as well as higher taxes. Accordingly, the judges in other countries tend to be more liberal than their American counterparts. T h e contrast is especially stark on the death penalty. N o t only have virtually all democracies abolished capital punishment, they have tried to ban the practice from their community o f nations as well. All countries seeking membership in the European Union must renounce the death penalty. Among many European judges, executions inspire not just opposition but revulsion. Kennedy's voting shaded along with his eyeglasses—out with the seventies-style steel-framed aviators, in with a Euro-chic frameless model.

In the new century, such cosmopolitanism came at the Court from several directions, and a new generation o f law clerks brought a new attitude toward homosexuality. In this period, gay rights enjoyed rel­ atively few victories in the mainstream political culture, but the movement completely transformed the world o f the legal elite. In ma­ jor law schools and the big-city firms that employed their graduates (and many former Supreme Court law clerks), the cause o f equality for gay people enjoyed close to unanimous support. Schools and firms bragged about their welcoming attitudes toward homosexuals. Significant numbers o f gay law students grew up in this environment, accepted it as normal, and went on to clerk at the Supreme Court.

T h e gay clerks changed the Court, not because o f their advocacy but because o f their existence. They were, o f course, pretty much in­ distinguishable from their straight colleagues, and that was precisely the point. T h e justices, who were without exception polite and decent people, treated the gay clerks with civility. W h e n the longtime part­ ner o f a senior lawyer on the Court's staff died, the first condolence note to the survivor came from Rehnquist. (The chief also had openly

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gay people on his immediate staff.) Thomas treated the partners o f gay clerks with the same boisterous bonhomie as he did everyone else; the photo on his desk o f Stevens's clerk's partner, the snowboarder, was no aberration. O'Connor gave T-shirts with the words "Grand Clerks" to the newborn children o f all her law clerks; shortly after 2 0 0 0 , she learned that one o f her former clerks, a gay man, was adopt­ ing a baby with his partner. In her briskly efficient way, O'Connor poked her head into her current clerks' office, explained the situation, and said, "I should send one o f the shirts, right? W e think this is a good idea, don't we?" T h e clerks nodded, and the shirt went in the mail.

This social transformation at the Court occurred against a starkly different legal landscape. In the 1 9 8 6 case o f Bowers v. Hardwick, the Court had upheld the conviction o f a Georgia man for consensual sodomy with another man. Byron W h i t e ' s opinion for the 5 ^ major­ ity was utterly contemptuous o f the whole concept o f gay rights. "To claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept o f ordered liberty' is, at best, facetious," W h i t e wrote. In his brief, dismissive concurrence, Chief J u s t i c e Burger wrote, "To hold that the act o f ho­ mosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia o f moral teaching." For a generation o f gay people and their allies, the case remained an open wound.

One Saturday in the spring o f 1 9 8 6 , J u s t i c e Lewis Powell struck up an unusual conversation with one o f his law clerks, Cabell Chinnis J r . , about Bowers v. Hardwick. As Chinnis recounted the exchange to J o y c e Murdoch and D e b Price, authors o f a history o f gay rights at the Supreme Court, Powell asked about the prevalence o f homosexuality, which one friend-of-the-court brief estimated at 1 0 percent. Chinnis said that sounded right to him. "I don't believe I've ever met a homo­ sexual," Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, " W h y don't homo­ sexuals have sex with women?" "Justice Powell," he replied, "a gay man cannot have an erection to perform intercourse with a woman." T h e conversation was especially bizarre not just because o f its explicit nature but because Chinnis himself was gay (as were several o f Powell's previous law clerks). Earlier in the term, Chinnis had intro-

188 Jeffrey Toobin

duced Powell to the man he had lived with, but the clerk never knew for sure what Powell understood about his sexuality. T h e matter turned out to be o f more than passing significance because Powell, af­ ter a great deal o f agonizing, ultimately provided the fifth vote in sup­ port o f W h i t e ' s opinion in Bowers.

Seventeen years later, when the Court weighed whether to overturn Bowers, no justice could conceive o f asserting that he (or she) had never met a homosexual. B u t the fact that the justices all knew gay people did not necessarily mean that they were inclined to overrule what was still a fairly recent precedent.

T h e facts in the new case, Lawrence v. Texas, were uncomplicated and very similar to those that gave rise to Bowers. O n September 17, 1 9 9 8 , Houston police, responding to a report o f a weapons distur­ bance, entered an apartment where J o h n Geddes Lawrence and Tyron Garner were having sex. T h e two men were arrested for violating the Texas law against "deviate sexual intercourse," which prohibited oral and anal sex. T h e question for the Court was whether a state could constitutionally prohibit consensual sexual conduct between adults.

Even at the oral argument, it was apparent how much the Court had changed over the years. All Rehnquist could say in support o f the Texas law was that "the kind o f conduct we're talking about here has been banned for a long time." Even Scalia, who had, like Rehnquist and O'Connor, joined the Bowers opinion, sounded defensive. "It's an act committed in private," he said. "The police have not gone around knocking on bedroom doors to see i f anyone—I mean—this is not the kind o f a crime that the police go around looking for." In questioning Charles A. Rosenthal J r . , the Harris County district attorney, Breyer called the Bowers decision "harmful in consequence, wrong in theory, and understating the constitutional value" and asked, "How do you respond to that?"

Rosenthal tried to change the subject. B u t Breyer wouldn't give up, saying, "I would like to hear your

straight answer." T h e worldly Supreme Court audience chuckled at the double en­

tendre, which Breyer himself neither intended nor noticed. A t the conference, only three justices supported the Texas law—

Rehnquist, Scalia, and Thomas. O'Connor could not bring herself to repudiate her vote in Bowers altogether, but she couldn't bring herself to reaffirm it, either. So she found a characteristic middle ground, vot­ ing to overturn Lawrence's conviction on the ground that the prose-

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cution o f homosexuals (but not heterosexuals) violated the Equal Protection Clause. T h a t left five votes—Stevens, Kennedy, Souter, Ginsburg, and Breyer—to overturn Bowers, and Stevens wisely as­ signed Kennedy to write the opinion. (Inside the Court, Kennedy was sometimes said to be "clerk-driven"—that is, overly influenced by his law clerks. Lawrence demonstrated that the charge was both unfair and unwarranted, because three o f Kennedy's four clerks that year were committed conservatives.)

As the Court often saved the most controversial opinions for the last day o f the term, everyone knew that the decision in Lawrence v. Texas would be announced on J u n e 2 6 , 2 0 0 3 . Justices do not read their full opinions in open court but generally give abbreviated ver­ sions for the tourists and other (usually) baffled spectators who hap­ pen to be present. B u t on this day, gay rights supporters from around the country filled the spectator benches, waiting for the result in Lawrence. T h e audience stirred when Rehnquist, impassive as always, said, "The opinion o f the Court, number 0 2 - 1 0 2 . Lawrence versus Texas will be announced by J u s t i c e Kennedy."

Kennedy's voice had an uncharacteristic quaver. H e was more worldly than Lewis Powell—Kennedy knew many gay people—but he was also a conservative man by most definitions o f that term. A de­ vout and observant Catholic, he needed no instruction in the religious and moral prohibitions on homosexual conduct. H e was, simply, a man who had been transformed by the changing world around him.

"We granted certiorari to consider the constitutional claims pre­ sented, including the question whether Bowers v. Hardwick should be overruled," he said, then quoted a line from that opinion: "The issue as presented is whether the federal Constitution confers a fundamen­ tal right upon homosexuals to engage in sodomy." B u t that framing o f the question, Kennedy said, "demeans the claim put forward, just as it would demean a married couple i f it were said marriage is sim­ ply about the right to have sexual intercourse. T h e laws involved in Bowers and here are, to be sure, statutes that do prohibit a particular sexual act. Their penalties and purposes, though, have more far- reaching consequences, touching upon the most private human con­ duct, sexual behavior, and in the most private o f places, the home. T h e statutes seek to control a personal relationship that is within the liberty o f persons to choose without being punished as criminals." T h e nation, he went on, "has been shaped by religious beliefs, concep­ tions o f right and acceptable behavior, and respect for the traditional

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family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course o f their lives." T h i s was autobiography, for Kennedy's own life had been shaped by those beliefs—but then he said those rules cannot prescribe what the Constitution commands for all.

T h e next part o f the opinion—the key part—displayed the influ­ ence o f Salzburg in Kennedy's jurisprudence. Bowers made "sweeping references" to long-standing prohibitions on sodomy in Western civ­ ilization. These did not, however, "take account o f authorities in an opposite direction," Kennedy said, "including the decision o f the European Court o f Human R i g h t s in a case called Dudgeon v. United Kingdom. T h a t decision, with facts like Bowers and the instant case, held that laws prescribing this sort o f conduct are invalid under the European Convention on Human R i g h t s . " T h e pre-Salzburg Kennedy—even the pre-Bush v. Gore justice—would never have made such a reference.

As the tension rose in the courtroom, Kennedy finally announced the holding on the case: "The instant case requires us to address whether Bowers itself has continuing validity. W e conclude the ration­ ale o f Bowers does not withstand careful analysis, Bowers was not cor­ rect when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers versus Hardwick should be and now is overruled."

There was no mistaking the significance o f Kennedy's opinion. The point was not that the Court was halting sodomy prosecutions, which scarcely took place anymore. Rather, the Court was announcing that gay people could not be branded as criminals simply because of who they were. They were citizens. They were like everyone else. "The pe­ titioners are entitled to respect for their private lives," Kennedy wrote simply. "The State cannot demean their existence or control their des­ tiny by making their private sexual conduct a crime." T h e people who had devoted their lives to that cause understood precisely what had happened, which was why, to a degree unprecedented in the Court's history, the benches were full o f men and women sobbing with joy.

15

"A LAW-PROFESSION CULTURE"

Not everyone was pleased by the ruling in Lawrence v. Texas. T h e case turned out to be a critical moment in the culture wars. J u s t i c e Kennedy's opinion was hailed on major edi­ torial pages, in law schools, in big American cities, and in foreign capitals. B u t those voices, as J u s t i c e Scalia was quick to point out, were not the Court's only constituency. In the struggle between elite opinion and popular will, there were no guaranteed winners.

Lawrence cemented the breach between Kennedy and Scalia. Born within a few months o f each other and nominated by the same presi­ dent only a year apart, the former law school contemporaries and jog­ ging partners had been heading in opposite directions for some time, but the post-Bush v. Gore Kennedy became unrecognizable to Scalia. Indeed, in his opinion for the Court in Lawrence, Kennedy seemingly went out o f his way to produce a catalog o f everything in modern con­ stitutional law that most repelled Scalia. Like Roe v. Wade, Lawrence v. Texas was based on the "right to privacy," which Scalia did not believe existed. Kennedy drew at length from Casey, the 1 9 9 2 landmark that he had produced in secret collaboration with O'Connor and Souter, most notably these oft-quoted lines: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. A t the heart o f l i b ­ erty is the right to define one's own concept o f existence, o f meaning, o f the universe, and o f the mystery o f human life." In his dissent in Lawrence, Scalia sneered at what he called Casey s "famed sweet- mystery-of-life passage."

Scalia did more than simply ridicule Kennedy's words. Lawrence re-

192 Jeffrey Toobin

fleeted what Scalia, as an originalist, most despised—a Court that shifted according to contemporary trends rather than by the im­ mutable rules set down by the framers. B u t Scalia made a deeper ob­ servation. For all o f Kennedy's talk about how the world had changed since 1 9 8 6 , Scalia knew that many Americans—perhaps even most o f them—shared his own revulsion for homosexuality. T h e decision in Lawrence did not spring from anything close to unanimous public opinion on the issue; rather it sprang from one kind o f opinion. "Today's opinion is the product o f a Court, which is the product o f a law-profession culture, that has largely signed on to the so-called ho­ mosexual agenda, by which I mean the agenda promoted by some ho­ mosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct," Scalia wrote in his dissent, adding, "The Court has taken sides in the culture war."

Scalia knew that the public—the real public—was on his side on at least some issues, perhaps even most o f them, but especially about the clear subtext o f the Lawrence case—gay marriage. Kennedy, wary o f pushing his argument too far, had said pointedly in his majority opinion that the case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

B u t Scalia shot back with even greater directness: "Do not believe it. . . . T h i s case 'does not involve' the issue o f homosexual marriage only i f one entertains the belief that principle and logic have nothing to do with the decisions o f this Court. Many will hope that, as the Court comfortingly assures us, this is so." True to Scalia's prediction, just five months later, with heavy reliance on the Lawrence precedent, the Supreme J u d i c i a l Court o f Massachusetts held that gay people must be allowed to marry, too.

B y that point, Kennedy had decided to press forward on an equally controversial issue—the death penalty.

Although influenced by his summers in Salzburg, Kennedy wasn't even the most ardent internationalist on the Court. Breyer was.

In the way that actors once sought the perfect mid-Atlantic accent, Breyer found the perfect mid-Atlantic life. After graduating from Stanford, he won a Marshall Scholarship to study at Oxford. He re­ turned to the States for Harvard Law School, then moved to

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Washington to serve as a law clerk to J u s t i c e Arthur J . Goldberg. There he met a young Englishwoman named J o a n n a Hare, who was then an assistant in the Washington office o f the London Sunday Times. She came from an aristocratic (and wealthy) British family; her father was J o h n Hare, 1st Viscount Blakenham, a British peer and statesman who served as a leader o f the Tory Party in the 1 9 5 0 s and 1 9 6 0 s . T h e couple married in England, and J o a n n a Breyer later became a psychol­ ogist, treating young patients and their families at the Dana-Farber Cancer Institute in Boston. ( J u s t i c e Breyer was also fluent in French, a fact that, given the relationship between the Bush administration and France, he did little to advertise.)

At Harvard Law School, on the First Circuit Court o f Appeals, where he served from 1 9 8 0 to 1 9 9 4 , and on the Supreme Court, Breyer eagerly sought the friendship o f his counterparts in other countries. He was the first justice in modern times to invoke foreign law as an aid to interpreting the American Constitution. H e was cau­ tious at first. In 1 9 9 9 , the Court refused to hear the appeal o f a pris­ oner who argued that spending more than two decades on death row amounted to cruel and unusual punishment, in violation o f the Eighth Amendment. Breyer wrote a brief dissent from the denial o f certiorari, which was the kind o f opinion that had little significance compared with, say, a majority opinion o f the Court; such writing was a traditional way for justices to try out new ideas. So in his dissent in Knight v. Florida, Breyer quoted legal opinions from J a m a i c a , India, Zimbabwe, and the European Court o f Human R i g h t s to observe that "a growing number o f courts outside the United States . . . have held that lengthy delay in administering a lawful death penalty renders ul­ timate execution inhuman, degrading, or unusually cruel." Breyer carefully noted that these views could not bind American courts, but he thought their observations worthy o f note. S t i l l , even this cautious invocation o f foreign law drew a swift rejoinder from Clarence Thomas, who said in a brief opinion that the Supreme Court should never "impose foreign moods, fads, or fashions on Americans." W i t h that brief exchange, the battle was on.

It was Kennedy who took the concept to the next level. T h e issue was one that mattered a great deal to his foreign colleagues. O n October 1 3 , 2 0 0 4 , the Court heard argument on whether or not states could

194 Jeffrey Toobin

execute minors—that is, murderers who committed their crimes be­ fore they turned eighteen.

T h e issue was especially contentious because, as with Lawrence, the Court had considered it just a few years earlier. In 1 9 8 9 , Scalia had written in Stanford v. Kentucky that states could execute sixteen- and seventeen-year-old offenders. B u t in 2 0 0 3 , the Missouri Supreme Court had ruled in Roper v. Simmons that changes in the law since Stanford meant the Constitution now forbade the execution o f juvenile offenders.

T h e emotional temperature o f the issues surrounding the death penalty was changing. In his early years on the Court, Rehnquist had crusaded to speed up executions in the United States, and his opin­ ions seethed with frustration at the procedural roadblocks his liberal adversaries—chiefly Brennan and Marshall—had managed to create. In this respect, B i l l Clinton was in ideological accord with the chief justice, and in the aftermath o f the Oklahoma City bombing, the president signed the Antiterrorism and Effective Death Penalty Act o f 1 9 9 6 . T h e bizarrely named statute was supposed to limit appeals by condemned prisoners, but its impact was muted by larger trends. Crime dropped dramatically during the Clinton years; at the same time, the number o f people freed from prisons, often from death row, because o f faulty convictions rose. (Many o f these exonerations took place because o f the use o f new D N A technology.) B y the time Bush became president, public support for the death penalty, death sen­ tences by juries, and the number o f executions were all falling. Executions had peaked in 1 9 9 9 at ninety-eight and has more or less trended down ever since.

Even without outright opponents o f the death penalty like Brennan, Marshall, and (eventually) Blackmun, the Court in the Bush years imposed new limits on executions. In 2 0 0 2 , the Court said judges alone, without the concurrence o f jurors, could not impose death sentences; also that year, the justices ruled that the execution of the mentally retarded violated the Eighth Amendment's ban on cruel and unusual punishment. These rulings all came over the vigorous dissents o f Rehnquist, Scalia, and Thomas—sometimes joined by Kennedy or O'Connor, who was an especially strong supporter o f the death penalty—but the shift on the Court as a whole was unmistak­ able.

Even in light o f these developments, Kennedy's performance at the oral argument o f Roper v. Simmons was stunning.

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"Let's focus on the word 'unusual.' Forget 'cruel' for the moment," Kennedy said to J a m e s R . Layton, the local prosecutor in Jefferson City, who was defending the Missouri law. "We've seen very substan­ tial demonstration that world opinion is against this, at least as inter­ preted by the leaders o f the European Union. Does that have a bearing on what's 'unusual? Suppose it were shown that the United States were one o f the very, very few countries that executed juveniles, and that's true. Does that have a bearing on whether or not it's 'unusual'?"

N o , said Layton. "The decision as to the E i g h t h Amendment should not be based on what happens in the rest o f the world. It needs to be based on the mores o f American society."

Playing his familiar populist card, Scalia jumped in, asking, "Have the countries o f the European Union abolished the death penalty by popular vote?" Plainly baffled by this detour into foreign lands, Layton said he didn't know. B u t Scalia did know—and pointed out that European elites had abolished the death penalty in their coun­ tries even though "public opinion polls in a number o f the countries support the death penalty."

Kennedy, who saw where Scalia was going, said, "I acknowledged that in my question. I recognize it is the leadership in many o f these countries that objects to it. B u t let us assume that it's an accepted practice in most countries o f the world not to execute a juvenile for moral reasons. That has no bearing on whether or not what we're do­ ing is 'unusual'?"

None, said Layton. Breyer came to Kennedy's aid, pointing out that J a m e s Madison

and his colleagues drew on foreign sources in writing the Con­ stitution. Surely, said Breyer, there was no reason to think the framers "thought it was totally irrelevant what happened elsewhere in the world to the word 'unusual.' " Abraham Lincoln studied W i l l i a m Blackstone, the great English legal scholar, and "I think he thought that the Founding Fathers studied Blackstone, and all that happened in England was relevant; is there some special reason why what hap­ pens abroad would not be relevant here?" (As usual at oral argument, the lawyer was largely a spectator as the justices talked to one an­ other.)

Kennedy turned the question around: "Do we ever take the posi­ tion that what we do here should influence what people think else­ where?" Kennedy had spent much o f the previous decade trying to influence "what people think" as a missionary for constitutional

196 Jeffrey Toobin

democracy and the rule o f law. B u t like many other missionaries, Kennedy turned out to be as changed by his journeys as were the peo­ ple he was trying to convert.

"You thought that Mr. Jefferson thought that what we did here had no bearing on the rest o f the world?" Kennedy went on.

Layton said he couldn't speak for Thomas Jefferson. Ginsburg suggested the Declaration o f Independence supplied the

answer. " B u t did he not also say that to lead the world, we would have to show a 'decent respect for the opinions o f mankind'?"

All this talk about the international exchange o f ideas was more than Scalia could take, so he cut it off with a wisecrack: " W h a t did J o h n Adams think o f the French?" T h e audience laughed.

B u t Kennedy had made his position clear. T h e vote in conference was 5 - 4 to strike down the death penalty for juvenile offenders and to overrule Scalia's fifteen-year-old opinion holding otherwise. Stevens, the senior justice in a majority that also included Souter, Ginsburg, and Breyer, wisely assigned the case to Kennedy, who had shown so much passion about the issue. His opinion turned out to be unlike any in the Court's history. Kennedy began by finding "a na­ tional consensus against the death penalty for juveniles," even though twenty states still allowed such executions to take place. B u t the heart o f the opinion—and certainly the most unusual part—was Kennedy's reliance on international evidence to reach his conclusion.

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark re­ ality that the United States is the only country in the world that con­ tinues to give official sanction to the juvenile death penalty," he wrote. "This reality does not become controlling, for the task o f inter­ preting the E i g h t h Amendment remains our responsibility." T h e ev­ idence from foreign countries may not have been "controlling," but it was obviously highly important to Kennedy and his colleagues in the majority. H e noted that the United States had only dismal company in countries that had executed juvenile offenders since 1 9 9 0 : Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. B u t since then, even those countries had re­ nounced the practice.

"In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty," Kennedy wrote, adding, "The opinion o f the world community, while not controlling our outcome, does provide respected and significant

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confirmation for our own conclusions." Kennedy ended his opinion in

Roper with one o f his orotund, and not entirely comprehensible, per-

orations: "Not the least o f the reasons we honor the Constitution,

then, is because we know it to be our own. I t does not lessen our fi-

delity to the Constitution or our pride in its origins to acknowledge

that the express affirmation o f certain fundamental rights by other na-

tions and peoples simply underscores the centrality o f those same

rights within our own heritage o f freedom."

It was left to Scalia, once again, to ask what Kennedy's embrace o f

foreign sources really meant. "Though the views o f our own citizens

are essentially irrelevant to the Court's decision today," he noted with

characteristic asperity, "the views o f other countries and the so-called

international community take center stage." B u t Kennedy had not

put forth any sort o f standard by which to determine when the United

States should follow the rest o f the world and when it should not.

Scalia went through a long list o f areas where American law differed

from others—reliance on juries, the exclusionary rule, separation o f

church and state—and he returned, as ever, to his bête noire: "And let

us not forget the Court's abortion jurisprudence, which makes us one

o f only six countries that allow abortion on demand until the point o f

viability."

W i t h some force, Scalia argued that the Court's grazing among for-

eign laws was really just an excuse to shape the law "to the justices'

own notion o f how the world ought to be." In concluding he warned,

"To invoke alien law when it agrees with one's own thinking, and ig-

nore it otherwise, is not reasoned decisionmaking, but sophistry."

T h e response to this pointed debate over the influence o f foreign

law showed how much Kennedy had strayed from the values o f the

contemporary Republican Party. Like O'Connor, Kennedy had come

of age at a time when the G O P stood for low taxes and limited gov-

ernment, but he increasingly saw social issues define his party. As

Kennedy soon learned, hostility to international law—and interna-

tional institutions like the United Nations—had also become a cen-

tral tenet o f the GOP. In his earnest, even naive way, Kennedy

believed his recognition o f foreign law amounted to a corollary to

Bush's evangelism for spreading freedom around the world. " I f we are

asking the rest o f the world to adopt our idea o f freedom, it does seem

to me that there may be some mutuality there, that other nations and

other peoples can define and interpret freedom in a way that's at least

instructive to us," he once said.

198 Jeffrey Toobin

In truth, all Kennedy was doing was showing how out o f touch he was with the modern Republican Party. After Roper, fifty-four con­ servatives in the House o f Representatives sponsored a resolution crit­ icizing the use o f foreign sources by the Supreme Court, and Representative Steve K i n g , a Republican from Iowa, conducted an in­ vestigation o f the justices' foreign trips, based on the disclosure forms that they are required to file. "Between 1 9 9 8 and 2 0 0 3 , the justices took a total o f ninety-three foreign trips," K i n g said. "And the impli­ cation is that there are at least a couple o f justices, chiefly Kennedy and Breyer, who are more enamored o f the 'enlightenment' o f the world than they are bound by our own Constitution."

Every year, one or two justices testified before Congress in support o f the Court's annual budget request, and Kennedy often took on the assignment. In his testimony after Roper, he mentioned in pass­ ing that he used the Internet for legal research. This prompted Tom DeLay, the House majority leader, to tell an interviewer from Fox News Radio, "We've got J u s t i c e Kennedy writing decisions based upon international law, not the Constitution o f the United States. That's just outrageous, and, not only that, he said in session that he does his own research on the Internet. T h a t is just incredibly outrageous." (As DeLay apparently did not know, virtually all legal research, in U . S . as well as foreign law, is now conducted on the Internet.)

A few weeks later, near the end o f the Court's term, Kennedy gave a pointed retort to DeLay. For a reunion o f Chief J u s t i c e Rehnquist's law clerks, he made a brief video during which he was taped sitting at his computer. H e said that he was doing a little research. H e signed off by saying good-bye in several languages.

T h e video allowed Kennedy to shrug off DeLay's criticism with a cheery wink. B u t there was no mistaking the fact that the Bush pres­ idency was poisoning the atmosphere around the Court, i f not inside it. Ever since his apostasy on abortion in Casey, Kennedy had been anathema to the conservative movement, but his citations to foreign law tapped into a deep nativism on the right as well. T h e backlash against him was fierce. For a time, Souter had been the principal Republican target, but Kennedy's authorship o f high-profile opinions had made him the public symbol o f conservative betrayal.

A t a conservative conference in Washington shortly after Roper, Phyllis Schlafly, the veteran antifeminist leader, said Kennedy's deci­ sion was "a good ground for impeachment." Michael P. Farris, chair-

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man o f the Home School Legal Defense Association, said Kennedy "should be the poster boy for impeachment," for citing international law. " I f our congressmen and senators do not have the courage to im­ peach and remove from office J u s t i c e Kennedy, they ought to be im­ peached as well." Given Kennedys role on the Court in the culture war cases, it wasn't just hyperbole when J a m e s Dobson, the founder and director o f Focus on the Family, called Kennedy "the most dan­ gerous man in America."

B u t the right had no monopoly on partisan vitriol aimed at the jus­ tices. T h e left, too, had its favored target. To be sure, Thomas was still widely despised, because o f Anita H i l l and his voting record on the Court; but because Thomas generally limited his public appearances to friendly audiences, he was rarely visible to his enemies. I t was Scalia—brazen, outspoken, gleefully confrontational—who was the conservative whom liberals loved to hate.

T h e battle with his critics that meant the most to Scalia himself had a peculiar origin. In 1 9 9 0 , Byron W h i t e wearied o f his assign­ ment as the justice supervising the Court o f Appeals for the Fifth Circuit. Based in New Orleans, the Fifth Circuit covers the part o f the South where many o f the nation's executions are scheduled. T h e re­ sulting cases produce many emergency applications to the Court, and the circuit justice must administer the flow o f paper to his colleagues; W h i t e no longer wanted the responsibility for keeping track o f it. T h e job o f circuit justice also includes making regular trips to the area for conferences that generally also include parties, receptions, and other social occasions. Once Scalia took up his responsibilities in the Fifth Circuit, some lawyers and judges decided to invite him to enjoy the local sport, hunting.

Scalia made an unlikely hunter. H e was born in Trenton, in 1 9 3 6 , and raised in Elmhurst, Queens, as the only child in a thoroughly ur­ ban (and urbane) family. His father, a translator and a professor o f Romance languages at Brooklyn College, was hardly one for outings in the woods. "My father was a much more scholarly and intellectual person than I am," Scalia once said, as recounted by Margaret Talbot. "He always had a book in front o f his face." Scalia received a tradi­ tional Catholic school education, with four years o f Latin and three years o f Greek. H e attended Georgetown University, excelled on the

200 Jeffrey Toobin

debate team, and graduated first in his class. His valedictorian address offered hints o f both his literary style and his interests. "Our days were spent in hunting; but our prey was more elusive and more valu­ able than any forest deer or mountain bear or prairie buffalo," he said. "For we were seekers o f the truth." H e went on to Harvard Law School, where he made law review, and then, after a brief stop at a law firm in Cleveland, served on the faculties o f several leading law schools. H e spent the, seventies and eighties shuttling between acade- mia and increasingly important jobs in the J u s t i c e Department o f the Nixon and Ford administrations. Along the way, he and his wife, Maureen, had nine children, one o f whom became a priest.

I t would be a mistake, however, to regard Scalia as just a bookish man. H e was on the rifle team in high school (commuting on the New York subway with a . 2 2 carbine), played the piano, sang in school shows, and fought for his intellectual beliefs with a nearly physical in­ tensity. To his father, unchanging certainty about religion or politics, no matter what the current intellectual fad, was a sign o f strength, not weakness. Scalia was only too happy to embrace the verities o f Catholic doctrine and reject the moral relativism o f the modern world. "For the son o f God to be born o f a virgin? I mean, really. To believe that he rose from the dead and bodily ascended into heaven. How utterly ridiculous," Scalia said at a meeting o f the Knights o f Columbus, the Catholic fraternal organization. "God assumed from the beginning that the wise o f the world would view Christians as fools, and he has not been disappointed."

Scalia relished the skepticism o f critics. " B e fools for Christ," he implored his fellow believers. "Have the courage to suffer the con­ tempt o f the sophisticated world." Scalia's mindset, o f course, was precisely the opposite o f Kennedy's; unlike his colleague, Scalia courted the scorn o f global elites.

In this spirit, Scalia embraced the hunt. His trips to the Fifth Circuit ignited a passion for the sport, and in time he turned his chambers into a veritable museum o f taxidermy, with his kills mounted and displayed on the walls. For behind his desk, Scalia bor­ rowed a magnificent G ilbert Stuart portrait o f George Washington from the Smithsonian. B u t the painting was overshadowed by the gi­ gantic head o f an elk whose nose reached practically across the room as i f to make the acquaintance o f the first president. And on the small table in front o f the sofa, where Scalia entertained visitors, was a smaller but even more provocative display—a wooden duck, a re-

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minder that the justice had become perhaps the best-known duck hunter in the country.

D i c k Cheney was the executive branch counterpart to N i n o Scalia, an object o f loathing and suspicion among their political adversaries. T h e case before the Supreme Court that brought them together re­ vealed a great deal about contemporary Washington.

A few days after George W. Bush took office, Cheney set up a task force on energy with himself as chair. About five months later, the task force issued a report, then went out o f business. Two public in­ terest groups, Judicial W a t c h , a conservative outfit, and the Sierra Club, the liberal environmental organization, sued the vice president, demanding that he release all o f the work papers and communications produced by the task force. Cheney refused, claiming that the execu­ tive branch had the right to keep such records confidential.

It was difficult to imagine a controversy with lower stakes. Like most other task force reports in the capital, this one was quickly for­ gotten, its recommendations largely ignored. T h e fact that Cheney's group conferred with many energy companies was widely known, completely expected, and entirely proper. N o t even the plaintiffs se­ riously suggested that the task force records would reveal any illegal­ ity or impropriety. T h e case was simply part o f Washington trench warfare, a process that often includes minor lawsuits like this one, which became known as Cheney v. United States District Court. For two years, the case meandered in deserved obscurity through the legal system.

During this period, Scalia continued his hunting forays through the Southern wilderness. Every December, he went duck hunting in rural Louisiana with Wallace Carline, who ran a company that pro­ vided services to oil rigs in the G u l f o f Mexico. In 2 0 0 2 , Scalia learned that Carline was an admirer o f the vice president, whom Scalia knew from their days together in the Ford administration. A t Carline s sug­ gestion, Scalia invited Cheney to join them. Given the complexity o f everyone's schedules, the trip could not be arranged until January 2 0 0 4 . B y coincidence, three weeks before the trip, the Court granted cert on Cheney's appeal o f the case involving the records o f his energy task force.

The hunting expedition, which began on January 5, 2 0 0 4 , turned

202 Jeffrey Toobin

into something o f a fiasco. Scalia, along with one o f his sons and a son- in-law, bought round-trip air tickets, but Cheney invited them along on Air Force Two for the trip to the small airstrip in the town o f Patterson. Residents had never seen anything like Cheney's en­ tourage. T h e government had already made two reconnaissance trips in November and December, and then the vice president's plane was preceded on arrival day by two B l a c k Hawk air combat helicopters that hovered over the landing area, and followed by a second Air Force jet that carried staff and security aides to the vice president. N o pho­ tography was allowed as Cheney, Scalia, and about thirteen others got into a line o f armored sport utility vehicles.

Carline's compound was usually described as a hunting camp, but it was actually an enormous barge—about 1 5 0 feet by 5 0 feet—that was anchored in the marsh wherever the hunting was best. O n top o f the barge was a houselike structure with a few small bedrooms, which the group shared in groups o f two or three, although Cheney was given his own. Meals were served family style, and hunting was in two- or three- man blinds. (Cheney and Scalia were never in the same one.)

I t was raining when Cheney's plane arrived, and it never stopped during the two days the vice president remained. (Scalia and his fam­ ily stayed for four days.) Counterintuitively, the weather apparently was too wet even for ducks, because few o f the targeted greenheads and teals were seen and even fewer killed. Carline said it was the worst duck hunting in thirty-five years.

Later that month, the Los Angeles Times, as well as the local Daily Review o f Morgan City, Louisiana, disclosed the trip, and the Sierra Club asked Scalia to recuse himself from the energy task force case, which was to be argued in April. Curiously, there are no formal rules governing when Supreme Court justices must withdraw from cases. U n l i k e judges on the lower federal courts (which do have such rules), a Supreme Court justice cannot be replaced in a given case; ties at the Supreme Court amount to an affirmance o f the lower court. Because o f these unfortunate consequences, the justices are reluctant to drop out. T h e general rule said justices should withdraw i f their "impar­ tiality m i g h t reasonably be questioned"—whatever that meant.

T h e motion to recuse Scalia reflected a trend in Washington to turn disagreements over substantive issues into matters o f personal ethics. In the nineties, Republicans pursued Clinton on many frivolous controversies. Later, without control o f either house o f Congress, Democrats had limited options for payback, but this attack on

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Scalia—a kind o f petty harassment—was one. There was never any evidence that he and Cheney discussed the case or that Scalia, whose views on the rights o f the executive branch were well established, was influenced by the joint outing. In all, the case for Scalia to recuse him­ self was weak. Cheney had been sued not as an individual but in his official capacity (meaning the case would continue i f Cheney left of­ fice), and the Supreme Court hears cases against prominent govern­ ment officials all the time. Most important, by historical standards, the relationship between Scalia and Cheney was hardly unusual; in­ deed, other executive branch officials and Supreme Court justices have enjoyed much closer friendships.

Breyer, among others, urged Scalia to avoid the controversy, recuse himself, and forget about the whole matter. (This was typical advice from the notoriously conflict-averse Breyer.) Scalia refused. Indeed, after stewing for weeks, he produced an unusual, and unintentionally amusing, public memorandum that was released shortly before the task force case was argued. Scalia's twenty-one-page jeremiad in­ cluded commonsense observations ("Many Justices have reached this Court precisely because they were friends o f the incumbent President"), detailed historical references (several justices played poker with Roosevelt and Truman), and gratuitous attacks on "so-called inves­ tigative journalists" for their errors (the San Antonio Express-News said the duck-hunting trip lasted nine days).

T h e memo also included a detailed account o f the trip and even Scalia's personal expenses. (His round-trip fare, with an unused half, was still cheaper than buying a one-way ticket, so the ride with Cheney did not save the Scalia clan any money.) Scalia leavened his self-righteousness with a measure o f self-pity, noting that he had "be- com[e] (as the motion cruelly but accurately states) fodder for late- night comedians." In its brief, the Sierra Club had helpfully supplied examples, like J a y Leno on The Tonight Show describing an "embarrass­ ing moment" for Cheney when he visited the W h i t e House. "Security made him empty his pockets and out fell J u s t i c e Antonin Scalia!"

On balance, Scalia seems to have been correct to remain on the case, which ended with a tangled set o f opinions that basically resolved the case in Cheney's favor. (Scalia voted for Cheney's side; Souter and Ginsburg dissented.) W i t h characteristic bravado, Scalia started refer­ ring in public to the Cheney controversy as his "proudest" moment as a justice. "The rest took smarts—that took character," he said. I t speaks to Scalia's messianic sense o f himself that he would choose this

204 Jeffrey Toobin

insignificant matter—rather than, say, the selection o f a president or any number o f literally life-or-death controversies.

Scalia's colleagues were used to his dramatics on and off the court, and they collectively greeted the latest controversy with little more than a roll o f the eyes. As O'Connor would often say, "That's just N i n o . " Perhaps Ginsburg put it best in a speech in Hawaii a few months later, when she said a deer killed by Scalia made for delicious venison at their families' traditional New Year's feast. "Justice Scalia," she observed dryly, "has been more successful at deer hunting than he has at duck hunting."

T h e personal attacks on Kennedy and Scalia illustrated how the po­ larized ideological environment radiated into the Court itself. T h e justices remained cordial toward one another, but ideologues outside the Court treated them as i f they were just another set o f partisans. T h e fiction that they dwelled outside politics became increasingly dif­ ficult to sustain.

T h e undertow dragging the Court into politics disturbed all the justices, but especially O'Connor. Splitting the difference came natu­ rally to her, but it wasn't possible in every case. During the early years o f the Bush presidency, a case was heading to the Court that, to a de­ gree almost unprecedented in history, was directed to a single jus­ tice—O'Connor. Her struggle in that case to place the Court in the center o f American life—and herself in the center o f the Court— became her defining moment.

1 6

The problems began with J o h n Ashcroft. Ashcroft, the former Missouri senator whom Bush named his first attorney general, embodied everything that O'Connor disdained about the modern Republican Party. H e was ex­ treme, polarizing, and moralistic—unattractive. O n e o f O'Connor's fa­ vorite former law clerks was Viet Dinh, who in the course o f an extraordinary life fled Vietnam as a boat person and later became a professor o f law at Georgetown. W h e n O'Connor heard that D i n h had taken a senior job under Ashcroft, she was appalled. "Working with Ashcroft, he's ruining his career," she told another former clerk.

B u t O'Connor was wrong. D i n h was actually enhancing his career by associating with Ashcroft, because it was Ashcroft's brand o f con­ servatism, not O'Connor's, that was ascendant in George W . Bush's Washington. O'Connor herself would come to understand this new reality. T h e story o f O'Connor's disillusion with the G O P — a n d with Bush himself—was the story o f her last years on the bench and the fi­ nal transformation o f the Rehnquist Court.

There were early hints that the Bush administration would head in a direction that O'Connor did not expect. T h e Ashcroft choice was one, and September 11 was another. She and Stephen Breyer were to­ gether in India on the day o f the attacks, planning to meet with local judges, and they had to struggle for days to secure travel arrange­ ments home. B u t it was O'Connor's little-noticed reaction to the at­ tacks that showed another way she was slipping away from the Bush orbit.

As with Kennedy, world travel played an important part o f O'Connor's ideological journey. Even after O'Connor turned seventy,

BEFORE SPEAKING, SAYING SOMETHING

206 Jeffrey Toobin

in 2 0 0 0 , she remained the Court's most indefatigable tourist. (Ginsburg s secretary, who fielded many invitations from the groups that O'Connor had already visited, joked that O'Connor had been so many places that sr^ must have a secret twin sister.)

In her no-nonsense way, O'Connor took advantage o f the fact that she was the only celebrity on the Court, showing the country and the world that a woman could serve at the highest level o f government. In that respect, her mere presence was sometimes the only message she wanted to impart, but often, especially in later years, O'Connor tried to get across more pointed ideas. She led a delegation o f judges to China for the first court-to-court exchange between the United States and the People's Republic, for example. There, in a beautifully appointed room in B e i j i n g , O'Connor sat side by side with President J i a n g Z e m i n , sipping tea out o f an elegant porcelain cup and talking about his upcoming trip to President Bush's Crawford, Texas, ranch. As the audience drew to a close, O'Connor leaned over to the Chinese leader and said very slowly and carefully—each had an interpreter— "Mr. President, I cannot leave without reminding you that our coun­ try remains deeply concerned about China's treatment o f prisoners o f conscience." J i a n g did not reply.

O'Connor wanted to see the ruins o f Ground Zero before they stopped smoldering. O n September 2 8 , 2 0 0 1 , when travel to New York was still difficult, O'Connor and her husband kept a long­ standing appointment to preside over the groundbreaking o f a new building at New York University Law School. (This was her seventh visit to N Y U — a n institution to which she had no special ties—and she made similar repeat visits to many other law schools around the country.) W i t h the grace o f a skilled politician, she began her remarks with reflections on the moment in history. "As the Irishman said, be­ fore I speak, I want to say something," she began. "John and I have come to New York City from time to time, as westerners do, espe­ cially in the twenty years since I myself have been an East Coast resi­ dent. . . . W e made a detour early this morning, to go down to the end o f the island to get a glimpse, i f we could, o f the incredible dam­ age done on September the eleventh. I am still tearful from that glimpse." As i f on cue, a siren began blaring, the nearly constant background noise o f those traumatic days in New York. It wasn't a day for an ordinary speech, and O'Connor did not give one.

"The trauma that our nation suffered will [alter] and has already al­ tered our way o f life," O'Connor said, "and it will cause us to reexam-

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ine some o f our laws pertaining to criminal surveillance, wiretapping, immigration, and so on. I t is possible, i f not likely, that we will rely more on international rules o f law than on our cherished constitu­ tional standards for criminal prosecutions in responding to threats to our national security. As a result, we are likely to experience more re­ strictions on our personal freedom than has ever been the case in our country. W e shall be considering and debating among ourselves all the aspects o f our nation's response to terrorism. W e wish it were not necessary. W e wish we could set the clock back to a time o f greater peace and prosperity. B u t we cannot. W e are forced to face the reality o f a deadly enemy and o f people who are willing to sacrifice every­ thing in order to cause harm to our country. As Margaret Thatcher said, when law ends, tyranny begins."

O'Connor was careful, as she had to be, to avoid taking any specific positions on issues that m i g h t come before the Court, but she was showing considerable prescience—and concern. Even in these first few days after the attack, O'Connor was warning about a coming clash between national security and civil liberties. She had not been im­ pressed by the Ashcroft J u s t i c e Department and did not fully trust it to provide the appropriate balance. O'Connor's prominent reference to "international rules" was no accident. T h e Bush administration had already made clear its hostility to international law and institutions, and O'Connor was laying down a subtle marker that she, in notable contrast, had a great deal o f faith in the worldwide community o f judges and lawyers.

T h e trip to India where she was stranded with Breyer a few weeks earlier was typical o f her travel. O'Connor went abroad not, as Kennedy did, principally to indulge in high-flown rhetoric about the rule o f law but rather as a problem solver. She had particular interests in juvenile justice and the role o f women in law, and she sought out programs on these subjects. It was no coincidence that she found an ally in Breyer, the Court's leading technocrat. H e , too, liked to find practical solutions to problems—how to increase the number o f women lawyers, how to provide child care for jurors. Because o f their trips, and because they were probably the two least neurotic person­ alities on the Court, O'Connor and Breyer ultimately became closer than any other pair o f justices.

There was an ideological component to O'Connor's travels, too. She often told the story o f an earlier trip to India, when she went to hear an argument before that nation's highest court, in New Delhi. T h e

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case involved a dispute between Hindus and Muslims over govern­ ment benefits. B u t as the argument began, O'Connor was surprised to hear the lawyers on both sides citing precedents from the United States Supreme Court in support o f their positions. A t one point, the lawyers were debating the meaning o f an opinion that O'Connor her­ self had written about the separation o f church and state. As O'Connor said in a speech after she returned, " W h e n life or liberty is at stake, the landmark judgments o f the Supreme Court o f the United States . . . are studied with as much attention in New Delhi or Strasbourg as they are in Washington, D . C , or the state o f Washington, or Springfield, Illinois. T h i s reliance, unfortunately, has not been reciprocal."

O'Connor's alienation from her party did not happen overnight, nor did it ever amount to a complete breach. Her rebellion took place mostly on issues relating to the culture wars—like abortion, church- state relations, and gay rights—but she hardly turned into an across- the-board liberal. O n criminal cases, including the death penalty, she remained a hard-liner; on federalism and states' rights, she stayed a firm ally o f Rehnquist's. O n one issue, fatefully, for the country and within the Court, O'Connor remained poised on dead center—race.

W h e n O'Connor joined the Court in 1 9 8 1 , civil rights still occupied a major part o f the justices' agenda. One o f her early major opinions for the Court, in 1 9 8 9 , set out her views on the subject—in typically opaque fashion.

R i c h m o n d , Virginia, passed a local ordinance requiring businesses contracting with the city to set aside 3 0 percent o f their subcontracts for minority-owned enterprises. After losing a contract for installing stainless steel toilets at the city jail because it lacked the required mi­ nority subcontractors, the J . A. Croson Company sued the city, claim­ ing a violation o f the Equal Protection Clause. T h e Court agreed, striking down the set-aside program by a 6 - 3 vote in Richmond v. Croson. O'Connor was assigned to write the opinion.

To do so, O'Connor had to wade into one o f the thorniest debates in constitutional law. Five decades earlier, the Roosevelt appointees made sure that the Court vindicated the constitutionality o f the New Deal. Henceforth, i f Congress or a state legislature approved a statute, the justices weren't going to interfere with the democratic process. B u t

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that approach left a major question unanswered. W h a t i f a state passed a law that discriminated against a minority group—as, for example, the Southern states did all the time? W h a t i f a state said only whites could vote in primaries or serve on juries? Would the Court let those laws stand, too? T h e justices answered such questions with the most famous footnote in the Court's history. In note 4 o f United States v. Carotene Products, an otherwise minor case from 1 9 3 8 , J u s t i c e Harlan Fiske Stone suggested the Court would treat different kinds o f laws in different ways. In cases about economic or property rights, the justices would defer to the political process. B u t when it came to laws that ap­ peared to be targeted at racial minorities or other "discrete and insular minorities," the Court would apply "more searching judicial scrutiny."

As later justices interpreted the famous footnote, this meant that i f a law appeared to discriminate against blacks, the justices would apply what became known as "strict scrutiny" to see i f the law was justified. During the civil rights revolution o f the 1 9 6 0 s , the Supreme Court re­ peatedly applied strict scrutiny to all laws that contained racial classi­ fications—all o f J i m Crow—and struck them down. As the Court's precedents evolved, it became clear that i f the justices were going to examine a law with strict scrutiny, that law was invariably doomed.

T h e major complication to this doctrine o f law emerged in the 1 9 7 0 s , when governments and companies started programs that were supposed to help blacks and other minorities. These affirmative action initiatives included explicitly racial classifications. Should the Court apply strict scrutiny and strike down laws that were supposed to help blacks in the same way it invalidated laws that were supposed to hurt them? Should the law treat "reverse discrimination" against whites the same way it treated old-fashioned discrimination against blacks? Those were the questions that O'Connor had to answer in the Croson case. Specifically, should the Court apply strict scrutiny to the set- aside program that explicitly required a degree o f racial balance?

To answer, O'Connor did what came naturally to her. She split the difference. For O'Connor, there was no doubt that the R i c h m o n d or­ dinance contained a racial classification that disadvantaged whites. "The Richmond Plan denies certain citizens the opportunity to com­ pete for a fixed percentage o f public contracts based solely upon their race," she wrote. As such, O'Connor decreed, the plan deserved strict scrutiny from the Court: "The standard o f review under the Equal Protection Clause is not dependent on the race o f those burdened or benefited by a particular classification." T h i s in itself was a major de-

210 Jeffrey Toobin

velopment; it was the first time that the Court applied strict scrutiny to a law that was intended to help blacks.

Historically, strict scrutiny o f a law or government program meant automatic invalidation. Was O'Connor ruling out all race-conscious programs, even i f they were designed to help disadvantaged minori­ ties? N o , not exactly, because here was where O'Connor hedged. R i c h m o n d had put its set-aside plan in place without any research on whether minority subcontractors had been discriminated against in that city. T h e law was based solely on the general sense that there had been a history o f discrimination in the field. To O'Connor, that was an inadequate justification, but she raised the possibility that a city m i g h t make findings that did justify a racially conscious set-aside plan. "Nothing we say today precludes a state or local entity from tak­ ing action to rectify the effects o f identified discrimination within its jurisdiction," she wrote. " I f the city o f Richmond had evidence before it that nonminority contractors were systematically excluding minor­ ity businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion."

So the O'Connor position seemed to be that affirmative action was permissible, but only as redress for identifiable discrimination against specific people. Her standard raised as many questions as it settled. W h a t was systematic discrimination? How could it be identified? D i d remedies have to go only to the specific victims? O r could the benefits go to a minority community at large? O'Connor never spelled out the answers to all these uncertainties, but she did stick with the same basic ideas in subsequent cases: some affirmative action was per­ missible—but not too much.

I f O'Connor's position on racial issues remained something o f a mystery, those o f her colleagues did not. Four o f them—Rehnquist, Scalia, Kennedy, and Thomas—believed in a "color-blind" Con­ stitution; they thought all laws that drew distinctions based on race, including those that purported to help minorities, should be struck down. Four others—Stevens, Souter, Ginsburg, and Breyer—believed that for the most part government and businesses could give advan­ tages to racial minorities, either to redress prior discrimination or to foster the goal o f diversity. More than on any other issue, the Court was divided four-to-four-to-one.

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N o school in the nation made a greater c o m m i t m e n t to affirmative ac-

tion than the University o f Michigan, especially in admissions. Given

the vast size o f its undergraduate college, Michigan used a statistical

test, based primarily on grades and S A T results, for most admissions

decisions. Because blacks generally scored lower than whites in both

categories, a purely numerical admissions process would have resulted

in virtually all-white and Asian classes. Under the program that

Michigan adopted, the boosts for minority applicants could be sub-

stantial. A minority applicant with a 3.5 grade-point average and a

combined SAT score o f 1 2 0 0 would automatically be accepted, and a

white candidate with the same scores would likely be rejected. T h e

law school admission process, which involved fewer students, entailed

more individualized assessments o f applicants but still gave signifi-

cant advantages to blacks. One year, among applicants with grade-

point averages between 3-25 and 3 . 4 9 and LSAT scores between 1 5 6

and 1 5 8 , one o f fifty-one whites was admitted, and ten o f ten blacks

were.

Conservative public interest groups like the Center for Individual

R i g h t s — a civil rights counterpart to J a y Sekulow's religion-based

outfit—had been scouring the country to find the right places to chal-

lenge racial preferences. T h e stark numbers at Michigan made the

school an inviting target, as did the availability o f sympathetic plain-

tiffs.

Barbara Grutter was one o f nine children o f a minister in the

Calvinist Christian Reformed Church. W h e n her own children were

small, she ran a medical consulting business out o f her house, and

eventually decided to apply to the University o f Michigan Law

School, which had a joint program in her field, health care manage-

ment, and law. She had a 3.8 grade-point average from her undergrad-

uate days at Michigan State and scored 1 6 1 on the LSAT. A black

student with those grades and scores would certainly have been ad-

mitted to the law school, but Grutter was placed on the waiting list

and then rejected. Jennifer Gratz, also white, was similarly well qual-

ified for admission to Michigan's undergraduate program and was also

placed on the waiting list and then rejected. B o t h women filed their

lawsuits in late 1 9 9 7 , and then began their long march through the

federal trial and appellate courts.

From the start, both cases—Grutter v. Bollinger and Gratz v.

Bollinger—were causes célèbres. (Lee C. Bollinger was then president

of the University o f Michigan.) B y some reckonings, the Court was

212 Jeffrey Toobin

moving in the direction o f striking down all racial preferences, and the Michigan cases appeared to be nearly ideal vehicles for supporting that position. O'Connor herself seemed to be inching rightward on the issue, most notably in her opinion for the Court in Adarand Constructors, Inc. v. Pena, in 1 9 9 5 . There she reversed a lower court rul­ ing that upheld a federal affirmative action program for minority con­ tractors, but she saw no reason to rule on every affirmative action program in the context o f that single case; still, the judicial momen­ tum, as well as the rhetorical energy, seemed to belong to the oppo­ nents o f such programs. As Scalia put it, in a concurring opinion in Adarand, "In the eyes o f the government, we are just one race here. It is American." In 1 9 9 6 , the Fifth Circuit struck down the use o f affir­ mative action in admissions at the University o f Texas—a prelude, many thought, to the same decision on a nationwide basis by the Supreme Court. T h e justices denied cert in the Texas case.

A t that point, though, an unlikely savior o f the Michigan program, and all affirmative action, stepped forward—and he happened to be the most famous Wolverine in the country.

More than most ex-presidents, Gerald R . Ford kept his distance from political controversy after leaving office, but he retained a special in­ terest in the workings o f his alma mater. And in 1 9 9 9 , the eighty-six- year-old former varsity football star decided to make a public stand in support o f affirmative action at the University o f Michigan. H e wrote an op-ed piece in the New York Times entitled "Inclusive America, Under Attack." There Ford said, "A pair o f lawsuits . . . would pro­ hibit [ M i c h i g a n ] and other universities from even considering race as one o f many factors weighed by admission counselors." Such a move would condemn "future college students to suffer the cultural and so­ cial impoverishment that afflicted my generation."

O n September 1 5 , 1 9 9 9 , a month after the article ran, Ford had dinner with J a m e s M . Cannon, one o f his former W h i t e House aides, in Grand Rapids. (The two men were in town to hear a speech at Ford's presidential museum by his only appointee to the Supreme Court, J o h n Paul Stevens.) Ford encouraged Cannon to do what he could to help the university in the lawsuit, and the following day Cannon met with Bollinger in Ann Arbor. Cannon had served on the board o f visitors o f the U . S . Naval Academy, and he knew how impor-

T H E N I N E 213

tant affirmative action had been to the military, especially its officer corps. Cannon had been told many times that the navy did not want ships full o f enlisted men, who tended to be heavily minority, being commanded by all-white groups o f officers. Affirmative action wasn't social engineering; it was military necessity—a message that B o l ­ linger wanted to make sure the justices received.

T h e Michigan tactics in front o f the justices came to resemble a po­ litical campaign as much as a litigation strategy—which was fitting for a Court that hewed so closely to public opinion on controversial issues. Bollinger and his team knew that the key to winning O'Connor's vote, and thus the case, was mobilizing establishment support for affirmative action. Civil rights groups, even other univer­ sities, would be expected to support Michigan's position, but the jus­ tices had to know that support for affirmative action transcended what was left o f the traditional Democratic Party coalition.

Earlier, when the case was before the district court, Bollinger and Marvin Krislov, the university's general counsel, had persuaded General Motors to submit an amicus curiae, or friend o f the court, brief on behalf o f the university's program, focusing on the impor­ tance o f developing a diverse workforce for Michigan's most famous corporate citizen. In the Supreme Court, the university recruited sixty-five o f the Fortune 5 0 0 to sign a brief in support o f its affirma­ tive action program, and it would come to be endorsed by most o f the biggest and most respected companies in the country, including Boeing, Coca-Cola, General Electric, and Microsoft. As those compa­ nies told the justices in their brief, "Today's global marketplace and the increasing diversity in the American population demand the cross-cultural experience and understanding gained from [an educa­ tion where students] are exposed to diverse people, ideas, perspec­ tives, and interactions."

B u t the military was potentially an even greater ally for the univer­ sity. Active duty officers could not take a stand on such a controver­ sial issue, but the team that Ford set in motion sought out the next best thing—retired military officers. Krislov contacted Joseph Reeder, a Washington lawyer who had been undersecretary o f the army in the Clinton administration, and he began recruiting high- profile retirees to sign a brief. T h e group eventually included H. Norman Schwarzkopf, J o h n Shalikashvili, Hugh Shelton, W i l l i a m J . Crowe, and two dozen others. To write the military brief, the Michigan team recruited Carter Phillips and his colleague Virginia

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Seitz, pillars o f the Supreme Court bar and thus not at all usual sus­ pects in a civil rights case.

"Based on decades o f experience, amici have concluded that a highly qualified, racially diverse officer corps educated and trained to command our nation's racially diverse enlisted ranks is essential to the military's ability to fulfill its principal mission to provide national se­ curity," Phillips began his brief. Enlisted military were 2 1 . 7 percent African American, while the officer corps was only 8.8 percent black. "The officer corps must continue to be diverse or the cohesiveness essential to the military mission will be critically undermined," he continued.

T h e n , in the key section o f the brief, Phillips showed that the three major service academies—West Point, Annapolis, and Colorado Springs—all practiced race-conscious affirmative action in admis­ sions. (So did the broader R O T C program.) It wasn't enough to say that the military should simply recruit more in minority neighbor­ hoods; the armed services had to extend special treatment—affirma­ tive action—to its minority applicants. In other words, "At present, the military cannot achieve an officer corps that is both highly quali­ fied and racially diverse unless the service academies and the R O T C use limited race-conscious recruiting and admissions policies."

T h e implicit question at the heart o f the retired officers' brief was, i f affirmative action was good enough for the service academies, why wasn't it good enough for the University o f Michigan?

And that, precisely, was what Sandra O'Connor was asking herself.

17

THE GREEN BRIEF

The period leading up to the Grutter and Gratz decisions—the early part o f 2 0 0 3 — w a s not an easy time for O'Connor. Her husband John's condition had continued to deteriorate. H e had started to accompany her to work every day, and the justice hired his former secretary to keep an eye on him as he sat on the couch in her office, chatting or reading the newspaper. N o one uttered the word Alzheimer's at the Court, but the nature o f J o h n ' s problem was increasingly obvious to all.

The justice and her husband would arrive together in time for her exercise class in the morning, stay through their lunch together, and then return home at about two, when she would read briefs. Even then, they never stopped going out at night, to embassy parties, mu­ seum openings and the like, just as O'Connor had continued making the rounds fifteen years earlier, when she was weakened by her chemotherapy for breast cancer. In her forthright, determined way, O'Connor did not believe in making concessions to illness, her own or anyone else's.

O'Connor's own health was fine, despite a persistent tremor that she had had for years. For her morning exercise class, she added salsa dancing to step aerobics and Pilâtes. She still loved the work o f the Court and always sought more o f it. O'Connor never signed on to Rehnquist's crusade to cut the Court's docket and thus was always urging her clerks to scour the petitions for cases where she could vote for cert. "Find us some good cases!" she would say.

Still, like many older people, O'Connor resisted changes to her rou­ tine, especially the one promised by an impending renovation project at the Court. T h e building had not been upgraded since it opened in

216 Jeffrey Toobin

1 9 3 5 , and Rehnquist had prevailed upon Congress to fund a full over­ haul. Each o f the justices would have to vacate his or her chambers for a while, and O'Connor was slated to be the first evacuee, in 2 0 0 4 . A pack rat who loved her view and her office, especially now that J o h n was joining her there every day, O'Connor dreaded the prospect of moving to the Siberia o f the Court's second floor.

B y now, O'Connor usually had little trouble making up her mind about how to vote. She assigned one clerk to write a bench memo on each case to be argued and then invited the other clerks to write counter- memos i f they did not agree with their colleague's recommendation. This was the year that O'Connor cut back to a five-day schedule—there were no more crockpot lunches for her clerks on Saturdays—but she still went over each case with them before oral arguments. She did not ago­ nize. Having laid out her views for her clerks, she had them help her craft some questions for the lawyers for both sides. She didn't believe in playing devil's advocate, either. T h e tilt o f her questions at oral argu­ ment almost always showed the way she was going to vote.

B u t Grutter and Gratz were different. They were not easy cases for O'Connor. This time, she did agonize. In the first place, the stakes were enormous. Unlike some high-profile cases before the justices, the Michigan lawsuits had more than symbolic importance. Admissions de­ cisions for thousands o f students were at stake, and so, less directly, was all affirmative action in government and private companies. (In con­ trast, because there were so few actual prosecutions for sodomy, Lawrence v. Texas, which was argued the same year, had fewer immediate, real- world consequences.) In addition, O'Connor's favorite route through any problem—the middle o f the road—wasn't readily obvious. Either universities could consider the race o f their applicants or they couldn't; even O'Connor would have trouble finessing that kind o f choice.

In the weeks leading up to the argument, O'Connor sequestered herself in her office, poring over the briefs of the parties and the am­ icus briefs as well. Stewing over the Michigan cases at length—a rar­ ity in itself—she would pop out o f her office with cryptic and sometimes contradictory observations. She was thinking out loud.

"I need to be consistent with what I said in Croson and Adarand." T h i s suggested a vote for the plaintiffs. (O'Connor thought that a jus­ tice being inconsistent was . . . unattractive.)

"Race consciousness is a pernicious thing." B u t O'Connor also said: " W h a t i f these schools become all-white? Can we live with that?"

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"This isn't government contracting. T h i s is education. And Lewis said that education was different."

"Lewis" was Lewis Powell, O'Connor's mentor on the Court and her predecessor as its swing vote. T h e key precedent in the area was Powell's opinion from 1 9 7 8 in Regents of the University of California v. Bakke, where the Court struck down a rigid quota system for minorities at the state medical school at Davis. (In each year's class, the university reserved sixteen o f one hundred seats for minorities.) In that case, no opinion o f the Court commanded a majority, but Powell's came the closest and his view came to be considered the pre­ vailing law on the subject. Powell rejected the quota system at Davis, but he did say that universities could use race as one factor in admis­ sions. His reasoning was somewhat unusual for his time. In the sev­ enties, the main justification offered for affirmative action tended to be that the nation owed a special debt to blacks and other historically disadvantaged groups; because o f decades o f discrimination, mere equal treatment was not enough to provide them a fair chance.

B u t Powell justified affirmative action because o f what it did for everyone, not just for its immediate beneficiaries. In his view, diver­ sity—a buzzword that came into wide use only after Bakke—helped all students o f all races. "The nation's future depends upon leaders trained through wide exposure to the ideas and mores o f students as diverse as this Nation o f many peoples," Powell wrote, so "race or eth­ nic background may be deemed a 'plus' in a particular applicant's file." (Powell quoted at length from the admissions plan at Harvard College, which stated, in part, that "the race o f an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases.") In the subse­ quent twenty-five years, Powell's rationale had become the dominant intellectual justification for affirmative action—not as a handout to the downtrodden but as a net benefit to the society as a whole.

The question in Grutter and Gratz was whether Powell's ruling should remain on the books. As the justices emerged from behind the red curtain to hear argument on the morning o f April 1, 2 0 0 3 , not even O'Connor's clerks knew how she would vote.

The fact that the cases happened to be argued that month was cru­ cially important. Less than two weeks earlier, on March 2 0 , American

218 Jeffrey Toobin

and allied forces launched their invasion o f Iraq. In this initial period, the war looked like a tremendous success, as American troops cut through Iraqi resistance and stormed toward Baghdad. As a result, in the country and at the Court, the military was held in especially high regard. B y the morning o f the arguments in Grutter and Gratz, coali­ tion forces had closed to within about forty miles o f the Iraqi capital, and there was even more dramatic good news that day for the U.S. military. Army Pfc. Jessica Lynch, who had been kidnapped in Iraq on March 2 3 and thus become a symbol o f American determination, was freed in a raid by Special Operations forces. (Like the war itself, Lynch's story turned out to be more complicated than it originally seemed.) In short, though, the arguments in Grutter and Gratz took place at a moment when confidence in the American military was soaring.

In specific terms, there were two legal questions at issue. In light o f O'Connor's opinion in Croson, the Michigan lawyers knew that the Court would apply strict scrutiny to the affirmative action programs. So the first question was whether fostering diversity could ever be a "compelling interest"—that is, the kind o f factor that might lead the Court to allow the Michigan programs to withstand the usually fatal strict scrutiny. T h e second question, which would be reached only i f the first one was decided in Michigan's favor, was whether the under­ graduate and law school admissions programs were narrowly enough tailored to meet the goal o f advancing diversity.

O'Connor didn't make the lawyers wait long for her first question. T h e argument by K i r k K o l b o , who was representing Grutter in the law school case, had an elegant simplicity. For the university to con­ sider the diversity o f its applicants was fine—but only on the basis of experiences or perspectives or geography, not on the basis o f race. To K o l b o , the Constitution forbade any consideration o f race, as a plus or minus factor for any candidate.

"You say that race can't be a factor at all, is that i t ? " O'Connor asked. "Is that your position, that it cannot be one o f many factors?"

R i g h t , said K o l b o . "Our view, Your Honor, is that race itself should not be a factor among others in choosing students."

" W e l l , you have some precedents out there that you have to come to grips with"—mostly, she meant Bakke—"because the Court obvi­ ously has upheld the use o f race in making selections or choices in cer­ tain contexts," she replied. " B u t you're speaking in absolutes and it isn't quite that." As usual, O'Connor abhorred absolutes.

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B u t the turning point in the argument began when Ginsburg spoke up. "Mr. K o l b o , may I call your attention . . . to the brief that was filed on behalf o f some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding prefer­ ence but a plus for race," Ginsburg said. Would it really be acceptable to have no minorities in the service academies? K o l b o tried to dodge, saying there was no evidence in the record o f this case about the m i l ­ itary academies.

B u t Stevens followed up, saying there was good evidence about the academies: " I f the brief is accurate about the regulations, the acade­ mies have taken the position . . . they do give [racial] preferences." Souter, too, asked about the policies at the service academies. Again, Kolbo said he didn't know about the policies in Annapolis; this case was about Ann Arbor. B u t Stevens wouldn't let the subject alone. "Are you serious that you think there's a serious question about that? That we cannot take that green brief as a representation o f fact?" (Amicus briefs in the Supreme Court have green covers.) Kennedy jumped in with a question about "the green brief." Amicus briefs are rarely mentioned in Supreme Court oral arguments, but four justices had referred to the military brief in the first several minutes o f Grutter.

And the justices were just warming up on the subject. T h e posi­ tion o f the federal government in the Michigan cases had been so con­ troversial that ultimately President Bush himself had to resolve the issue. O n the day before the briefs in the case were due, Bush made an announcement, in a speech broadcast on live television, that the administration would oppose the Michigan program. "I strongly sup­ port diversity o f all kinds, including racial diversity in higher educa­ tion," he said. " B u t the method used by the University o f Michigan to achieve this important goal is fundamentally flawed. A t their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students based solely on their race." T h a t , he said, was "divisive, unfair, and impossible to square with the Con­ stitution." (Notably, in a television appearance later that week, Colin L. Powell, then the secretary o f state and a close friend o f several signers o f the military brief, declined to endorse the administration position.)

Bush's speech employed rhetoric that pleased his conservative base—and reflected the well-established views o f Scalia and

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T h o m a s — b u t the brief filed by Theodore B . Olson, the solicitor gen­ eral, took a more nuanced view o f the issue. Olson's brief carefully avoided the question o f whether a university could ever consider race in admissions—and took no position on whether Bakke should be overturned. H e said only that the Michigan programs amounted to quotas and should be rejected. T h a t was the position that Olson hoped to express when he stood up to argue in Grutter, but he never got the chance.

Before Olson could say anything, Stevens said, "General Olson. J u s t let me get a question out. You can answer it at your convenience. I'd like you to comment on Carter Phillips's brief. W h a t is your view o f the strength o f that argument? . . . That's the one about the gener­ als and about the military academies."

" W e respect the opinions o f those individuals," Olson said, "but the position o f the United States is that we do not accept the propo­ sition that black soldiers will only fight for black officers or the re­ verse." Olson was attacking a straw man, and the justices knew it. T h e retirees were not saying that blacks would only fight with blacks, they were saying that the military had a strong interest in an inte­ grated officer corps.

Ginsburg went after him next. " B u t you recognize, General Olson, that here and now, all o f the military academies do have race prefer­ ence programs in admissions?" H e did.

"Is that illegal what they're doing . . . a violation o f the Constitution?" Ginsburg followed up. This was an exquisitely diffi­ cult question. I f Olson said yes, he admitted that the federal govern­ ment was violating the law; i f he said no, he looked like a hypocrite. So Olson avoided the issue, saying he had not studied the admissions programs at the academies.

N e x t it was Souter's turn to wave the green brief, demanding to know how race-neutral recruiting could "respond to the position taken in Mr. Phillips's brief. . . . They simply will not reach a sub­ stantial number or be able to attain a substantial number o f minority slots in the class." Respectfully, Olson disagreed.

As its lead lawyer in the case, Michigan had hired Maureen Mahoney, and her presence was another reflection o f the university's political strategy o f tying its cause to the establishment. Before be­ coming a partner at Latham & Watkins, Mahoney had been a deputy solicitor general under Kenneth Starr and a law clerk to Rehnquist. (During the argument in Grutter, the chief slipped once and called her

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"Maureen.") A Republican, Mahoney had been nominated to a federal trial judgeship in Virginia during the last months o f the George H . W. Bush administration. T h e Senate never brought Mahoney up for a vote—John Roberts's original nomination to the D . C . Circuit suf­ fered the same fate—so she had the chance, like Roberts, to become one o f the leading Supreme Court advocates o f her generation. T h e fact that she came before the Court in Grutter bearing impeccable con­ servative credentials made her all the more appealing as Michigan's messenger.

B y the time Mahoney reached the podium, she could tell the Court was leaning her way. N o justice had really questioned the first issue before them—whether diversity was a legitimate goal—and the only question appeared to be whether Michigan had gone too far to achieve a worthy end. Mahoney deftly parried Scalia's and Kennedy's attempts to portray the Michigan program as a "quota," but then O'Connor came up with a question that had occurred to her while she was read­ ing Bakke.

"Ms. Mahoney, may I shift focus away from this to another point before you're finished that I am concerned about," O'Connor said. "In all programs which this court has upheld in the area o f what I'll label affirmative action, there's been a fixed time period within which it would operate, you could see at the end an end to it. There is none in this, is there? How do we deal with that aspect?"

O'Connor was raising one o f the more profound questions in American life. W h e n will race no longer matter? T h e question cap­ tured O'Connor's ambivalence on the issue o f affirmative action—and her practical, solution-oriented turn o f mind. To her, racial prefer­ ences were a dubious and extreme remedy at best, and she wanted to make sure they were not enshrined for all time. So how much longer would they be needed?

Mahoney answered with an artful segue: " W e l l , in Bakke itself, Your Honor, there were five votes to allow the University o f California, Davis, to use a plan modeled on the Harvard plan. It's been in effect for about 2 5 years. It has reaped extraordinary benefits for this country's educational system." T h e answer planted a seed.

Most o f the public attention on Grutter and Gratz—the law school and undergraduate cases—treated the two cases as a single contro-

222 Jeffrey Toobin

versy, but there were significant differences between the two admis­ sions programs. To narrow the 3 , 5 0 0 law school applicants to a class o f 3 5 0 , Michigan evaluated each candidate individually, guided by a "focus on academic ability coupled with a flexible assessment of appli­ cants' talents, experiences, and potential to contribute to the learning o f those around them." T h e undergraduate admissions assessment was more strictly numerical, with each student evaluated on a 150-point scale, with students who received more than 1 0 0 points guaranteed admission. Points were awarded for high school grade-point average, standardized test scores, and other non-racial factors, but status as a minority also earned applicants an automatic additional 2 0 points.

As O'Connor prepared to cast her vote in conference, the difference between the two programs loomed large for her. T h e undergraduate program was not exactly a quota, as Bush had claimed, but its rigid­ ity—the fact that all "underrepresented" minorities were given the exact same number o f points—offended O'Connor. In contrast, the law school procedure looked more like the Harvard program that was praised by Powell in Bakke. It allowed each applicant to be treated as an individual. Once again, she decided to split the difference—to vote for Gratz and against Grutter. (Breyer voted the same way, affirming the growing ideological as well as personal alliance between him and O'Connor.) T h e others voted more predictably, Rehnquist, Scalia, Kennedy, and Thomas for both plaintiffs; Stevens, Souter, and Ginsburg for the university. T h e overall votes were 5 - 4 for the uni­ versity in Grutter, the law school case; 6—3 for the rejected student in Gratz, the undergraduate case.

Grutter would clearly be the more important case, because it would be the one where the five justices outlined when and how race would be permitted to be considered as a factor in university admissions. (The six-justice majority in Gratz could say only that the undergrad­ uate program did not meet the new Grutter standard.) T h e central question coming out o f the conference was who would write the main opinion.

T h e decision was up to Stevens, because he was senior among O'Connor, Souter, Ginsburg, and Breyer. (Rehnquist assigned Gratz to himself.) Only a week earlier, Stevens had given the majority opin­ ion in the other big case o f the term, Lawrence v. Texas, to Kennedy. Would Stevens really be selfless enough to hand off Grutter as well? H e had just turned eighty-three. How many more big opinions could

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he expect to come his way? Stevens took the weekend to think it over, and, following a conversation with O'Connor, he gave her Grutter to write.

Stevens's decision took wisdom and selflessness. O'Connor was clearly the shakiest member o f the majority in Grutter, and i f Stevens had kept the case for himself—as many other justices m i g h t have done in similar circumstances—he m i g h t ultimately have lost her vote and thus the majority. B u t Stevens cared more about the issues and less about his own ego; he could sacrifice high-profile assignments more easily than some o f his colleagues. Besides, Stevens knew better than most that it took a long time, sometimes decades, for the real winners in Supreme Court jurisprudence to emerge. In 1 9 8 6 , Stevens had written a powerful, i f little-noticed, dissenting opinion in Bowers v. Hardwick, the case that upheld the homosexual sodomy prosecution in Georgia. (Harry Blackmun's more rhetorically flashy dissent drew most o f the attention in that case.) B u t when it came time for Bowers to be overruled in 2 0 0 3 , in Lawrence, Kennedy drew heavily on Stevens's seventeen-year-old opinion. So, with the shrewdness o f age, Stevens handed the prize Grutter assignment—the biggest case since Bush v. Gore—to O'Connor.

Even though O'Connor's clerks wrote the first drafts o f her opinions, they still had a distinctive style—or antistyle. She would never in­ dulge in a Kennedyesque flourish like "the right to define one's own concept o f existence, o f meaning, o f the universe, and o f the mystery o f human life"; nor would she, like Scalia, assert that an opposing ar­ gument was "really more than one should have to bear." She lined up the facts, usually laid out in some detail, summarized the relevant law, and applied the law to the facts. To O'Connor, the result always mattered more than the rhetoric. She usually began with a crisp state­ ment o f the issue at hand. In Grutter, it was: "This case requires us to decide whether the use o f race as a factor in student admissions by the University o f Michigan Law School is unlawful."

O'Connor had a clear model for her opinion in Grutter—Powell's statement in Bakke. She recounted the Michigan law school's admis­ sion procedures in detail, noting the university's broad c o m m i t m e n t to diversity o f all kinds, not just "racial and ethnic status." O'Connor

224 Jeffrey Toobin

said that Michigan sought a "critical mass" o f minority students, but, significantly, there was "no number, percentage, or range o f numbers or percentages that constitute critical mass." Rather, as the lower court in the case held, "the Law School's program was 'virtually iden­ tical' to the Harvard admissions program described approvingly by J u s t i c e Powell and appended to his Bakke opinion." O'Connor then summarized Powell's opinion at length, noting that he "approved the university's use o f race to further only one interest: 'the attainment o f a diverse student body.' "

As for whether "diversity" was a "compelling state interest," O'Connor said she trusted universities to make that judgment on their own, without guidance from the courts, because "universities occupy a special niche in our constitutional tradition." This observa­ tion wasn't just a gesture o f deference to educational institutions but also a way o f doing what O'Connor often tried to do, which was limit the reach o f the Court's opinion. She was taking pains to approve af­ firmative action at universities, but she was not ruling on the practice in other contexts, like employment or contracting.

O'Connor next turned to the subject that dominated the oral argu­ m e n t — t h e brief from the retired military officers. She quoted Carter Phillips's brief at length and then, in an extraordinarily rare tribute, simply adopted its words as part o f the Court's opinion: "To fulfill its mission, the military 'must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.' " Before submitting his brief, Phillips had worried that the Court m i g h t observe (correctly) that there were big differences between a military service academy and a law school, and thus find no relevance o f one to the other; but O'Connor did just the opposite. Quoting the brief again, she wrote, " W e agree that 'it requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective.' "

In all, considering the oral argument and O'Connor's opinion, the submission from the retired officers may have been the most influen­ tial amicus brief in the history o f the Court. In notable contrast, O'Connor disdained the Bush administration's brief in the case. She respected Olson, the solicitor general, but she regarded his brief as a political document, the product o f an administration from which she was growing more and more estranged.

T h e draft by O'Connor's clerk did not address her last question to

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Mahoney—about when affirmative action would no longer be needed. O'Connor regarded race consciousness as nothing more than a neces­ sary, or at least permissible, evil. She did not want to see it go on for­ ever. B u t how could she or anyone else fix an ending date?

After twenty-two years on the Court, many o f them as the most important vote, O'Connor had an abundance o f self-confidence, so she simply made up a time limit. She told a clerk to write an insert: "It has been 2 5 years since J u s t i c e Powell first approved the use o f race to further an interest in student body diversity in the context o f public higher education. Since that time, the number o f minority applicants with high grades and test scores has indeed increased. W e expect that 25 years from now, the use o f racial preferences will no longer be nec­ essary to further the interest approved today."

T h e imposition o f the time limit was O'Connor at her worst—and her best. To be sure, O'Connor was "legislating from the bench," in the accusatory term that conservatives like Bush used to describe ac­ tivist judges. From the vague commands o f the Constitution, she was extrapolating not just a legal rule but a deadline as well. To original- ists like Scalia and Thomas, this was simple judicial arrogance. And one need not be an originalist, or even a conservative, to have qualms about O'Connor's proclamation. B y what right does an unelected judge impose such detailed rules on a society? And i f the practice will be unconstitutional in twenty-five years, why isn't it illegal now?

"The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that time frame," Thomas noted in his dissent. "No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 2 5 years. N o r is the Court's holding that racial discrimination will be unconstitu­ tional in 2 5 years made contingent on the gap closing in that time." Moreover, i f O'Connor could legislate in this matter on affirmative action, what was to stop her colleagues from establishing codes o f behavior in other areas? T h e answer, o f course, was that the only re­ straints on the judge in such circumstances are his or her conscience and savvy.

And that, ultimately, is the best defense o f what O'Connor did. O n affirmative action, she picked a result, and reached a compromise, that was broadly acceptable to most Americans. There was no formal l i m i t on her power, but O'Connor's extraordinary political instincts let her exercise her authority in a moderate way. In some basic, almost pri-

226 Jeffrey Toobin

mal manner, O'Connor understood that twenty-five more years of racial preferences seemed the right amount o f time. It is a scary prospect to consider what other justices in the Court's history, includ­ ing some o f her contemporaries, would have done with the power that O'Connor arrogated to herself. Her judicial approach was indefensible in theory and impeccable in practice.

T h e Michigan cases were something o f a rout for the conservatives. Kennedy wrote a separate opinion in Grutter saying that he, like Powell in Bakke, approved o f the use o f race in admissions but that the Michigan law school procedure looked too much like a quota for him to approve. Even Rehnquist avoided taking a stand on whether race could ever be considered. Only two justices, Scalia and Thomas, said directly that any use o f race in admissions always violated the Constitution.

Thomas, probably the nation's most famous beneficiary o f affirma­ tive action, wrote a passionate opinion denouncing the practice. He quoted the words o f his hero Frederick Douglass: " W h a t I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. T h e American people have always been anxious to know what they shall do with us. . . . All I ask is, give him a chance to stand on his own legs! Let him alone!" For all its rhetorical power, Thomas's opin­ ion represented only a fringe view—on the Court and in the nation at large.

Among the justices, especially Kennedy and O'Connor, the p o s t - Busb v. Gore move to the left continued—and to some extent acceler­ ated—after Grutter. Even Rehnquist almost brought what remained o f his own federalism revolution to a close; he wrote the opinion in Nevada v. Hibbs, which upheld the authority o f Congress to pass the Family and Medical Leave Act o f 1 9 9 3 , a central accomplishment of the Clinton administration.

T h e n , in a complex series o f cases, the Court struck down state and then federal criminal sentencing guidelines, against the wishes o f the Bush administration. B y a 6 - 3 vote, it overturned the Child Pornography Prevention A c t , which made it a crime to create or pos­ sess "virtual" pornography, which used enhanced computer imaging rather than actual children. Even in several major criminal cases, the Court sided with the defendant and overturned convictions.

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After 2 0 0 0 , the majority in Bush v. Gore—Rehnquist, O'Connor, Scalia, Kennedy, and T h o m a s — m i g h t have taken full control o f the Court, but something close to the opposite took place. T h e i r coalition crumbled. In the 2 0 0 2 term, only five o f the fourteen 5 - 4 decisions were decided by the bloc that prevailed in Bush v. Gore; in the 2 0 0 3 term, it was nine o f nineteen; in the 2 0 0 4 term, it was four o f twenty- two such cases. At first it was the legacy o f Bush v. Gore that turned O'Connor and Kennedy toward their more liberal colleagues. Later, it was the Bush administration itself.

18

The burst o f confidence in the military, and in the Bush administration, following the invasion o f Iraq in the spring o f 2 0 0 3 was short-lived. A month after the argument in Grutter, on an aircraft carrier off the coast o f San Diego, the president addressed a cheering crowd underneath a banner that read "Mission Accomplished." B u t almost from that moment, the fortunes o f the American occupation turned. A determined guerrilla insurgency killed more than three thousand American service members. Many thousands more Iraqis died. Elections were held, a constitution was passed, and a new government was established, but the American ex­ perience in Iraq turned out to be considerably more difficult than it had initially appeared. And just as the war turned sour, the first cases growing out o f the administration's broader war on terrorism reached the Supreme Court. They concerned an idyllic stretch o f Caribbean coastline known as Guantanamo Bay.

After American and Cuban forces evicted the Spanish from Cuba in 1 8 9 8 , the United States military remained on forty-five square miles along the southern coast o f the island. T h e American presence became official with a treaty signed by the two nations in 1 9 0 3 , eventually setting an annual rent at $ 4 , 0 8 5 . To this day, the American govern­ ment offers payment to the Cuban government every year, but during the nearly five decades that Fidel Castro has been in power, his gov­ ernment has accepted it only once.

T h e war in Afghanistan created an unprecedented level o f activity at Guantanamo Bay and gave it international notoriety. On January 1 0 , 2 0 0 2 , the military began moving prisoners there from Afghan­ istan, and all the armed services, not just the navy, were asked to run

"OUR EXECUTIVE DOESN'T"

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J o i n t Task Force Guantânamo. In a press conference that same day, Donald Rumsfeld, the secretary o f defense, said that the prisoners were "unlawful combatants" who "do not have any rights under the Geneva Convention." Among the rights granted by the Geneva Conventions is the right to an individual hearing to determine the status o f each prisoner.

A chorus o f international condemnation—from the United Nations, the European Union, and the Organization o f American States, among others—cried out against the American government. B u t within the United States, in the fevered aftermath o f the September 11 attacks, the Guantânamo detention and interrogation facility drew little notice and less controversy—at first.

The prisoners at Guantânamo, who eventually numbered about six hundred, were all accused Al Qaeda or Taliban members picked up on battlefields in Afghanistan and neighboring countries—the "worst o f the worst," as one American official put it. T h e notion that such de­ spised and dangerous individuals m i g h t be able to challenge their in­ carceration in an American courtroom initially seemed close to outlandish. They were held in a foreign country; they were virtually incommunicado, limited to a single letter to a family member; they were allowed no visitors. B u t in early 2 0 0 2 , the family o f an Australian national named David Hicks who was being held in Guantânamo reached out to lawyers at the Center for Constitutional Rights in New York, who agreed to file a lawsuit.

It was no coincidence that only the C C R , which stands well to the left o f the American Civil Liberties Union in the spectrum o f liberal legal interest groups, chose to challenge the American detention pol­ icy. In the early stages o f the suit, the lawyers in charge could not have differed more from those directing the Michigan effort on affirmative action, with its roster o f retired generals, corporate leaders, and a for­ mer Republican president. Led by a Minneapolis lawyer named Joseph Margulies, the C C R team sought assistance from several ma­ jor Washington lawyers and law firms and were turned down by all. Guantânamo seemed nearly a fringe cause.

B u t as the case moved through the federal courts, and the near hysteria o f the September 11 aftermath faded, the claims for the Guantânamo prisoners looked more plausible. T h e Bush administra­ tion had created an unusual legal category for those held on the American base. They were not criminal defendants, subject to the protections o f the U . S . Constitution, but neither were they prisoners

230 Jeffrey Toobin

o f war, whose treatment had long been governed by the Geneva Con­ ventions.

Rather, the Guantanamo detainees were labeled "enemy combat­ ants," who could be held and interrogated until the war on terror was over—that is, indefinitely. One reason the military refused to treat the Guantanamo detainees as P O W s was because, under the conventions, such prisoners may not be interrogated. And Guantanamo was de­ signed from the start as an interrogation facility where prisoners could be questioned in total isolation, day after day and month after month, without outside interference or knowledge.

Furthermore, the government asserted in response to the C C R law­ suit, the plaintiffs had no right even to file the case. Because the de­ tainees were non-American citizens held in Cuba and that nation had "ultimate sovereignty" over the base, the lawsuit was the equivalent o f a foreigner's filing a case from an overseas battlefield—something that American courts never allowed. T h e lower courts agreed and ul­ timately dismissed the case, which came to be known as Rasul v. Bush. Ironically, Shafiq Rasul himself was among the first prisoners released from Guantanamo, while the case was pending before the Supreme Court; still, his name remained as lead plaintiff. Two related cases, concerning the similarly unlimited detention within the United States o f American citizens named Yaser Hamdi and Jose Padilla, worked their way toward the Court at the same time.

After the Supreme Court granted cert in Rasul, Hamdi, and Padilla, in late 2 0 0 3 and early 2 0 0 4 , the Bush administration began to take the cases more seriously. A t last, after two years, it allowed Hamdi and Padilla to meet with their lawyers. Secretary Rumsfeld an­ nounced that the military was creating "administrative review boards" to evaluate the status o f each prisoner in Guantanamo. The procedures gave the detainees no right to counsel, no right to confront the witnesses against them, and no right o f appeal, but they allowed administration lawyers to say the government was at least doing something to assess whether the detainee deserved to remain in cus­ tody. T h e government also asserted that the prisoners had no right even to this meager procedural safeguard; it had been provided "solely as a matter o f discretion and does not confer any right or obligation enforceable by law." Mostly, the Bush position remained un­ changed—that the war on terror meant that the Guantanamo prison­ ers deserved no rights, or even a day, in an American courtroom.

T h e Bush legal team, led by Ted Olson, the solicitor general,

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brought the same moral certainty to the Supreme Court that the Republican political operation put forth to voters. T h e issues were straightforward, the choices binary: the United States or the terror­ ists, right or wrong. Standing up to argue in Rasul, Olson laid the same kind o f choice before the Court. "Mr. C h i e f J u s t i c e , and may it please the Court: T h e United States is at war," Olson began with heavy portent. "It is in that context that petitioners ask this Court to assert jurisdiction that is not authorized by Congress, does not arise from the Constitution, has never been exercised by this Court."

B u t i f this kind o f talk was intended to intimidate the justices, as it cowed so many others, the tactic did not work. Indeed, it backfired. "Mr. Olson, supposing the war has ended," Stevens jumped in, "could you continue to detain these people on Guantânamo?" O f course we could, Olson said. In other words, the military could detain Rasul and the others whether or not there was a war.

"The existence o f the war is really irrelevant to the legal issue," Stevens said.

"It is not irrelevant because it is in this context that that question is raised," Olson replied weakly.

"But your position does not depend on the existence o f a war," Stevens insisted, and Olson had to concede it did not. So in just the first moments o f the argument, Stevens had shown that the Bush ad­ ministration was claiming not some temporary accommodation but rather a permanent expansion o f its power for all time, in war or peace. And Stevens was showing further that Olson's rhetorical flourish— "The United States is at war"—was nothing more than posturing.

T h e following week, on April 2 8 , the Hamdi and Padilla cases were argued, and again the administration put forth its view o f unchecked executive authority. J o s e Padilla, an American citizen, had been ar­ rested at O'Hare airport in Chicago and held indefinitely on suspicion of ties to Al Qaeda. According to the J u s t i c e Department, even though Padilla was an American citizen held on American soil, he had no right to challenge his incarceration, even i f he wound up being imprisoned for the rest o f his life. Paul Clement, the deputy solicitor general, as­ serted to the justices that Congress's authorization o f the "use o f all necessary and appropriate force" following the September 11 attacks justified the unlimited detention o f Padilla. In Clement's view, the courts had no right to stop—or even hold a hearing about—Padilla's incarceration, because he was classified as an enemy combatant.

In response, Ginsburg asked a farfetched hypothetical question to

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test the limits o f the government's position. " W h a t inhibits it? I f the law is what the executive says it is, whatever is 'necessary and appro­ priate' in the executive's judgment," she said. "So what is it that would be a check against torture?"

" W e l l , first o f all there are treaty obligations," Clement said, "but the primary check is that just as in every other war, i f a U . S . military person commits a war crime, by creating some atrocity on a harmless detained enemy combatant or a prisoner o f war, that violates our own conception o f what's a war crime and we'll put that U . S . military of­ ficer on trial in a court-martial."

B u t Ginsburg pursued the issue. "Suppose the executive says, 'Mild torture, we think, will help get this information.' It's not a soldier who does something against the code o f military justice, but it's an executive command. Some systems do that to get information."

" W e l l , " Clement replied, his voice touched with a hint o f indigna­ tion, "our executive doesn't."

About eight hours later, on the evening o f the arguments in Hamdi and Padilla, the C B S News program 60 Minutes II broadcast photo­ graphs o f U . S . Army personnel documenting physical and sexual abuse o f prisoners at Abu Ghraib prison. T h e photographs, which im­ mediately became symbols o f the war, showed U . S . soldiers posing be­ side naked Iraqi prisoners stacked in a human pyramid, as well as a prisoner who was forced to stand on a box, his head covered by a hood and electric wires apparently attached to his body. ( C B S executives had withheld the report for two weeks at the request o f Defense Department officials but went ahead with the broadcast when they learned that The New Yorker was planning a report on the subject by Seymour Hersh. T h e magazine story was released on May 1.) As Margulies, the lawyer for Rasul and other Guantanamo detainees, re­ called afterwards, "These photos proved to be the most powerful am­ icus brief o f all."

T h e Abu Ghraib disclosure set off several months o f intense public attention to the issue o f torture by American personnel in Iraq and Guantanamo. T h e investigations revealed extensive abuse o f prisoners in Iraq by low-level military personnel but, more importantly, consid­ erable support for torture at the highest levels o f the Bush adminis­ tration. W h i l e the justices were preparing their opinions in Rasul,

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Hamdi, and Padilla in J u n e 2 0 0 4 , the most sensational document on the subject came to light—the "torture memo." In the summer o f 2 0 0 2 , Alberto R . Gonzales, then the W h i t e House counsel, had asked the J u s t i c e Department to research the question o f whether U . S . per­ sonnel involved in the war on terror were constrained by the federal law, which bans "cruel, inhuman, or degrading treatment" either in­ side or outside the United States.

T h e response came on August 1, 2 0 0 2 , from J a y Bybee and J o h n Yoo, two senior officials who gave a virtually unrecognizably narrow definition o f torture, which the law said was "severe physical or men­ tal pain or suffering." To these lawyers, "physical pain amounting to torture must be equivalent in intensity to the pain accompanying se­ rious physical injury, such as organ failure, impairment o f bodily function, or even death. For purely mental pain or suffering to amount to torture, . . . it must result in significant psychological harm o f significant duration, e.g., lasting for months or even years." W h a t was more, Bybee and Yoo said, the president had inherent au­ thority to overrule the statute and direct any interrogation technique that he believed was necessary. B y the time the torture m e m o was re­ leased, Bybee had already been confirmed to a federal appellate judge­ ship and Yoo had returned to a professorship at the law school o f the University o f California at Berkeley. Yoo had been a law clerk to Thomas, and several other former Thomas clerks had also played im­ portant roles in formulating the Bush administration's legal justifica­ tions for the war on terror.

It is too simplistic to say that the disclosures about Abu Ghraib and torture policy determined the outcome o f the Supreme Court's rulings in the three terrorism cases, but it is surely true that the news had an impact. In any event, the cases turned into humiliating defeats for the administration. In Rasul, the main case, the Court ruled 6 - 3 that the Guantânamo detainees did have the right to challenge their incarceration in a U . S . district court. In Hamdi, the Court again ruled 6 - 3 that the government could not prevent an American citizen from challenging his or her detention in federal court. In Padilla, the Court gave the administration a purely procedural victory, ruling only that the plaintiff should have brought his case in South Carolina instead o f New York.

Stevens may have given the Lawrence case to Kennedy and Grutter to O'Connor, but he wasn't giving the Rasul assignment away. As for so many other men o f his generation, the defining event o f Stevens's

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youth was his service in World W a r I I . Stevens had been raised in comfortable circumstances; his family built and ran the Stevens Hotel, a block-long Chicago landmark that was later renamed the Chicago Hilton. Stevens graduated from the University o f Chicago, Phi B e t a Kappa, in 1 9 4 1 and planned to go to graduate school to study Shakespeare. B u t on the eve o f American involvement in the war, several o f his professors were working as talent spotters for the Navy, and they prevailed on him to sign up. Stevens did, on December 6 , 1 9 4 1 , allowing him to joke that his enlistment prompted the attack on Pearl Harbor the following day.

Stevens served in the Pacific for four years on the staff o f Admiral Chester N i m i t z and won a bronze star. H e did intelligence work, helping to break Japanese codes, and in later years often spoke o f his pride in his service. His intense patriotism prompted the most out- of-character vote o f his judicial career, when he sided with the conser­ vatives in the famous flag-burning case o f 1 9 8 9 . In his dissent in that case, Stevens said burning the flag was not protected by the First Amendment, because "it is more than a proud symbol o f the courage, the determination, and the gifts o f nature that transformed 13 fledg­ ling Colonies into a world power. It is a symbol o f freedom, o f equal opportunity, o f religious tolerance, and o f goodwill for other peoples who share our aspirations."

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

Most notoriously, during World W a r I I the justices upheld the ex­ clusion o f American citizens o f Japanese ancestry from the West Coast in Korematsu v. United States. (Fred Korematsu himself submitted an amicus brief in support o f Rasul.) Stevens knew that history and was determined not to replay it. And the disclosures that took place while the cases were pending—about A b u Ghraib and the torture m e m o — made the credibility o f the administration's representations to the

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Court much more suspect. Suddenly, it was the Bush administration itself, not the plaintiffs' leftist lawyers, that looked outside the main­ stream o f 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 o f the administration's key argument in Rasul. Olson had maintained that the navy base in Guantânamo was really Cuban soil and to allow a lawsuit there was inviting litigation on a foreign battlefield. B u t as Stevens put it in his opinion, " B y the express terms o f its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantânamo Bay Naval Base, and may continue to exercise such con­ trol permanently i f it so chooses." T h e entire reason that the military took the detainees to such a remote outpost was because the base of­ fered total freedom from outside interference. Allowing lawyers to visit prisoners in Guantânamo and letting them conduct litigation of­ fered no risk at all o f escape or disruption—something that could not be said for many prisons within the United States. Even Scalia's dis­ sent, 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 repudi­ ation o f Bush's position was even more complete, and the author o f the majority opinion was O'Connor, that reliable vector for the views o f 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 com­ mitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the princi­ ples for which we fight abroad."

O'Connor had become an evangelist for the cause o f judicial inde­ pendence, and she used Hamdi to remind the administration that this Court—her Court—would never become a rubber stamp: "The posi­ tion that the courts must forgo any examination o f the individual case and focus exclusively on the legality o f the broader detention scheme cannot be mandated by any reasonable view o f separation o f powers, as this approach serves only to condense power into a single branch o f government. W e have long since made clear that a state o f war is not

2 3 6 Jeffrey Toobin

a blank check for the president when it comes to the rights of the Nation's citizens." I f there was any doubt what O'Connor meant, she waved the bloody shirt o f one o f 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 o f some kind but that he did not necessarily have to receive the full protec­ tions afforded a criminal defendant. Scalia, o f all people, wrote a dis­ senting opinion (joined by Stevens, an unfamiliar bedfellow) saying that the Bush administration's entire concept o f detention o f 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 re­ leased immediately. "The proposition that the Executive lacks indefi­ nite wartime detention authority over citizens is consistent with the Founders' general mistrust o f military power permanently at the Executive's disposal," Scalia the originalist added. "Whatever the general merits o f the view that war silences law or modulates its voice, that view has no place in the interpretation and application o f a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it." Only a sin­ gle justice, Thomas, accepted the administration's position.

Rasul and Hamdi were notable also for the fact that on these most cru­ cial cases about the nature o f 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.

T h e relative invisibility o f a c h i e f justice on matters o f such mag­ nitude 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 J u s t i c e Department during the Nixon years, and then on the Court, Rehnquist had been an outspoken proponent o f execu­ tive power versus the other branches o f government. Like federalism, it was a signature issue for him. Rehnquist signed on to O'Connor's harsh scolding o f Bush, but did he really believe it? His silence was a mystery.

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In truth, Rehnquist was a tired old man in the spring o f 2 0 0 4 . And he had grown cynical about the work o f 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 princi­ ples in the case. J u s t make sure that the result is a good one this time around—because those principles you announce will be ignored in the next case." T h e 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 o f the war on terror. Even the so-called federal­ ism revolution had dwindled, i f not to insignificance, then to modest evolution. T h e Lopez case had suggested that the Court really m i g h t cut back on the authority o f Congress to pass laws under the Commerce Clause; the Court did no such thing. T h e Constitution in Exile remained in exile. Thanks to Rehnquist, the Court had limited the ability o f Congress to pass laws that allowed the states to be sued in federal court—a real achievement, to be sure, but also, in the his­ tory o f 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 o f the Court hadn't changed, either. It had been ten years since Breyer replaced B l a c k m u n — a decade without a new justice—which amounted to the longest period o f stability in the his­ tory o f the nine-justice Court.

In keeping with the collégial spirit o f Rehnquist's Court, the spouses o f the justices held a surprise party on January 2 3 , 2 0 0 3 , to celebrate the new record for the nine. (There were no changes from 1 8 1 2 to 1 8 2 3 , but the law provided for only seven justices at that time.) In 2 0 0 4 , 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. H e had spoken candidly o f his belief that jus­ tices should hand their seats to the party o f the presidents who ap-

238 Jeffrey Toobin

pointed them, and George W. Bush's conservative politics reflected his own.

B u t 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. H e liked his job and his colleagues. His health was sat­ isfactory, i f not robust. W i t h 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 o f the job, and he was good at it. I f he had lost some interest in the intricacies o f Supreme Court doctrine or come to doubt the importance o f each word he left behind in the Court's archives, the benefits o f the job still outweighed the ap­ peal o f retirement. T h e choice came down to being chief justice o f 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. B y the end o f the term in 2 0 0 4 , the presidential campaign was well under way. T h e Democrats were sure to stall any nomination until after the election, which promised to be close. A tra­ ditionalist 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 o f the disputed presidential election o f 1 8 7 6 — h i s own Bush v. Gore legacy—had been published in the spring. H e returned to Washington in time for his eightieth birthday on October 1, 2 0 0 4 , and to await the beginning o f the new term, on the first Monday, three days later.

There was a problem. Rehnquist had a sore throat that he couldn't shake. T h e 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 1 3 , the chief's voice had faded to a husky rasp al­ most unrecognizable from the voice in which he had announced the Padilla decision in J u n e . W i t h a three-week break until the next set o f arguments, Rehnquist decided to visit a doctor.

T h e diagnosis did not take long. H e had anaplastic thyroid cancer, an especially aggressive and almost invariably fatal form o f the dis­ ease. (In recent years, Rehnquist had for the most part cut back to a single cigarette a day, but a lifetime o f smoking almost certainly con­ tributed to his illness.) O n Friday, October 2 2 , he checked into Bethesda Naval Hospital and underwent a tracheotomy, which in-

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volved placing a tube through a hole in his throat to help him breathe. T h e next Monday, October 2 5 , the Office o f 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 o f thyroid cancer is generally curable, and the announcement did not say what kind he had.)

B u t Rehnquist did not even leave the hospital until October 2 9 , and he was clearly in no condition to return to the bench. O n November 1, he released a statement that said his original prediction of a return was "too optimistic" and that he would be receiving "ra­ diation 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 peo­ ple at the Court knew anything about his condition. B u t the length of Rehnquist's absence and the nature o f his treatment left the impres­ sion, which was correct, that he had the devastating, anaplastic ver­ sion o f the disease. On the morning o f November 1, J o h n 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 , 2 0 0 4 , George W. Bush won a narrow vic­tory over J o h n Kerry, and this time the president needed no assistance from the Supreme Court. I f Bush had lost, he would have joined J i m m y Carter as the only presidents in American history to serve full terms without having the chance to make an ap­ pointment to the Court. B u t the sudden announcement o f Rehn­ quist's illness on the eve o f the election made clear that Bush would soon have such an opportunity. I t took less than a day for the politi­ cal 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. W h e n he was first elected, in 1 9 8 0 , the Senate abounded in such figures, like Robert Packwood, Mark Hatfield, Lowell Weicker, Charles Mathias, and J o h n Heinz, but by 2 0 0 4 the rightward tilt o f the national G O P had pushed the number o f mod­ erates almost to insignificance. Specter had moved so far away from the base o f 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.

O n Wednesday, November 3 , Specter held his traditional p o s t - 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 chair­ man o f the Senate Judiciary Committee. Repeating a view he had ex­ pressed many times, Specter told the reporters he regarded the

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protection o f 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.

B u t Specter was about to learn once more how much his party had changed. Virtually overnight, as news o f 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 de­ nied the chairmanship. Protesters chanted outside his office, and tele­ phone calls inundated the Senate switchboards. One Republican senator even added a new option to the automatic phone-answering service in his office: "Press 3 i f you're calling about who should be chairman o f the Senate Judiciary Committee." O n November 1 7 , Specter was forced to implore his Republican Senate colleagues not to withhold the prize for which he had waited so long. Following sepa­ rate 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 con­ tinuing as Judiciary chairman, Specter explained the deal. "I have not and would not use a litmus test to deny confirmation to prolife nom­ inees," Specter said in the weary monotone o f a Soviet prisoner forced to confess his ideological errors. "I have voted for all o f 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 Presi­ dent Bush finds worthy o f nomination."

Specter had survived to serve as chairman o f the committee, but the message to him was unmistakable. Conservatives had waited four­ teen years for a Republican president to nominate someone to the Supreme Court, and this time they wanted a true believer. Seven o f the nine current justices had been appointed by Republicans—and still the Court continued to disappoint conservatives. T h e core o f 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 J a m e s Dobson and J a y Sekulow, empowered by their critical role in Bush's reelection, were demonstrating precisely what mattered most to them—control o f the Supreme Court.

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Two months later, the world saw W i l l i a m Rehnquist for the first time since his illness had been announced in the fall. On January 2 0 , 2 0 0 5 , Rehnquist made an unsteady journey down the platform steps in front o f the Capitol to administer the oath o f office to George W. Bush. W i t h his administrative assistant, Sally Rider, closely monitor­ ing 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 affec­ tation said to have been added to the constitutional oath by George Washington and recited ever since, Rehnquist told the president, "Congratulations." T h i s was a different salute from the ambiguous "Good luck" he offered to B i l l Clinton on January 2 0 , 1 9 9 7 , a week after the Court heard arguments in the Paula J o n e s case. Rehnquist left before Bush's inaugural address, having been present for only thir­ teen minutes.

N o one studied the chief more carefully than the other eight jus­ tices. Only Stevens and O'Connor had been allowed to make brief vis­ its to his home. T h e others had not seen him at all. Rehnquist listened to tapes o f 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 im­ mediate staff, so the Court functioned normally even though he was not on the premises. Rehnquist had a strong sense o f responsibility about his obligations, and he was meticulous about making sure that the Court did not suffer from his illness. He gave no hint i f he was thinking o f resigning.

As in most other terms, the justices disposed o f the easy cases in its first few months. Year in and year out, about 4 0 percent o f the Court's opinions are unanimous, and many more draw just a mild dissent or two. During the first months o f Rehnquist's absence, the Court did a pretty good job o f 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. T h e case had been argued on the morning o f October 1 3 , Rehnquist's last day on

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the bench, and the decision was handed down on March 1. T h e chief, silent once more in a major case—one that amounted to yet another demonstration that the Court's center o f gravity had moved to the left—joined Scalia's dissent.

O'Connor and Kennedy were the chief beneficiaries o f this ideolog­ ical shift, as they controlled the outcome o f more cases and won as­ signments from Stevens for such opinions as Lawrence, Grutter, and Hamdi. B u t in his customary quiet way, David Souter was also swept up in the change, which helped pull him out o f his post-Bush v. Gore funk.

Souter had minimal financial obligations and a lifestyle that hovered somewhere between modest and ascetic. H e had no wife, no children, a venerable family homestead in New Hampshire, and a small apart­ ment in an unfashionable neighborhood in Washington. H e 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 2 0 0 3 by universities and bar associations for twenty-one trips, several o f 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 o f takeovers, the value of his shares had soared. B y 2 0 0 3 , he reported cash and stock assets o f between $ 5 . 2 million and $ 2 5 . 5 million, nearly tying with Ginsburg for the highest on the Court. B u t Souter was also acutely aware that federal judges were en­ titled to retire with full salary after fifteen years on the bench, a ben­ efit that would become available to him in 2 0 0 5 , when he would be sixty-six. A resignation before that point would forfeit his full pen­ sion, so he told friends he thought it would be unwise to forgo that bounty. It was characteristic o f 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 ec­ centricities.

In fact, Souter's gentle charm made him probably the best liked o f

244 Jeffrey Toobin

the justices among his peers, and he returned their affection, which was one reason he stayed on. H e was a special favorite o f 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 o f classical music. She also often noted proudly that she and Souter, unlike the rest o f 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 J o a n Biskupic, O'Connor boasted about her matchmaking skills, claiming she had once been known as the "Yenta o f Paradise Valley," her posh neigh­ borhood in Phoenix. She invited Souter to many o f her parties, in­ cluding 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 in­ cident that took place on April 3 0 , 2 0 0 4 . Souter was taking his nightly jog from his home near the Court to Fort McNair, an old mil­ itary base on the Potomac, and on his way home, he was assaulted by two men. (The reason for the attack was never determined.) He re­ ceived 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. I f 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 o f retirement.

A clue to the source o f Souter's revival on the Court came shortly after the death o f Gerald Gunther, the Stanford law professor and bi­ ographer o f J u d g e 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 un-

T H E N I N E 245

likely that she laughed when Sullivan called.) B u t Souter said yes and made what was, in his seventh decade, the second visit o f 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 1 9 2 4 to 1 9 6 1 on the federal court o f appeals in New York, where his views resembled those o f the moderate, careful j u ­ risprudence o f his friend J o h n Marshall Harlan I I , who was Souter's other judicial hero. Souter spoke o f "every judge's common obliga­ tions: suspicion o f easy cases, skepticism about clear-edged categories, modesty in the face o f precedent, candor in playing one worthy prin­ ciple against another, and the nerve to do it in concrete circumstances on an open page." T h i s was autobiography for David Souter, the cau­ tious guardian o f the right to privacy, the fierce advocate o f strong na­ tional government (and unrelenting foe o f 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 2 0 0 0 . Souter, who re­ coiled from extremism or "clear-edged categories" o f any kind, had a visceral horror o f such conservative undertakings as the Constitution in Exile. W h i l e centrism was a political philosophy for O'Connor, it was more a matter o f temperament for Souter; still, it turned out the two justices were merely taking different paths to a similar jurispru­ dential destination.

T h e case that summed up Souter's achievement as a justice was one that was argued and decided during Rehnquist's illness. T h e issue in MGM v. Grokster concerned one o f the most vexed issues in copyright law—whether the maker o f software that can be used for copyright infringement should be held liable i f its product is in fact used that way. Billions o f 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 con­ demn 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 o f those diffi­ cult questions and make the law even more complicated than it al­ ready was. B u t Souter managed to unite the Court behind his opinion, which held that software makers could be liable only i f they took af­ firmative steps to encourage infringement. I t was a largely apolitical

246 Jeffrey Toobin

decision that managed to draw support from left and right, creators

o f entertainment and distributors o f 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 o f the

markets for both technology and entertainment—from a man who

only in 2 0 0 3 , while presiding over a wedding, learned the name of a

singing group that was more than familiar to his colleagues, the

Suprêmes.

S t i l l , for all his popularity on the Court, Souter remained a mystery

even to those who knew him best. Part o f his appeal was that, pecu-

liar though he was, Souter was comfortable with himself, even capa-

ble o f 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. N o one could

really understand why this happened, because the two bore little re-

semblance. O n e day when Souter was making his usual solo drive

from Washington to New Hampshire, he stopped for lunch in Mas-

sachusetts. A stranger and his wife came up to him and asked, "Aren't

you on the Supreme Court?"

Souter said he was.

"You're J u s t i c e Breyer, right?" said the man.

Rather than embarrass the fellow, Souter simply nodded and ex-

changed pleasantries, until he was asked an unexpected question.

"Justice Breyer, what's the best thing about being on the Supreme

Court?"

T h e justice thought for a while, then said, "Well, I'd have to say

it's the privilege o f serving with David Souter."

During the spring o f 2 0 0 5 , when the justices looked for clues about

Rehnquist's prognosis, the most important event for the Court in-

volved a case that was never accepted for review. T h e justices did not

write a single opinion in the matter o f Terri Schiavo, but no case that

year had a greater impact on the Court as an institution.

B y the beginning o f 2 0 0 5 , Schiavo's story was a familiar one in

Florida, i f not in the rest o f the country. She became suddenly ill on

February 2 5 , 1 9 9 0 , and her heart briefly stopped beating, and she

went into a deep coma. In 1 9 9 8 , her husband and guardian, Michael

Schiavo, went to the state court in Florida, asking that her feeding

T H E N I N E 241

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 con­ dition was not so dire and that she m i g h t someday recover. Years o f bitter court fights followed.

T h e struggle over Terri Schiavo was at once a terrible family quar­ rel and a proxy battle over abortion and the "right to life." It was also, curiously, a recapitulation o f 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 J e b Bush, took the parents' side. In 2 0 0 3 , 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 2 5 , 2 0 0 5 , that he would permit no more stays and ordered the tube removed on March 1 8 . In front o f the hos­ pice in Pinellas Park where Schiavo was being treated, a series o f protests and prayer vigils began under the leadership o f Rev. Patrick Mahoney, who was affiliated with a group called the Christian Defense Coalition. (Mahoney was a veteran o f the antiabortion move­ ment and many conservative causes; in 1 9 9 4 , he had persuaded Paula Jones to file her sexual harassment lawsuit against B i l l Clinton.)

Schiavo's feeding tube was removed on the afternoon o f March 1 8 . W i t h 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 o f Representatives. An ardent opponent o f abortion rights and a fierce partisan known as the Hammer, DeLay engineered an extraordinary legislative feat with re­ markable speed. Congress had gone into recess, but DeLay managed to gather a quorum o f 2 1 8 representatives on Sunday, March 2 0 , to pass a bill designed to prevent the removal o f 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 2 1 . Later that day, Bush said, "It is wise to always err on the side o f life."

B y its specific terms, the law—known formally as For the R e l i e f o f

248 Jeffrey Toobin

the Parents o f Theresa Marie Schiavo Act—instructed the federal dis­ trict court in Florida to give the case yet another hearing "relating to the withholding or withdrawal o f food, fluids, or medical treatment necessary to sustain her life." T h e law further stated that the district court "shall entertain and determine the suit without delay." So on the very day the law was signed, J u d g e J a m e s D . W h i t t e m o r e held a hear­ ing in Tampa on the case, and the next day he rejected the Schindlers' attempt to reinsert the feeding tube. T h e parents appealed to the Eleventh Circuit and then to the U . S . Supreme Court, which on March 2 4 refused to intervene. B y this time, the case had been con­ sidered by nineteen judges in six state and federal courts, and between 2 0 0 1 and 2 0 0 5 the U . S . Supreme Court had declined to hear the case five times. Terri Schiavo died on March 3 1 .

Her death only increased the rhetorical fervor. On the day o f 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. " W e will look at an arrogant, out-of-control judiciary that thumbs its nose at Congress and the president."

Four days later, Senator J o h n Cornyn, a Republican from Texas, made an even more incendiary statement. J u s t weeks earlier, there had been a pair o f horrific attacks on judges and their families. In Chicago, a deranged litigant before federal judge J o a n Lefkow broke into her home and murdered her husband and mother, and in Atlanta, a defen­ dant in a rape case killed the judge in his trial and two others in the course o f an escape attempt. In a speech on the Senate floor, Cornyn suggested the attacks on judges m i g h t have taken place because o f de­ cisions like Schiavo. "I don't know i f there is a cause-and-effect con­ nection but we have seen some recent episodes o f courthouse violence in this country," Cornyn said. "I wonder whether there may be some connection between the perception in some quarters on some occa­ sions where judges are making political decisions yet are unaccount­ able to the public, that it builds up and builds up and builds up to the point where some people engage in violence."

T h e justices watched these developments—the litigation, the fren­ zied rush to pass a law for Schiavo's purported benefit, the venomous attacks on the judges—with consternation. T h e 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 o f the messages,

T H E N I N E 249

which was posted in a W e b 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. . . . I f you are what you say you are, and N O T armchair patriots, then those two justices will not live another week." Ginsburg, with her mordant view o f 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. T h e hiring o f J o h n Ashcroft, the politi­ cized response to the affirmative action case, the lawless approach to the war on terror, and the accelerating disaster o f 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. T h i s judgment was es­ pecially painful for her because her only close friend serving in the ad­ ministration was Donald Rumsfeld, the architect o f the war.) B u t in O'Connor's list o f 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 o f 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 7 0 percent o f the public disapproved o f Bush's and Congress's handling o f 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 was one for in­ dividuals and families, not the government.

This view appealed to O'Connor's libertarian streak, but the core o f 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 fam­ ily what to do was telling judges what to do.

T h e subject had long been a theme o f her foreign travels. She saw Ukrainian lawyers trained by her C E E L I initiative lead the Orange Revolution o f 2 0 0 4 , where that nation's Supreme Court voided a cor­ rupt national election. She mourned the loss o f judicial independence in Zimbabwe, where the regime o f Robert Mugabe sent thugs into its Supreme Court, ignored the court's rulings, and forced some justices

250 Jeffrey Toobin

off the bench. She frequently mentioned that in Russia presidential guards had killed the c h i e f judge's pet cat. In a little-noticed speech in 2 0 0 3 , at the Arab J u d i c i a l Forum in Bahrain, O'Connor had im­ plored nascent democracies to embrace the cause o f judicial indepen­ dence. "It is the kernel o f the rule o f 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 o f other branches o f government. Presidents, ministers, and legislators at times rush to find convenient solutions to the exigencies o f the day. An independent judiciary is uniquely posi­ tioned to reflect on the impact o f those solutions on rights and liberty, and must act to ensure that those values are not subverted."

W i t h 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 o f powers in the war on terror, ignoring the rule o f law in Guantanamo, and undermining judges in Florida—and O'Connor wasn't going to watch in silence as it happened. Later in 2 0 0 5 , she took her indigna­ tion on the road, giving fiery speeches on the subject o f judicial inde­ pendence.

O'Connor's foes weren't backing down either. O n April 7, Tom DeLay told a conservative conference in Washington entitled "Confronting the J u d i c i a l W a r on Faith" that "judicial independence does not equal judicial supremacy." Speakers at that conference advo­ cated "mass impeachment," stripping the courts o f jurisdiction to hear certain cases, and using Congress's budgetary authority to pun­ ish offending judges. O'Connor fired right back at him, noting in a speech to an appellate lawyers' association that "this was after the Terri Schiavo case, when the federal courts applied Congress's one­ time-only statute as it was written, but, alas, perhaps not how the congressman wished it was written," O'Connor said.

"It gets worse," O'Connor went on. "In all the federal courts, death threats have become increasingly common." Taking aim at Senator Cornyn, she said, "It doesn't help when a high-profile senator, after not­ ing that decisions he sees as activist cause him 'great distress,' suggests there may be 'a cause-and-effect connection' between such activism and the 'recent episodes o f courthouse violence in this country.' "

T h e threats were not an abstract issue for O'Connor. In this very month, April 2 0 0 5 , just weeks after the malicious comments in the chat room, each o f the justices was sent homemade cookies contain-

T H E N I N E 251

ing lethal doses o f rat poison. T h e packages were intercepted before they reached the justices' chambers; the woman who sent them, Barbara J o a n March, o f Bridgeport, Connecticut, also sent poison to several executive branch officials. (The next year, March was sentenced to fifteen years in prison.) A t the time o f the Cornyn and DeLay re­ marks, the episode left O'Connor feeling that the judiciary was under siege.

In her final year on the Court, O'Connor advocated vigorously for the system that made possible all that she had done. Only an indepen­ dent Supreme Court kept the government tethered to the core values o f the Constitution. To O'Connor, the fight for judicial independence had never been more important, because she and her cause now had powerful adversaries—the political party she had once loved and the president she had once installed in office.

For all the challenges she faced, it was still a great time in O'Connor's life. She was a healthy seventy-five-year-old woman working in a job that she adored, one that had given her the chance to be the most im­ portant woman in American history. She reviled the current adminis­ tration, but she had the world's best platform to speak out against its abuses. She was more influential than ever, the critical vote on issue after issue, and she reveled in that responsibility. In Breyer, O'Connor had found a true friend and ally—her first since Powell left the bench many years earlier.

B u t as the months passed in 2 0 0 5 , O'Connor did not have the chance to savor her good fortune. After a period o f some stability, her husband's health was again declining. J o h n did not take well to her move to the second-floor chambers. Worse, he began to exhibit one o f the most heartbreaking symptoms o f Alzheimer's disease, a penchant to wander. I f he was not watched at all times, J o h n simply left her chambers. Several times Court personnel tracked him down just be­ fore he got outside, where he could have been lost, injured, or worse. Even with all the resources available to a Supreme Court justice, the situation was becoming unmanageable.

John's comments on election night in 2 0 0 0 about J u s t i c e O'Connor's wish to resign had leaked to the press soon after the deci­ sion in Bush v. Gore, so speculation about her retirement had been in­ cessant. O'Connor enjoyed public attention and sought publicity, but

252 Jeffrey Toobin

only on her own terms. Aware that reporters would ask her friends and colleagues i f they knew about her plans, she never discussed the subject with them. O'Connor said little even to her three sons about what she should do. B u t by the end o f the Court's term in J u n e 2 0 0 5 , there really wasn't much to debate. She had not outsourced her boys' upbringing, she said, and she was not going to outsource John's care either.

A few days before the end o f the term, O'Connor asked to see Rehnquist in his chambers. More than on any other subject, the jus­ tices respected each other's privacy on the question o f retirement, but the issue couldn't wait anymore. So, more than fifty years after they met at Stanford, the two old friends sat opposite each other and talked about their future.

" B i l l , I think J o h n needs me. I think I need to go, but I don't want to leave the Court with two vacancies," she said.

T h e c h i e f said he couldn't know how his disease would progress, but he was stable at the moment and his doctors had hope. H e had re­ turned to the bench on March 2 1 , 2 0 0 5 , after five months away, and he had presided for the last weeks o f the term with his tracheotomy tube still in place. "I think I can make it another year," Rehnquist said. "I'm not going to resign." O'Connor was willing to stay one more year and in some ways wanted to remain on the Court. B u t the chief's desire to hang on for another term meant that it would be two years until she could retire, and she didn't think J o h n could wait that long for her. Rehnquist had forced her hand and thus delivered O'Connor's seat—the crucial one on the Court—to George W. Bush.

T h e final day o f the term was Monday, J u n e 2 7 , and the courtroom was packed in anticipation o f news o f a possible retirement— Rehnquist's. B u t the c h i e f merely closed the Court's term with best wishes for a good summer, and the thought o f a Supreme Court va­ cancy seemed to pass from the Washington agenda for another year.

Three days later, however, around lunchtime on Thursday, Pamela Talkin, the marshal o f the Court, called Harriet E . Miers, the W h i t e House counsel, to arrange for hand delivery o f a letter the following morning. (Miers had recently been promoted from deputy chief o f staff to succeed Alberto Gonzales as W h i t e House counsel.) Talkin did not say which justice would be sending it. T h e next morning, Friday, J u l y 1, just before nine, Talkin called Miers and said the letter, which was from O'Connor, was on its way.

T h e news o f O'Connor's resignation hit official Washington like

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thunder. T h e expected replacement o f Rehnquist would have been momentous—there had, after all, been forty-three presidents but only sixteen chief justices. B u t a Bush appointee in that seat would not change the balance o f power on the Court in any dramatic way. T h e loss o f O'Connor, in contrast, would. T h e conservative counterrevolu­ tion, thwarted for so long, often by O'Connor herself, m i g h t finally have a chance to succeed.

Few people paid attention to the text o f the letter that had been de­ livered to the president, but O'Connor had crafted the message with care:

Dear President Bush, This is to inform you o f my decision to retire, . . . effective

upon the nomination and confirmation o f my successor. It has been a great privilege, indeed, to have served as a member o f the court for 2 4 Terms. I will leave it with enormous respect for the integrity o f the court and its role under our constitutional structure.

Sincerely, Sandra Day O'Connor

It was, in O'Connor's polite way, a direct shot at Bush and a plea for the cause that obsessed her in her final days on the bench. She was de­ termined to protect the Court's "role under our constitutional struc­ ture" precisely against the incursions that she thought Bush and his allies were attempting to make.

B u t few people noticed. O'Connor discovered quickly that retire­ ment brought fulsome tributes but also immediate irrelevance. One moment she was the swing vote on the Supreme Court and the next, it seemed, she was a display piece in a museum. She had lost her j o b , and the political party that was her home had lost her. Worst o f all, she was losing her husband. In those first days after her announce­ ment, she didn't answer the phone too often. She sat in her office and cried.

PART

F O U R

20

"'G' IS F O R GOD"

The planning for this m o m e n t — t h e opportunity for George W. Bush to nominate a justice to the Supreme Court—had begun shortly after Election Day in 2 0 0 0 . A t the time, with Florida still undecided, it was not even clear that Bush would become president, but his team wanted to be ready with a nominee as soon as there was a vacancy. T h e transformation o f the Court would be a cen­ tral priority o f the new administration, i f Bush had the chance.

W h e n he began his campaign for president, Bush did not devote a great deal o f attention to the subject o f the Court. As governor o f Texas, he appointed judges with backgrounds much like his own; they were conservatives, but mostly in the corporate rather than the social and evangelical wing o f the Republican Party. During the 2 0 0 0 campaign, Bush sent signals that he would operate much the same way in the W h i t e House. In a debate with Al Gore, he was asked whether voters should assume all his judicial appointments would be prolife. "Voters should assume that I have no litmus test on that issue or any other issue," Bush replied blandly. "The voters will know I'll put competent judges on the bench."

B u t five years later, when Bush finally had the chance to make an appointment to the Court, he had a very different agenda for his nom­ inees. Inside the W h i t e House, "moderation" had gone from a goal to an epithet. T h e messianic nature o f his presidency—Bush's concep­ tion o f his time in office as a moment o f dramatic change for the world—affected his judicial nominations as much as it did his deci­ sions on the Middle East. Through a combination o f the staff he se­ lected, the political strategy underlying his reelection, and his own personal evolution, Bush now sought transformative appointees, jus-

258 Jeffrey Toobin

Only a few days after the 2 0 0 0 election was resolved, Bush announced that he would be taking Alberto Gonzales, formerly his chief counsel in Austin, with him to Washington as W h i t e House counsel. Gonzales, whom Bush had recently placed on the Texas Supreme Court, chose just one o f his local deputies, Stuart Bowen, to go with him. For the remainder o f the W h i t e House legal staff—the people who would select and vet the candidates for the Supreme Court and other judgeships—the two Texans tapped into the conservative net­ work that had been created two decades earlier for just this opportu­ nity. Conservatives may have represented a lonely minority on law school campuses in the 1 9 8 0 s , but by the new century they consti­ tuted a powerful force in Washington. Nothing mattered more to them than taking control o f the federal judiciary, especially the Supreme Court.

T h e young lawyers on the W h i t e House staff had a great deal in common. Virtually all o f them were members o f the Federalist Society. Many had worked on the various Republican investigations o f the Clinton administration during the previous eight years. (Brett M . Kavanaugh was the principal author o f the Starr report, Christopher Bartolomucci was an investigator in Senator Alfonse D'Amato's inves­ tigation o f Whitewater, and Bradford Berenson became a familiar me­ dia commentator on the investigations.) Several others, like Bowen himself and T i m o t h y Flanigan, who ultimately became Gonzales's deputy, joined up after working for Bush on the recount litigation in Florida. Most had clerked for conservative justices on the Court. (Kennedy clerks like Kavanaugh and Berenson predominated, be­ cause the justice tended to hire law clerks who were more conserva­ tive than he was.)

Before the inauguration, the early arrivals on the staff—like Kavanaugh, Berenson, and Helgi Walker, a former Thomas clerk— established themselves in office space reserved for the transition in a downtown Washington building. Among their first assignments was to write what were called "candidate memos"—that is, profiles o f prospective appointees to the Court. Nearly fifty, Flanigan was the oldest o f the lawyers on the staff and the only one who had served in

tices who would move the Court sharply and immediately to the right.

T H E N I N E 259

the first Bush administration, as a high-ranking J u s t i c e Department official. H e had a basic familiarity with the well-known Republican appointees to the courts o f appeals, so he farmed out the writing o f about a dozen o f the profiles to the junior lawyers. W i t h o u t contact­ ing the candidates and working only from material in the public do­ main, they set out to analyze the judges' suitability for the Court and their chances for confirmation. Some o f the memos ran to almost a hundred pages. Their subjects became known as the "short list."

After Bush took office in January 2 0 0 1 , the counsel's operation moved to the Old Executive Office Building, next door to the W h i t e House. T h e lawyers soon turned their attention to the end o f the Court's term in J u n e , a traditional time for justices to announce their retirement; an annual office pool on resignations was set up, with the winner awarded dinner at the AV Ristorante, a run-down Italian restaurant that served as an unofficial clubhouse for conservative lawyers in Washington. (The place was a favorite o f Scalia's until it closed in 2 0 0 7 . ) Each year, throughout Bush's first term, the betting focused on Rehnquist and O'Connor, but the killjoys who chose no resignations always wound up with the free pizza.

As the years passed without an opening on the Court, the lawyers ro­ tated to other jobs, but one thing rarely changed—the short list. W h a t was especially striking about the list was that it was compiled with little involvement from Gonzales—and none at all from Bush. T h e president had essentially delegated the matter o f Supreme Court appointments to Gonzales, and he turned it over to his young aides. Bush, o f course, would make any final decision, but the all-important culling was done almost entirely by some o f the most conservative lawyers in the capital. T h e i r priorities were straightforward—move­ ment conservatives only; no "squishes."

Gonzales and Flanigan provided minimal guidance. Bush wanted someone with judicial experience and a proven ideological track record. As was often the case in the Bush W h i t e House, the president was eager to avoid what he regarded as the mistakes o f his predeces­ sors. Bush didn't want any Clinton-style agonizing or a long public search featuring abundant news leaks. W h e n a vacancy came, the de­ cision should be quick. N o r did Bush want a process like the one that led his father to nominate David Souter—where outsiders like

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Warren Rudman, then a New Hampshire senator, intervened at the last minute to push his protégé into the mix. T h a t disorderly rush produced a nominee whose views turned out to be a surprise, at least to conservatives. George W. Bush didn't want any surprises.

In public, the president invariably relied on the same catchphrases when describing his favored judicial philosophy. "I believe in strict constructionists—judges who strictly interpret the Constitution and will not use the bench to write social policy," he said. Or, as he put it on other occasions, he favored judges who would "interpret the law, not legislate from the bench." O f course, all judges, even the most lib­ eral, believe they are interpreting the law, so Bush's summary really amounted to a coded reference to the outlines o f a judicial philosophy. W h e n Bush said judges were "legislating from the bench," he meant overturning laws on individual-rights grounds, most notably restric­ tions on abortion rights. Bush was also talking about judges who pro­ hibited public displays o f religious observance. T h e president—and especially Vice President Cheney—also felt strongly that judges should not interfere with what they felt were the prerogatives o f the executive branch in the conduct o f foreign policy or military affairs.

As for a more detailed philosophy, like whether Bush supported the Constitution in Exile—and a return to a 1 9 3 0 s conception o f the role o f the federal government—no one really knew. During the 2 0 0 0 campaign, Bush said in passing that he would look for judges in the mold o f Scalia and Thomas, but he never repeated that promise, be­ cause downplaying it served his political purposes. T h e vow pleased his conservative base, but most voters ignored it. Still, the Scalia and Thomas remark ended up being the most important guidance the W h i t e House lawyers received. Unlike their boss, the young conser­ vatives on Bush's staff had thought through precisely what stamp they wanted to place on the federal judiciary—and a network o f Scalia and Thomas acolytes was precisely what they had in mind.

T h e closest Bush came to spelling out what he wanted came every six weeks or so, when he met his judicial selection team, which usu­ ally included the vice president, Gonzales, and about a half dozen J u s t i c e Department and W h i t e House officials. Bush had a business­ man's contempt for lawyers generally, and he viewed the process o f choosing judges with impatience. Like most other presidents in re­ cent years, Bush deferred to senators o f his party on the selection o f trial court judgeships, and he always wanted to know what home- state Republicans thought o f appeals court candidates as well. All he

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needed to know was that a judicial candidate was a "good conserva­ tive." H e rarely asked questions about candidates' judicial philosophy and never gave any sign that he had read their judicial opinions.

B u t Bush did have another priority for his judges—diversity. Early in his presidency, when the political divisions in the country were not as toxic as they would become, Bush pressed for women and minori­ ties on the bench. Given the ideological inclinations o f the lawyers on his staff, it wasn't the easiest assignment, but they did initially find a diverse group o f judges to send to the Senate. In fact, the nomination o f Bush's first group o f judges would be a little-noticed turning point in Bush's administration.

Gathered in the East R o o m on May 9 , 2 0 0 1 , the eleven nominees "looked like America," as the Clinton-era phrase had it. There were two African Americans, including Roger Gregory, whom Clinton himself made a recess appointment to the Fourth Circuit after Senator Jesse Helms blocked a full-fledged appointment, and Barrington Parker J r . , a Clinton appointee to the district court whom Bush was promoting to the Second Circuit. There were also three women— Edith Brown Clement, Deborah Cook, and Priscilla Owen—and a Hispanic, Miguel Estrada, a brilliant Honduran immigrant who was tapped for the D . C . Circuit. "A president has few greater responsibil­ ities than that o f nominating men and women to the courts o f the United States," Bush said. "He owes it to the Constitution and to the country to choose with care. I have done so."

Two weeks later, however, Senator J a m e s Jeffords, a Vermont Republican, created a political upheaval by shifting his alliance to the Democratic Party, thus transferring control o f the evenly divided body away from the GOP. Suddenly, less than a year into Bush's pres­ idency, the Democrats were running the agenda in the Senate. As far as Bush's judicial nominations were concerned, the change meant that Patrick Leahy, a committed liberal, also from Vermont, would take over from Orrin Hatch, the Utah conservative, as chairman o f the Judiciary Committee. Under Hatch, all eleven o f Bush's nominees could have been assured prompt hearings and all but certain confir­ mation. B u t Leahy decided to slow down the process, especially for some o f the more controversial nominees, including Owen and Estrada.

A justice o f the Texas Supreme Court, Owen had staked out a po­ sition on the far right that had sometimes put her in conflict with Alberto Gonzales himself. Estrada had glittering credentials—

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Harvard Law School, followed by an acclaimed career as a federal pros­ ecutor, an assistant to the solicitor general, and a top corporate lawyer—but he also had a prickly personality and a reluctance to share many o f his views about constitutional law with the committee. Because Estrada was tapped for the august D . C . Circuit, where he would be a likely choice as first Hispanic on the Supreme Court, Democrats let his nomination linger in limbo.

In short, after the Democratic takeover o f the Senate, the atmo­ sphere around Bush's judicial nominations soured. Republicans, espe­ cially those in the W h i t e House, thought their gestures o f goodwill, like the nominations o f Gregory and Parker, had counted for nothing. Democrats thought Bush, with just a few exceptions, was choosing conservative extremists. Positions hardened on both sides. Owen's nomination was stalled for years. After a similar delay, Estrada with­ drew his name in frustration. T h e others on Bush's original list o f eleven nominees eventually did win confirmation, including the pres­ ident's choice to fill another vacancy on the D.C. Circuit, J o h n G. Roberts J r .

J o h n Roberts was not genetically engineered to be a justice o f the Supreme Court, but it often seemed that way. His career trajectory was so smooth, his progress so steady, his reputation so exalted, his personality so winning, that he seemed at times preternaturally fa­ vored for that ultimate destination.

Roberts was born in Buffalo on January 2 7 , 1 9 5 5 , and raised in Indiana, where his father was an executive in the steel industry. Young J o h n was captain o f his high school football team and the best student in his high school class. In 1 9 7 6 , he graduated from Harvard College summa cum laude; three years later, he received his degree magna cum laude from Harvard Law School, where he was managing editor o f the Law Review. His colleagues on the Review included J u s t i c e Ginsburg's daughter, J a n e . B o t h the college and the law school still bore the scars o f the politically tumultuous 1 9 6 0 s , but Roberts man­ aged to excel without making enemies, a skill that would serve him well. His first judicial clerkship was with Henry J . Friendly, a leg­ endary judge on the Second Circuit whose chambers in New York were a frequent destination for especially cerebral graduates of Harvard Law. Friendly came out o f the moderate Republican tradition

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that included such judges as Learned Hand and J o h n Marshall Harlan I I , who were Souter's great inspirations on the bench.

Roberts decided his future was in Washington, not New York, and he moved to the capital just in time to join in the Reagan revolution. He arrived in W i l l i a m Rehnquist's chambers as a law clerk in the summer o f 1 9 8 0 , when the young associate justice was a relative out­ sider on a Supreme Court that was still dominated by the liberal William Brennan. B u t conservatives were ascending, and Roberts thrived. After his clerkship, he spent four years in the office o f Reagan's W h i t e House counsel, where he earned a reputation for bril­ liance and good humor. His plainspoken memos, preserved in the Reagan Presidential Library, display wit, common sense, and conser­ vative politics in equal measure. For example, regarding a proposal by Chief J u s t i c e Warren Burger to lighten the workload o f the Supreme Court by the creation o f a new intermediate appeals court above the existing circuit courts, Roberts made this tart observation: " W h i l e some o f the tales o f woe emanating from the Court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off."

W i t h perfect timing, Roberts left the Reagan W h i t e House shortly before the administration nearly imploded in the Iran-Contra scandal, and he established himself as a successful appellate litigator at the dis­ tinguished Washington firm o f Hogan & Hartson. W i t h the election of the first President Bush in 1 9 8 8 , Roberts returned to government, this time as the principal deputy to Solicitor General Kenneth Starr. Roberts's easy manner, combined with his vast intellect, made him a favorite o f the justices, and he ultimately came to argue thirty-nine cases, far more than any other nominee in the Court's recent history. Such was Roberts's reputation that in 1 9 9 2 , at only thirty-seven, in what would be the last year o f the 4 1 s t presidency, he was nominated to the D.C. Circuit.

Then, for the first time in his life, Roberts came up against some­ thing he couldn't overcome. T h e Democrats who controlled the Senate sensed victory in November and essentially shut down the con­ firmation process. Even then, Roberts looked like Supreme Court ma­ terial, so the Democrats were especially pleased to block his promising judicial career. W i t h Bush's defeat in 1 9 9 2 , Roberts re­ turned to Hogan & Hartson and, in all likelihood, a career o f gilded obscurity in corporate law.

Roberts's failure to win confirmation to the D . C . Circuit in 1 9 9 2

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turned out to be a lucky break. For the next eight years, he developed perhaps the best Supreme Court practice in the United States, mostly representing large corporations in business disputes with one another or with the government. Almost every year, Roberts had several argu­ ments before the justices, and he also filed a steady stream o f cert petitions and amicus briefs. (Not incidentally, he also made approxi­ mately a million dollars a year.) Roberts generally steered clear o f the political controversies o f the Clinton years, declining to participate in any investigations o f the W h i t e House and refusing even to become a prominent talking head about impeachment. His contribution to Bush's legal strategy in the Florida recount was important but low profile. A natural reticence and skill at avoiding enemies kept him largely out o f public view. S t i l l , among his former colleagues in Republican politics and law, Roberts retained a golden aura, even without having established a public record o f partisanship. Miguel Estrada used to advise young lawyers coming out o f the solicitor gen­ eral's office, "Go work for J o h n G . Roberts. T h e ' G ' is for God."

I f Roberts had been confirmed in 1 9 9 2 , o f course, he would have amassed an extensive paper trail o f controversial decisions on the D.C. Circuit by the time George W . Bush took office in 2 0 0 1 . Instead, Roberts had only enhanced his reputation by excelling as an advo­ cate. Again, once Democrats established control o f the Judiciary Committee in the middle o f the year, they tried to stall Roberts's sec­ ond nomination as they did his first nine years earlier. B u t the Republicans retook control o f the Senate in 2 0 0 2 , and Hatch promptly moved Roberts through the process early the following year. O n May 8, 2 0 0 3 , he was confirmed by the full Senate on a voice vote, without opposition. Before Roberts had even taken his seat as a federal appeals court judge, his friends in the W h i t e House counsel's office started compiling the dossier that put him on the short list for the Supreme Court.

In 2 0 0 0 , Bush had campaigned as a "compassionate conservative" and "a uni ter, not a divider," pledging to surmount the partisanship that had consumed Washington during the Clinton years. B u t in the 2 0 0 4 race, Bush shifted to more ideological priorities, hoping to motivate a conservative base, mostly evangelical Christians, that had felt slighted during the earlier contest. T h e issues that mattered most to

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them were all on the Supreme Court's agenda, and so the Court played a more central role in Bush's second campaign.

Indeed, the president's courtship o f evangelicals led to a curious moment in the campaign. During Bush's second debate with J o h n Kerry, the president answered a question about possible Supreme Court appointments by attacking the Dred Scott decision, which he characterized as "where judges years ago said that the Constitution al­ lowed slavery because o f personal property rights. That's a personal opinion; that's not what the Constitution says." Decided in 1 8 5 7 , the Dred Scott case has been obsolete for decades because it was overruled by the passage o f the Thirteenth and Fourteenth Amendments after the Civil War. Though many observers in the mainstream media were puzzled by Bush's invocation o f the ancient and irrelevant precedent, it served an important purpose. W i t h i n the antiabortion movement, Roe v. Wade is often described as the Dred Scott o f modern times—a monstrous case that deserves reversal. In coded language, Bush used the debate to signal his agreement with that view.

So the conservative base came into 2 0 0 5 expecting payback, in the form o f thoroughly acceptable judicial appointments. J u s t after the election, those activists first made their presence felt by punishing Arlen Specter for his comments about Roe v. Wade. In the months that followed, they pushed the Senate to confirm many o f Bush's long- stalled judicial nominees. (Priscilla Owen, the Texas justice, had still not received a vote four years after she was named in Bush's initial group o f eleven nominees.) During Bush's first term, Democrats had used Senate rules to force Republicans to muster sixty votes, rather than just a majority, on Bush's more controversial judicial nominees. These Democratic tactics amounted to filibusters against the would- be judges, and conservative activists like J a y Sekulow began pressing the Senate to ban the use o f filibusters to stop judicial nominations.

In the spring o f 2 0 0 5 , the Senate nearly imploded over the issue o f judicial confirmations. T h e filibuster rule amounted to the principal difference between the rules o f the House o f Representatives and the Senate; in the House, a simple majority could essentially force through any legislation it supported, while the Senate required a three-fifths majority, or sixty votes. W i t h only fifty-five Republicans in the Senate, the filibuster rule meant that the minority Democrats could delay or even stop any law or nomination, i f they could stay united. T h e filibuster rule was designed to push senators toward compromises and bipartisanship. Conservatives, including many

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Republican senators, began arguing for a change in the Senate rules, so that a simple majority could bring nominations to a vote. T h e pro­ posed change in the venerable Senate procedures was so great that the proposal was nicknamed the Nuclear Option. For his part, Bush im­ plicitly endorsed the change in his State o f the Union address, insist­ ing, to huge applause in the chamber, "Every judicial nominee deserves an up or down vote."

At the last minute, though, with the Senate at the nuclear brink, a compromise put off the conflagration, at least for the time being. A bipartisan group o f fourteen moderate Senators, meeting in Senator J o h n M c C a i n s office on May 2 3 , 2 0 0 5 , brokered a deal where some of Bush's long-delayed nominees (like Owen) would finally get their up or down votes and thus be confirmed. In return, the Republicans in the group agreed not to change the Senate's rules—yet. Under the deal, the so-called Gang o f 14 announced jointly that "nominees should only be filibustered under extraordinary circumstances," a term that was carefully left undefined.

T h e ultimate battle had been postponed, but the political message was unmistakable—that the confirmation o f very conservative judges was a central concern o f the Republican Party. T h e compromise essen­ tially left the moderates o f both parties in charge o f determining whether a filibuster could ever be mounted; since these senators gen­ erally disdained filibusters, and even the Democrats among them cared less about thwarting Bush's judicial agenda, the compromise amounted to a victory for the conservatives.

Five weeks later, O'Connor announced her retirement. B y that point, it was clear that Arlen Specter and other old-timers were read­ ing an obsolete script for modern confirmation battles. In 1 9 8 7 , Robert B o r k was defeated because he was too conservative for a Democratic Senate, and Specter still believed that the current Senate m i g h t vote down a nominee who was too conservative. In truth, the bigger risk for a George W . Bush nominee was i f he or she was not conservative enough. To put it another way, Bork couldn't be con­ firmed because he opposed Roe v. Wade; in 2 0 0 5 , a nominee couldn't be selected unless he or she opposed Roe v. Wade.

O'Connor submitted her resignation on Friday, J u l y 1, just before the Fourth o f J u l y holiday weekend. B y the beginning o f the next work-

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week, the conservative base started making demands about her re­ placement. T h e first: anyone except Alberto Gonzales.

From the moment Gonzales had come to Washington from Austin, it had been more or less assumed that Bush would appoint him to the Supreme Court. His story could hardly be more inspiring. T h e second of eight children o f a construction worker and a homemaker, the grandson o f Mexican immigrants, Gonzales was raised in a Texas town whose name matched his family's circumstances—Humble. H e en­ listed in the air force out o f high school, graduated from R i c e University, and earned a degree from Harvard Law School in 1 9 8 2 . Gonzales became a partner in the prominent Houston law firm o f Vinson & Elkins, where he worked until Governor Bush named him his general counsel in 1 9 9 4 . Three years later, Bush appointed him secretary o f state, and in 1 9 9 9 he named Gonzales a justice o f the Texas Supreme Court. Gonzales served for less than two years, because Bush took him to Washington as his first W h i t e House counsel. After his reelection, the president named Gonzales the nation's eightieth at­ torney general and first Hispanic to hold the job. Gonzales was only fifty years old in 2 0 0 5 , the perfect age to begin a long career as a jus­ tice. He would, o f course, have been the first Hispanic, a major mile­ stone for an ethnic group that Bush had spent much o f his political career courting. In addition, on a personal level, Bush adored Gonzales, who was by 2 0 0 5 one o f his closest friends in the govern­ ment.

The clear political and personal logic for a Gonzales appointment meant that leading conservatives felt they had to move swiftly to fore­ stall his nomination. T h e attacks began early the next week, in the pages o f the Washington Times, a sort o f house organ o f the conserva­ tive movement (owned by the Reverend Sun Myung Moon). Then, Phyllis Schlafly, founder o f Eagle Forum, a conservative activist group, said, "I don't see any paper trail that convinces me he is some­ body who is a strong constitutionalist." Similarly unsupported com­ ments came from Paul Weyrich, chairman o f the Free Congress Foundation, a founding father o f the New R i g h t . T h e National Review published an editorial entitled "No to J u s t i c e Gonzales." Robert Novak, the conservative columnist, wrote o f "deep and broad opposi­ tion [to Gonzales] from the president's own political base."

In fact, the "base" was a couch—in the living room o f the Capitol Hill town house belonging to a former congressional staffer named Manuel Miranda. A year earlier, Miranda had been forced out o f his

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job as a staffer for B i l l Frist, majority leader o f the Senate, when it was revealed that he had been reading the e-mails o f Democratic staffers on the Judiciary Committee. So Miranda set up shop at home, found­ ing what he called, rather grandly, the Third Branch Conference, which mostly amounted to himself, his laptop, and cordless phone. B u t Miranda knew almost everyone in the conservative legal move­ ment, and his blast e-mails and conference calls became a key conduit o f anti-Gonzales information.

J u s t two hours after O ' C o n n o r s retirement became public on the morning o f J u l y 1, Miranda scheduled a conference call with his al­ lies, telling them he was "urging that the nomination not be Alberto Gonzales." After the long weekend, Miranda elaborated on his rea­ sons, saying that Gonzales "is not a movement conservative. He has not written prolifically on many issues. And so, there is no paper trail. And, we don't know what he really thinks on many, many issues. That is something that conservatives on this nomination cannot tolerate. J u s t i c e David H . Souter did not have a paper trail. J u s t i c e Anthony M . Kennedy had a paper trail, but not on the particular issues that conservatives wished to see. So, it's really no more Souters and no more Kennedys. And that does not add up to an appointment for Gonzales." Miranda wasn't much more than a glorified blogger, but his passion and his contacts whipped his views into something like the conservative conventional wisdom. H e helped popularize the dev­ astating quip " 'Gonzales' is Spanish for 'Souter.' "

B y this time, bigger guns than Miranda were taking up the anti- Gonzales cause. A delegation o f conservative lawyers, led by former attorney general Edwin Meese I I I and C. Boyden Gray, W h i t e House counsel to the first President Bush, met with Andrew Card, the pres­ ident's chief o f staff, to warn against a Gonzales appointment. T h e on­ slaught was so immediate and intense that Bush himself, who was on a state visit to Denmark on J u l y 6 , felt compelled to respond. "I don't like it when a friend gets criticized. I'm loyal to my friends. And all of a sudden this fellow, who is a good public servant and a really fine person, is under fire," Bush said. "And so, do I like it? N o , I don't like it at all."

Inside the W h i t e House, the young Federalists in the counsel's of­ fice—conservative firebrands themselves—watched the attacks on

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Gonzales with astonishment. They knew that he had been among the administration's true believers, "a hundred percenter," in the move­ ment argot. Gonzales had taken the most aggressive position among Bush's allies on the legal basis for the war on terror, dismissing the protections o f the Geneva Conventions as "quaint." H e had reversed decades o f precedent by refusing to submit Bush's judicial nominees to the scrutiny o f the American Bar Association, because he thought the A B A was too liberal. H e had joined with Vice President Cheney in asserting a new and expansive view o f executive power and con­ curred fully with the refusal to turn over the documents in the energy task force lawsuit. H e had negotiated the government's position in the Grutter and Gratz affirmative action cases (albeit with a slightly more sympathetic view than D i c k Cheney and Ted Olsen) and had su­ pervised the selection o f the judicial nominees who had so outraged the Democrats that they were moved to filibuster. Gonzales had proved his conservative bona fides many times over. W h a t do these people want? the young lawyers in the W h i t e House asked in bewil­ derment. H e hired us, didn't he? W h a t did Gonzales do to deserve this kind o f treatment?

T h e answer was straightforward. In 2 0 0 0 , during his brief career on the Texas Supreme Court, Gonzales had participated in a series o f cases known as In re Jane Doe. Bush, then governor, had signed a law that required minors to obtain the consent o f their parents i f they wanted an abortion. As required by United States Supreme Court precedent, the law contained an exception that allowed some g i r l s — abuse victims, for example—to proceed with the permission o f a judge rather than a parent. Interpreting this so-called judicial bypass provision, Gonzales joined a 6 - 3 majority on the court in allowing a seventeen-year-old to go to a judge rather than her parents. T h e con­ clusion obviously troubled Gonzales, but he felt compelled to follow the law. " W h i l e the ramifications o f such a law may . . . be personally troubling to me as a parent, it is my obligation as a judge to impar­ tially apply the laws o f this state without imposing my moral view on the decisions o f the Legislature," he wrote.

The conclusions o f the Texas court in the abortion case were nar­ row. None o f the judges, including Gonzales, addressed whether Roe should be affirmed or overturned. T h e opinions didn't interpret the U.S. Constitution at all. T h e only issue was how one specific Texas law applied to one girl. B u t those caveats counted for nothing. Gonzales's career—including four years o f loyal service in George W. Bush's

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W h i t e House—also counted for nothing. Fairly or not, accurately or not, the decisions branded Gonzales as unreliable on abortion, and that was enough for conservatives to veto him as a nominee to the Supreme Court. Such was the power o f movement conservatives—and such was the importance o f abortion to them—that Bush had no choice but to eliminate his good friend from consideration. T h e pres­ ident never wavered in his admiration for Gonzales and never passed up an opportunity to say kind things about him. B u t he also never se­ riously considered him for a seat on the Supreme Court.

21

In the sticky heat o f a summer evening, Theodore Olson surveyed with evident and understandable satisfaction the guests assem­bled in his spacious backyard. For years, Ted and Barbara Olson, the first couple o f the conservative legal world, had dreamed o f a night like this one. A Californian who came east to be an assistant at­ torney general under Reagan, Ted went on to argue Bush v. Gore and, as a reward, to serve four years as Bush's solicitor general. His wife, a former Republican Senate staffer, had been a vitriolic and telegenic critic o f the Clintons and the author o f best-selling books attacking their morals, politics, and marriage. T h e Olsons' wedding in 1 9 9 6 had drawn such conservative luminaries as Clarence Thomas, Robert Bork, and the couple's close friend Kenneth Starr. I f Hillary Clinton's vast right-wing conspiracy had a headquarters, it was their estate in Great Falls, Virginia. Together the Olsons had dreamed o f a true conservative majority on the Supreme Court, and now the moment had come. And the likely next justice was among the guests that night.

W i t h the moment o f triumph so close, there was a note o f poignancy to the evening, because Barbara was not there to share in the celebration. She had been a passenger on the plane that crashed into the Pentagon on September 1 1 , 2 0 0 1 . Her courageous phone calls to her husband in the moments before she died provided impor­ tant clues to what happened on that terrible day. S t i l l , there was lit­ tle doubt that she would have approved Ted's raiding their famous wine cellar for this special occasion.

It was a more polished crowd than one would find at, say, the Colorado Springs headquarters o f Focus on the Family. T h e partygo-

RETIRING THE T R O P H Y

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ers eschewed the rhetoric associated with the likes o f J a y Sekulow or Manuel Miranda. B u t for all the differences in class and temperament in the conservative movement, the agenda for the Supreme Court was remarkably consistent across the board. Reverse Roe. Expand execu­ tive power. Speed executions. Welcome religion into the public sphere. Return the Constitution from its exile since the New Deal. All o f these goals seemed increasingly within reach.

T h e ostensible reason for the party was to salute David Leitch, who was leaving his position as deputy W h i t e House counsel to become general counsel to the Ford Motor Company. T h e gathering was mod­ est—perhaps twenty-five people—and it served as a reminder o f what a small world the Washington conservative legal elite was. Leitch himself had an almost comic number o f connections to the likely nominees. H e had been a law clerk for J . Harvie Wilkinson I I I , had worked for Michael Luttig in the first Bush J u s t i c e Department, had become Roberts's protégé at Hogan & Hartson, and had then served as Gonzales's deputy in the W h i t e House.

T h e candidates assembled that night began with Olson himself. H e had a place on the short list, but no one, including Olson, thought he had much chance. H e had never been a judge, his political activi­ ties had made him a Democratic target, and besides, at sixty-four he was probably too old.

Al Gonzales was there, receiving commiseration for the abuse he was taking from the movement conservatives—some o f whom were also among Olson's guests. Gonzales was technically still a possibility, but the conservative assault had taken its toll. H e , too, looked like a very long shot.

Harvie Wilkinson, the courtly former chief judge o f the Fourth Circuit, remained in the running. H e was telling stories to his fellow guests in the same soft Virginia accent as that o f his mentor, Lewis Powell. T h e O'Connor seat was vacant, but everyone knew Rehnquist probably wouldn't last much longer, so many in the W h i t e House were planning for this first nominee to move up to chief justice. That was good for Wilkinson because he had the patrician charm o f a Southern politician, a valuable skill for the more public duties o f a chief. S t i l l , Wilkinson was already sixty years old and, worse, he had the dreaded taint o f moderation about him.

There were no such worries about Michael Luttig, whom no one ever called a moderate. Although Luttig was invited, he didn't make it to Olson's party, and his nonappearance reflected a problem with his

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candidacy: he was awkward and unsocial. S t i l l , i f anyone was the fa­ vorite for the job at this point, it was Luttig, Wilkinson's colleague on the Fourth Circuit. Luttig was just fifty years old, the perfect age, a former Scalia clerk and a judge since 1 9 9 1 , with a network o f for­ mer law clerks pressing hard for his appointment. Luttig still lived in Vienna, Virginia, a Washington suburb, and he remained well wired in the capital. H e had been a groomsman at Roberts's wedding.

Like Olson, Luttig had suffered a random tragedy. In 1 9 9 4 , his par­ ents were the victims o f a carjacking in their driveway in Tyler, Texas. His father was killed, and his mother survived only by playing dead. During the trial o f his father's killers, Luttig moved his chambers to Tyler and testified for the prosecution in the penalty phase. In 2 0 0 2 , Napoleon Beazley was executed for the murder.

J o h n Roberts was there, too, o f course, hanging back as was his cus­ tom, smiling at other people's jokes, taking in the scene. In the sticky heat, Olson was wearing a Hawaiian shirt and shorts, but Roberts never removed his blazer and tie.

Anticipating that Rehnquist would resign, Bush's advisers had pre­ pared intensively for the end o f the Court's term in J u n e . In May, all o f the leading candidates were invited to Washington for interviews with senior administration officials. Luttig, Roberts, Wilkinson, and two others—Samuel A. Alito J r . , the veteran judge on the Third Circuit, and Edith Brown Clement, a much newer appointee to the Fifth Circuit—were questioned by a panel that included Gonzales, Andrew Card, Karl Rove, the president's political adviser, Cheney, and Lewis Libby, the vice president's chief o f staff.

Clement was a surprise, because she had only joined the appeals court bench in 2 0 0 1 , after a decade as a federal trial judge in New Orleans. T h e presence o f such an obscure figure in the final group— she had not written a single opinion o f note—illustrated a problem with Bush's stated goal o f diversity when it came to Supreme Court appointments. Several Republican women appointed to the federal bench—like Edith J o n e s on the Fifth Circuit, the just-confirmed J a n i c e Rogers Brown on the D . C . Circuit, and Priscilla Owen, also on the Fifth—were incendiary figures, likely to ignite filibusters among Democrats. Others could be dismissed as closet moderates. J o y Clement, as she was known, had charm in abundance and was well re-

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garded for her conservative speeches on the after-dinner circuit. B u t she clearly lacked the stature o f her competitors.

Bush remained largely detached from the process until he returned from Europe in the second week in July. H e had taken the candidate memos with him to study, but he prided himself on his ability to size people up in person. His aides spoke often o f his "intuitive" style o f managing, which relied more on gut reactions than detailed research. (After first meeting President Vladimir Putin o f Russia, Bush said, "I looked the man in the eye. . . . I was able to get a sense o f his soul.") O n J u l y 14 and 1 5 , several o f the candidates were ushered in to see the president through the East W i n g o f the W h i t e House to make sure that they were not seen by the reporters who monitored the west gate. Wilkinson, Clement, Alito, Luttig, and Roberts all spent about an hour with the president. T h e i r conversations, though, were little more than chitchat. Bush asked them all about their families, several about their exercise routines, and Wilkinson about Yale, where the president had been his contemporary. There was little discussion o f judicial philosophy, and none at all o f individual cases. (Recalling his interview with Bush, Luttig later complained to a friend, "It was to­ tally nonsubstantive"—and thus revealed why he didn't get the job.)

S t i l l , this was a time o f big ambitions, even grandiosity, at the W h i t e House. W h e n it came to appointments, Bush's advisers liked to brag, " W e only hit home runs." In the first summer o f his second term, Bush still had a sense that his presidency would bring dramatic changes to the country and the world. R i g h t after his reelection, he had said, "I earned capital in the campaign, political capital, and now I intend to spend it. I t is my style." In his second inaugural address, Bush had announced, "It is the policy o f the United States to seek and support the growth o f democratic movements and institutions in every nation and culture, with the ultimate goal o f ending tyranny in our world." In the domestic sphere, Bush had committed himself to transforming the most venerable and sprawling o f all federal pro­ grams, Social Security. T h e appointment o f a Supreme Court justice, in Bush's view, had to represent a similarly large gesture.

That doomed Wilkinson. Bush's aides condemned the Virginian by calling him "a cautious choice." A t that moment, the Bush presidency was not about caution. T h e president liked Clement a great deal, but he was troubled by her lack o f a substantial judicial record. In addi­ tion, an estranged former law clerk o f Clement's was threatening to go public with purported tales o f racially and religiously insensitive

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comments by the judge; the controversy m i g h t be disruptive, because there was so little else to say about her. Alito struck Bush as solid, but he had few passionate supporters (or detractors) in the W h i t e House or Washington generally. (Alito, who lived outside Newark, was not invited to the Olson soirée.)

In the end, the choice came down to Roberts or Luttig. Roberts had been teaching a summer class in London, and he came back to Washington for his interview with Bush on J u l y 1 5 , then returned overseas. H e was blessed with supporters in the right places. Leitch revered Roberts, as did W i l l i a m Kelley, a professor at Notre Dame Law School who was Harriet Miers's successor as deputy W h i t e House counsel. B r e t t Kavanaugh, who was now Bush's staff secretary, and Christopher Bartolomucci and Bradford Berenson, who had left the W h i t e House, all weighed in heavily on Roberts's behalf. Most im­ portant, Bush immediately took to Roberts in their interview. T h e president had radar for anyone who put on airs, and Roberts's Midwestern reserve played well with Bush. T h e fact that Roberts had just adopted two young children especially impressed the president.

Still, Luttig was the conservative's dream choice—probably smarter than his mentor Scalia, twenty years younger, and very likely more conservative. H e had been a hero to the movement since 1 9 9 1 , when as a J u s t i c e Department officiai he had steered Thomas through his agonizing confirmation hearings. Luttig's long history o f writing conservative judicial opinions made him the opposite o f a stealth nominee; he was a guarantee. Much more than Roberts, Luttig had paid his dues to the cause.

Luttig had one important ally on the W h i t e House staff—who was also a Roberts skeptic, i f not an outright detractor. Harriet Miers had been W h i t e House counsel for only a few months, replacing Gonzales when he was named attorney general. She did not come out o f the Washington legal establishment that seemed so enamored o f J o h n Roberts. All she heard about Roberts was . . . Trust us, trust us, he's a real conservative. B u t that wasn't enough for Miers. She was a lawyer who believed in facts, not opinions. Her favorite candidate was Sam Alito, who had written dozens o f judicial opinions that left no doubt in Miers's mind that he belonged on the Supreme Court. As for Roberts, Miers wanted the same level o f proof that he was a Bush con­ servative.

Miers was so skeptical o f Roberts that she summoned Leonard Leo, the executive vice president o f the Federalist Society, to make the case

276 Jeffrey Toobin

for him. Leo, along with Boyden Gray, J a y Sekulow, and Ed Meese, served as the principal emissaries between the W h i t e House and the conservative movement on Supreme Court nominations. Even among that quartet, Leo was known as the monitor o f the various nominees' ideological purity. Miers wanted Leo to convince her that Roberts was a true conservative. Leo assembled a selection o f Roberts's writings from the Reagan W h i t e House and his decisions from the D.C. Circuit and walked Miers through them, but she still had her doubts. " W e l l , " Miers said, signaling the direction the search was going, "I hope you're right."

Miers had worked in the W h i t e House, largely in obscurity, throughout the first term. She came to Washington from her law practice in Dallas to be Bush's staff secretary, an important but largely ministerial job that involves controlling the paper flow in and out o f the Oval Office. T h e job suited her meticulous temperament and deep loyalty to Bush. T h e only substantive responsibility was examining the recommendations that came to the president and determining whether they comported with his ideology and record. To do her job, Miers felt she almost had to know Bush so well that she had, in essence, to become him.

N o one was better suited to this self-denying task than Miers. For one thing, no one worked harder. Her red Mercedes (with Bush bumper stickers going back to his gubernatorial races) was often the first one in the W h i t e House parking lot in the morning and the last one out at night. After two years as staff secretary, she moved on to be deputy chief o f staff for policy, another job where she had to test ini­ tiatives from the cabinet departments for their loyalty to the Bush program. Miers had few known views o f her own but a fierce alle­ giance to the president, both personally and politically. Her question about J o h n Roberts was: W h a t has he ever done to pay his dues to the cause?

D i c k Cheney had similar questions. T h e vice president was the only figure in the W h i t e House who was touting Scalia as a possible replacement for Rehnquist, whose departure seemed imminent. As became clear in their duck-hunting expedition, Cheney and Scalia had been friends since the Ford years. (The lawyers on the W h i t e House staff regarded a possible Scalia promotion as an unnecessary additional confirmation fight for a man who, at age sixty-nine, probably would not serve for very long anyway.) Cheney was also the guardian o f ide­ ological purity at the W h i t e House and, like Miers, he needed some

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proof that Roberts was actually as conservative as his backers prom­ ised he would be.

Their doubts may have been overcome in any case, but then a for­ tuitous coincidence sealed Roberts's nomination. O n J u l y 1 5 , 2 0 0 5 , the day o f his interview with Bush, the D . C . Circuit upheld the ad­ ministration's plans for the use o f military tribunals for the prisoners held at the navy base at Guantânamo Bay, Cuba. In 2 0 0 4 , o f course, O'Connor's scathing rebuke to the administration in the Hamdi case had mandated that the detainees receive some sort o f due process o f law. In Hamdan v. Rumsfeld, Roberts joined a three-judge panel that approved the Bush plan that had been developed in response to O'Connor's scolding. In that case, it was clear that the administra­ tion's procedures did not comport with the Geneva Conventions, which required that all prisoners receive trials "by a regularly consti­ tuted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." B u t Roberts and his colleagues said the Bush administration did not have to comply with the inter­ national treaty, because the "Geneva Convention cannot be judicially enforced."

N o issue mattered more to Cheney (and to Bush and, thus, to Miers) than preserving the power o f the president, especially with regard to what the president called the global war on terror. International obligations, and especially the Geneva Conventions, drew sneers in this W h i t e House. T h e vice president believed that since the Nixon years the executive branch had steadily ceded author­ ity to Congress, the courts, and even international institutions, and he made it his mission to arrest that decline. (It was the principle at is­ sue in the energy task force/duck-hunting case in the Supreme Court.) As important as abortion was to the outside conservative groups, the issue o f executive power—and stopping the meddling o f liberal judges—was to Cheney. W i t h Hamdan, Roberts had proved himself worthy. Cheney and Miers were on board.

The next Monday, Roberts was told to return from London once more; Bush's decision was near. T h e following morning, Tuesday, J u l y 1 9 , rumors swept Washington that the choice would be Clement, who had met with Bush over lunch on Saturday. (Sekulow, who fancied himself a W h i t e House insider but was merely a useful instrument to

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those in power, spent the morning saying Clement was a done deal.) In fact, at 1 2 : 3 5 , Bush left a meeting with the Australian prime min­ ister to call Roberts and offer him the job. Roberts's wife and two children joined him and the president at the W h i t e House for dinner at 7 : 0 0 , and at 9 : 0 0 , in the East R o o m , on live television, Bush intro­ duced Roberts to the nation. T h e contrast with the last announce­ ment o f a Supreme Court nominee was stark. In 1 9 9 4 , during the news graveyard o f Friday afternoon, Clinton had made a rushed and grumpy disclosure o f Breyer's name, without even having the nomi­ nee by his side. Bush was showcasing Roberts in prime time.

W i t h his two children scampering nearby, his son, J a c k , in short pants acting out Spiderman moves, Roberts spoke as the best Supreme Court advocates always do—without notes. "Thank you, Mr. President," he said. "Thank you very much. I t is both an honor and very humbling to be nominated to serve on the Supreme Court. Before I became a judge, my law practice consisted largely o f argu­ ing cases before the Court. T h a t experience left me with a profound appreciation for the role o f the Court in our constitutional democracy and a deep regard for the Court as an institution. I always got a lump in my throat whenever I walked up those marble steps to argue a case before the Court, and I don't think it was just from the nerves. I am very grateful for the confidence the president has shown in nom­ inating me, and I look forward to the next step in the process before the United States Senate." H e concluded by thanking his family and acknowledging his children, "who remind me every day why it's so important for us to work to preserve the institutions o f our democ­ racy."

Any doubts about Roberts's confirmation, to the extent there ever were any, vanished that evening. His obvious intelligence, abundant qualifications, and even his wholesome good looks would have made sustained opposition difficult. W i t h i n a day o f the Roberts choice, Republicans in the Gang o f 14 were saying that his nomination did not constitute the "extraordinary circumstances" justifying a fili­ buster. More important, the Democrats in the gang quickly agreed. As Senator Joseph Lieberman said, "This is a credible nominee and not one that, as far as we know now, has a record that could in any sense be described as extremist." W i t h fifty-five Republicans in the Senate and a filibuster effectively off the table, Roberts could expect to cruise to confirmation. His hearings were set to begin on Tuesday, September 6 , the day after Labor Day.

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Rehnquist had surprised almost everyone by not resigning on the last day o f the term in J u n e . His voice had been raspy and his tracheotomy tube still in place, but his good humor that day suggested he m i g h t be holding his disease at bay. His stated hope to O'Connor that he wanted to serve one more year appeared plausible, i f not exactly real­ istic.

B u t the chief's health had declined over the summer. Anaplastic thyroid carcinoma is an especially virulent cancer; it is rare for pa­ tients to live longer than a year after diagnosis, and Rehnquist by summer had passed the eight-month mark. His mind never failed, and he was delighted to learn that Roberts, his former law clerk, had been nominated to serve with him. Only four former Supreme Court law clerks had gone on to become justices: Byron W h i t e (clerk for Chief J u s t i c e Fred Vinson), Rehnquist himself (for Robert J a c k s o n ) , Stevens (for Wiley Rutledge), and Breyer (for Arthur Goldberg). Roberts would have been the first to serve alongside his one-time boss.

During the summer, although Rehnquist was twice taken to the hospital with breathing problems, his dry humor remained intact. W h e n asked on his final visit to the emergency room who his primary care physician was, the chief muttered, "My dentist." O n Monday, August 2 9 , he told a visitor to his home that he still planned to par­ ticipate when the Court opened in October, but at that point there was nothing more his doctors could do for him. H e died with his three children beside him in his town house in Arlington on the night o f Saturday, September 3.

Earlier in the week o f Rehnquist's death, starting on August 2 9 , Hurricane Katrina nearly demolished New Orleans and the surround­ ing area. T h e stumbling federal response to the crisis transformed the Bush presidency, including the selection o f Supreme Court justices.

T h e president didn't make it to the general vicinity o f the damage until September 2 , when he received a briefing at the airport in Mobile, Alabama. There, on that morning, Bush uttered one o f the defining phrases o f his presidency—"Brownie, you're doing a heck o f

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a j o b " — t o the hapless director o f the Federal Emergency Manage­ ment Agency, Michael Brown. Even in the first few days after Katrina, it was clear that the W h i t e House needed any distraction from the calamity.

In normal circumstances, Bush m i g h t have taken some time to study his options following Rehnquist's death on the Saturday of a holiday weekend. Cheney, as well as some others in the conservative movement, had been urging him to consider promoting Scalia, and the idea at least seemed worthy o f some consideration. B u t Roberts's nomination in J u l y had been a total success, and now the administration—rather desperately—needed another. As almost always throughout his presidency, Bush defined success as pleasing his base.

Over the summer, conservatives embraced Roberts, who was little known outside Washington when he was nominated. During that time, reporters obtained access to about 7 5 , 0 0 0 pages o f documents from Roberts's days as a young lawyer in the Reagan W h i t e House. His memos showed him to be an enthusiastic and sometimes caustic conservative who, for example, dismissed "the purported gender gap" between men and women in income and asserted that proposals to address the problem were "staggeringly pernicious" and "anti- capitalist." Reflecting the views o f his bosses, Roberts supported school prayer and opposed affirmative action. In response to a proposal by a Democratic congressman to hold a "conference on power- sharing" to iron out the duties o f each branch o f government, Roberts said, "There already has, o f course, been a 'Conference on Power Sharing.' It took place in Philadelphia's Constitution Hall in 1 7 8 7 , and someone should tell [Congressman} Levitas about it and the 're­ port' it issued."

In the mainstream news media, which were still largely working off an obsolete model o f the confirmation process, these memos were generally treated as problems for Roberts's nomination (although manageable ones, to be sure). T h e governing idea behind the news coverage was that Roberts, like Bork, risked defeat i f he was seen as too conservative. B u t the truth was precisely the reverse—that the only threat to a Bush nominee to the Supreme Court was i f he or she was seen as not conservative enough. As Manuel Miranda wrote in the online Wall Street Journal about Roberts's Reagan-era memos, "One sentiment is widely shared among conservatives: W h a t a relief. J u d g e Roberts's writing as a young lawyer show him to be a solid constitu­ tionalist."

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Bush needed good news so badly that he acted with a degree o f haste that was nearly disrespectful to Rehnquist. A t 8:01 a.m. on September 5, Labor Day, less than forty-eight hours after Rehnquist died, Bush summoned the news media to the Oval Office to announce that he was nominating Roberts to be the seventeenth chief justice o f the United States. "For the past two months, members o f the United States Senate and the American people have learned about the career and character o f J u d g e Roberts," Bush said. "They like what they see. He's a gentleman. He's a man o f integrity and fairness."

The continuing fallout from the hurricane meant that Roberts's hearings received relatively little attention, especially since the out­ come was a foregone conclusion. (They began slightly later than orig­ inally planned because Roberts was now being considered for chief, not associate, justice.) In his opening statement, on September 1 2 , Roberts said, "A certain humility should characterize the judicial role. Judges and justices are servants o f the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. T h e role o f an umpire and a judge is critical. They make sure everybody plays by the rules. B u t it is a limited role. Nobody ever went to a ball game to see the umpire." Roberts was right about the motivations o f baseball fans, i f not Supreme Court justices. In truth, unlike umpires, Supreme Court justices do make the rules, and their job amounts to far more than a mechanical process o f applying them.

As to how Roberts himself would apply the vague commands o f the Constitution, he was careful not to commit himself. Under ques­ tioning from Arlen Specter, Roberts said that Roe was "settled as a precedent o f the court, entitled to respect under principles o f stare de­ cisis," but he also pointed out that the justices sometimes reversed their own precedents. Roberts wouldn't say how he would vote on Roe. Like all other nominees, Roberts dodged making commitments, but his winning manner and broad erudition were manifest. H e re­ membered the names o f old cases with ease and summarized the arguments on a wide variety o f constitutional controversies. He quoted the Federalist papers from memory. Senator D i c k Durbin, an Illinois Democrat, spoke for many when he said Roberts "retired the trophy" for outstanding performance by a judicial nominee. O n September 2 2 , he was confirmed by the Judiciary Committee by a vote o f 1 3 - 5 . A week later, he was confirmed by the full Senate by a vote o f 7 8 - 2 2 .

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Shortly after Bush nominated Roberts for chief justice, the W h i t e House announced that the president would refrain from announcing his choice for the O'Connor seat until the new chief was confirmed. Administration officials reasoned wisely that there was no reason to give political opponents several extra months to attack a second choice for the Court. B u t even though the W h i t e House wasn't mak­ ing any names public as possible replacements for O'Connor during that period, Bush's aides were weighing their options.

W i t h the exception o f the Roberts nomination, the summer brought only dismal news for the Bush administration. Earlier in 2 0 0 5 , Iraqis had staged their first free elections since the war, and the voters' purple-ink-stained fingers became symbols o f a hopeful emerging democracy. B u t in the months that followed, chaos reigned, and dozens o f American troops continued to die in Iraq each month. Also during this period, Bush's plan for including private ac­ counts in the Social Security system crashed, scorned even by most Republicans. Finally, the overall federal response to Hurricane Katrina was widely viewed as indifferent at best and incompetent at worst. Bush's approval ratings plunged—from around 6 0 percent fa­ vorable at the time o f his reelection to about the same percentage un­ favorable less than a year later. It was in this context that the president made his second appointment to the Supreme Court.

Once again Bush considered naming a woman to the Court. After O'Connor's resignation, he had been pressured on the subject from some unusual sources. W h i l e on a trip to South Africa, Laura Bush said on N B C ' s Today show, "I would really like him to name another woman." Later that day, Bush appeared startled that his usually cir­ cumspect wife had made such a direct appeal through the press. "I can't wait to hear her advice—in person—when she gets back," he said in the Oval Office. O'Connor herself signaled that she felt more freedom in her public comments now that she was a lame duck. Returning to a judicial conference in Spokane after a day of fly­ fishing, she was informed that Roberts would be named to replace her. "That's fabulous!" she said, calling Roberts a "brilliant legal mind, a straight shooter, articulate. He's good in every way, except he's not a woman."

B u t what woman? Bush had already considered various possibili-

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ties earlier in the summer, and he had not come up with a perfect choice. T h e president had been explicitly warned by Harry Reid, the Democratic leader in the Senate, that the women judges most beloved by conservative activists—Janice Rogers Brown, Edith J o n e s , and Priscilla Owen—would likely meet a filibuster. Bush didn't shy from confrontations, but he saw no reason to prompt an unnecessary clash either. Wouldn't it be better to propose a justice who shared his own views—which were essentially indistinguishable from those o f his party's most conservative members—but who would also have an easy time getting confirmed? Was there anyone who fit that description?

As Bush was talking about the issue with his aides, he remembered something else that Reid had said earlier in the summer. Reid, too, wanted to avoid an unnecessary battle over the Supreme Court. In ad­ dition to proffering his Democratic blacklist, the senator raised an in­ teresting possibility. H e said he had met with Harriet Miers shortly before Roberts was nominated and he had been very impressed. Reid said Bush should consider his own W h i t e House counsel as a nomi­ nee to the Supreme Court.

Bush was intrigued. N o one was more loyal to him and his agenda than Harriet. And the Democratic leader was suggesting that she could be confirmed without a fight.

22

"I KNOW H E R HEART"

The nomination o f Harriet Miers to the Supreme Court quickly devolved into political black comedy. The caricature o f Miers that emerged during her brief journey across the na­ tional consciousness—that o f a luckless spinster manifestly unquali­ fied to serve on the Court—contains a measure o f truth, but her defeat actually stood for something o f larger significance. Miers holds a unique place in the history o f the Supreme Court as the only nominee to withdraw her name from consideration by the Senate even though she probably would have been confirmed. W h y would anyone do such a thing? Because Miers had been vetoed by the most conservative el­ ements o f the Republican Party.

Shortly after O'Connor announced her resignation in J u l y o f 2 0 0 5 , Andrew Card, Bush's chief o f staff, had asked Miers whether she wanted to be considered for the vacancy, and she declined. As a result, Miers administered the W h i t e House operation for selecting the next justice. She was well suited for the job, because it called for meticu- lousness and discretion and thus resembled her earlier work in the W h i t e House, as staff secretary and then deputy chief o f staff. In her new post as W h i t e House counsel, Miers had run the search, supervis­ ing her associate counsels' updates o f the candidate memos and then bringing in the finalists for interviews. She also consulted with mem­ bers o f the Senate, leading Harry Reid to become a fan. Once Bush chose Roberts, Miers coordinated the W h i t e House end o f the confir­ mation process—juggling the requests for information from senators, managing the preparation o f the mammoth background question­ naire that Supreme Court nominees must complete, and arranging for the "murder boards" where Roberts trained for his testimony before

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the Judiciary Committee. This complex process went as smoothly as Roberts's own performance, so the easy confirmation o f the new chief justice cast a favorable glow on Miers as well as Roberts himself.

Bush did not focus as much on the second vacancy as he did on the first. He spent almost the whole month o f August 2 0 0 5 on vacation at his ranch in Crawford, Texas. W h e n he returned to Washington, he immediately became preoccupied with trying to address the human­ itarian and political aftermath o f Hurricane Katrina. B y mid- September, the Roberts process was wrapping up, and Bush still had no nominee for the O'Connor seat—and hadn't thought much about it, either.

Miers had returned to her role o f running the search. Prodded by the unusual public nudge from his wife, Bush said he wanted to nom­ inate a woman for the O'Connor seat, so that was how Miers focused her efforts. During one two-and-a-half-hour session with representa­ tives o f conservative activist groups, Miers went through a list o f all fe­ male Republican appointees to the federal courts o f appeals, weighing their suitability for a nomination. Some were appealing but intellectu­ ally undistinguished (Edith Brown Clement), others were too politi­ cally inflammatory to get through the Senate ( J a n i c e Rogers Brown and Edith J o n e s ) , others were dismissed as too moderate (Consuelo M . Callahan o f the N i n t h Circuit). Because women judges, like women generally, tend to be more liberal than their male counterparts—and because Democrats like Clinton appointed more women to the bench than Republicans—the female Republican pool was not large. N o can­ didate stood out, either to Miers or to her superiors.

Still, Miers's competence in handling this process impressed Bush, who had a history o f turning the leader o f a search into its target. (In 2 0 0 0 , of course, D i c k Cheney had led the vice presidential selection process that led to his own designation.) Unhappy with the available options, Bush mentioned Miers as a candidate to Card. He, in turn, told B i l l Kelley, Miers's deputy, to look into the possibility. Miers learned o f Card's interest, and this time she didn't rule out a nomina­ tion, though neither she nor Kelley took it very seriously. Kelley set to work on a memo about his boss's qualifications.

O'Connor and Miers were born fifteen years apart—in 1 9 3 0 and 1 9 4 5 , respectively—and they both grew up in the Southwest at a

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time when women lawyers were considered an exotic and often un­ welcome species. B u t the differences between them reflected both the swiftly changing fortunes o f women in the p o s t - W o r l d War I I era and more fundamental contrasts in character. O'Connor grew up on a ranch, and Miers was raised in a big city, Dallas. O'Connor was wealthy, Miers wasn't. Her father ran a struggling real estate business before he had a stroke when she was a freshman at Southern Methodist University, and she won a scholarship and worked to make it through S M U and its law school. W h e n O'Connor came out o f Stanford Law in 1 9 5 2 , she received no better offer than a secretary's job at a law firm. W h e n Miers graduated in 1 9 7 0 , she also found a frosty recep­ tion but managed to land a prestigious clerkship with a federal judge who introduced her to the law firm where she would spend the next twenty-four years o f her life, Locke, Lidell & Sapp.

Once O'Connor settled in Phoenix, she lived in a happy frenzy, jug­ gling legal work, a growing family, and a passion for politics and rau­ cous fun. Miers found a different route to success—narrow focus and dogged effort. B y relentless hard work she overcame the customary condescension shown to women lawyers. She was the first woman lawyer at her firm, and its first woman president. Like most big-firm litigators, she tended to represent corporations in lawsuits that settled before trial; companies like Disney and Microsoft, two o f her major clients, generally preferred the certainty o f a resolution to the risk o f a court verdict. Miers's long hours left little time for diversion. W h e n she was deposed in a lawsuit in 1 9 8 9 , the opposing lawyer asked i f she had read a particular book. "I probably can shorten this line o f ques­ tioning," Miers said, " i f you just asked me when's the last time I read a whole book."

Miers's existence outside the firm amounted to an extension o f her life in it. She belonged to the Democratic Party when virtually all o f the state's power brokers did; she contributed $ 1 , 0 0 0 to Al Gore's campaign for president in 1 9 8 8 . She worked her way up the hierarchy in the state bar association, a traditional route for advancement in the profession, until she became the first woman president o f the Texas bar in 1 9 9 2 . T h e previous year, she had quit after serving a single two-year term as a member o f the Dallas City Council. She felt ill suited for running for office, because she was far more interested in corporate work than in politics. She didn't litigate constitutional is­ sues or, it would seem, based on the available evidence, give them much thought either.

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Like many other single-minded careerists who had focused on their professional life to the exclusion o f most everything else, Miers ap­ pears to have undergone a spiritual crisis o f sorts. For many years, she had an on-and-off romantic relationship with Nathan Hecht, a com­ bative conservative who was a justice on the Texas Supreme Court. Miers was raised a Catholic, but Hecht invited her to join him at Valley View Christian, one o f the biggest evangelical churches in Dallas. She did—and it changed her life. As her minister recalled, "Her purpose for life changed. She has a servant's mentality, and I think that is a tribute to her personal faith. Jesus told his disciples that he didn't come to be served but to serve. Harriet epitomizes that."

Not long after Miers's religious conversion, George W. Bush, who was then running for his first term as governor, ran into some trouble involving a fishing club in east Texas. T h e caretaker said he had been unjustly fired, and he was suing the members, including Bush. T h e future governor hired Miers as his lawyer, and she deftly (and quietly) won the case. T h e up-and-coming politician kept her on as his per­ sonal attorney, and Miers embraced George W. Bush with the same born-again passion that she brought to her new church.

On September 2 1 , 2 0 0 5 , Bush held a meeting with a bipartisan group o f senators about his plans for filling O'Connor's seat. To some extent, such "consultations" with senators were a sham; the Bush W h i t e House zealously guarded its prerogatives, and no presidential power was more important than the right to select Supreme Court justices. At the meeting, Arlen Specter set his colleagues' eyes rolling with a preposterous suggestion—that Bush wait until 2 0 0 6 to nom­ inate anyone, so as to see how Roberts was faring as chief justice, and then to appoint someone who would preserve the Court's balance. B u t Bush and his supporters wanted change on the Court, not balance, and they ignored Specter's idea. Harry Reid then again mentioned Miers as a possible candidate.

The idea still made sense to the president—the appointment of, in effect, his own ideological clone who would attract no opposition from the Democrats in the Senate. That night Bush summoned Miers to the Oval Office and formally asked her whether she wanted to be considered. This time, she said yes.

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Miers's presence as an official candidate for the seat complicated the search process, which was now accelerating as Roberts's confirmation grew nearer. (The Judiciary Committee approved Roberts on September 2 2 . ) Miers was not asked to bring in any other candidates for interviews with Bush. Only a handful o f staffers, including Card, Rove, and Kelley, knew that Miers was a candidate, and they all hon­ ored Bush's wish for a selection process without leaks. On the day that the committee approved Roberts, Kelley called Leonard Leo o f the Federalist Society and told him that Miers had become a serious can­ didate. They met the next day for breakfast at the Ritz-Carlton in Tysons Corner, and Leo said that Miers's lack o f a record would pre­ sent a problem for conservative groups. "This would be a heavy lift," he said. B u t Leo's message never penetrated the upper levels o f the W h i t e House. (During the following week, Leo tried to sound out his colleagues in the conservative movement about a Miers nomination, but no one would take the idea seriously. They didn't approve or dis­ approve so much as dismiss her appointment as a possibility.) Every W h i t e House is an echo chamber o f sorts, and leaks often serve the useful purpose o f flushing out problems. B u t since there were no leaks about Miers, no one in the W h i t e House knew what the reaction to her nomination would be.

All o f the top officials who were considering Miers's appoint­ m e n t — B u s h , Cheney, Card, Rove, and Miers herself—had relatively little idea what Supreme Court justices actually do all day. ("All we do is read and write," Breyer liked to say. "I used to tell my son i f you're really good at doing homework, you get to do homework for the rest o f your life.") Everyone in Bush's inner circle came out o f the corporate world, where they believed that good judgment and in­ stincts mattered more than reflective analysis. T h e same was true for corporate lawyers. Bush would never have dreamed o f asking prospec­ tive members o f his cabinet for writing samples, and he didn't require them o f Miers either. For the president, it was not a problem that Miers had no writing to offer.

Talking only to a handful o f insiders—and again to Miers on September 2 8 and 2 9 — B u s h grew more and more convinced that she was a good choice. T h e i r last conversations had to do less with whether she belonged on the Supreme Court and more with whom the W h i t e House m i g h t recruit as knowledgeable surrogates to speak on her behalf. A t this point, the search remained leak-free. R e ­ markably, the first time any news accounts mentioned Miers was just

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before Roberts was confirmed on September 2 9 , and even then her name appeared only at the end o f a long list o f possibilities. B u t when Miers agreed to be considered on September 2 1 , the search process es­ sentially stopped.

Only over the weekend o f October 1-2 did the W h i t e House be­ gin notifying outsiders that Miers m i g h t be the choice. Like the pres­ ident, Karl Rove played a less active role in the selection o f the second justice. Heavily involved in trying to handle the fallout from Katrina, he was facing an additional problem. During September, the prosecu­ tor Patrick Fitzgerald's criminal investigation into the leak o f C I A of­ ficial Valerie Wilson's name had reached a critical stage; Rove faced the real possibility o f being indicted.

So it was not until Sunday, October 2 , that Rove fully engaged with the nomination process. His first call—which revealed whose opinion really mattered—was to J a m e s Dobson, the founder and leader o f Focus on the Family, to tout Miers's credentials. Rove as­ sured Dobson that Miers was an evangelical Christian and a strict con­ structionist. Rove said further that her friend Nathan Hecht o f the Texas Supreme Court could vouch for Miers's soundness on social is­ sues. In fact, Hecht himself would be speaking on a conference call for evangelical leaders the following day. Rove's stroking o f Dobson made political sense, because Bush's political adviser knew, even i f the mainstream media did not, that it was evangelical leaders like Dobson, not Senate Democrats, who had the power to make or break Bush's nominees.

That Sunday afternoon, Bush formally offered the appointment to Miers. She accepted, and the W h i t e House press office spent the evening working in secrecy to produce the biographical material and talking points that would accompany the announcement.

On Monday, October 3 , at Bush's now customary 8:01 a.m., the president and Miers stood side by side in the Oval Office. "This morn­ ing, I'm proud to announce that I am nominating Harriet Elian Miers to serve as associate justice o f the Supreme Court. For the past five years, Harriet Miers has served in critical roles in our nation's govern­ ment, including one o f the most important legal positions in the country, W h i t e House counsel. She has devoted her life to the rule o f law and the cause o f justice," he said. "I've known Harriet for more than a decade. I know her heart, I know her character. I know that Harriet's mother is proud o f her today, and I know her father would be proud o f her, too. I'm confident that Harriet Miers will add to the

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wisdom and character o f our judiciary when she is confirmed as the 1 1 0 t h justice o f the Supreme Court."

Miers, unlike Roberts, chose to read her brief remarks: "From my early days as a clerk in the federal district court, and throughout al­ most three decades o f legal practice, bar service, and community ser­ vice, I have always had a great respect and admiration for the genius that inspired our Constitution and our system o f government. My re­ spect and admiration have only grown over these past five years that you have allowed me to serve the American people as a representative o f the executive branch." Then Miers tried to define her judicial phi­ losophy, which she clearly had not developed in her legal career. "The wisdom o f those who drafted our Constitution and conceived our na­ tion as functioning with three strong and independent branches have proven truly remarkable," she began, ungrammatically. "It is the re­ sponsibility o f every generation to be true to the founders' vision o f the proper role o f the courts in our society." B y citing the "founders' vision," Miers was positioning herself as an originalist, like Scalia. " I f confirmed," she went on, "I recognize that I will have a tremendous responsibility to keep our judicial system strong, and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution." Likewise, the use o f the word strictly was meant to identify her with strict constructionists, like Rehnquist.

B u t Miers's tentative advocacy for herself was already late. B y the time her announcement ceremony concluded at 8 : 1 4 a.m., the assault on her had already begun.

A t 8 : 1 2 , Manny Miranda sent out an e-mail to his colleagues in the conservative movement. "The president has made possibly the most unqualified choice since Abe Fortas, who had been the president's lawyer," Miranda wrote. "The nomination o f a nominee with no judi­ cial record is a significant failure for the advisors that the W h i t e House gathered around it." A t 8 : 5 1 , David Frum, a former speech- writer in the Bush W h i t e House, offered a similar dismissal o f Miers, based on firsthand knowledge. "Harriet Miers is a taut, nervous, anx­ ious personality," Frum wrote on his blog for the National Review. "I am not saying that Harriet Miers is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good rea­ son to believe either o f these things."

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Later that day, as Rove had promised, Nathan H e c h t , as well as an­ other Texas judge, Ed Kinkeade o f the federal district court, convened a conference call for conservative leaders, to make an affirmative case for Miers. T h e call was organized for members o f the Arlington Group, an alliance o f about sixty "pro-family" groups, and its m e m ­ bers included such well-known figures as Gary Bauer o f the American Values group, Richard Land o f the Southern Baptist Convention, and J a m e s Dobson, the national chairman o f the group. (The Arlington Group had been a leading advocate for placing constitutional amend­ ments against gay marriage on state ballots in 2 0 0 4 , a strategy that was widely credited with increasing conservative turnout and aiding the Bush campaign.) Dobson presided over the call, saying Rove had suggested that Hecht and Kinkeade could vouch for Miers s conserva­ tive bona fides. T h i s , o f course, led to the key question about her can­ didacy.

"Do you believe she would vote to overturn Roe v. Wade?" "Absolutely," said Kinkeade. "I agree with that," said Hecht. The electronically assembled conservatives were mollified—for the

moment.

News o f the conference calls quickly leaked. T h e press attention spooked Kinkeade from further campaigning for Miers s confirma­ tion. Hecht was energized by it.

In the next week or so, Hecht gave more than 1 2 0 interviews on Miers s behalf and proved to be a mixed blessing as an advocate. Hecht had served on the Texas court since 1 9 8 8 and established him­ self as the most extreme right-wing voice on an already conservative court. He spoke often about Miers s devout faith and her decision, late in life, to become baptized in his evangelical church. B u t his message was compromised somewhat by his ambiguous status in her life. Hecht's stream-of-consciousness ramblings to reporters somehow pro­ vided both too little information—and too much. " W e are good, close friends," Hecht told the Los Angeles Times. "And we have been for all these years. W e go to dinner. W e go to the movies two or three times a year. W e talk. And that's the best way to describe it. W e are not dat­ ing. W e are not seeing each other romantically. N o t currently." Hecht's vigorous and lonely advocacy raised the possibility that the

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only one the W h i t e House could find to endorse Miers was her boyfriend. (Hecht apparently had a complicated social life. He was also the sometime boyfriend o f Priscilla Owen, his former colleague on the Texas Supreme Court, who had recently been confirmed to the Fifth Circuit and was a favorite o f conservatives for the nomination that went to Miers.)

T h e absence o f pro-Miers surrogates reflected the nature o f her work for Bush, both in Texas and in Washington, as well as her per­ sonality. In Austin, Bush gave her the part-time job o f supervising the state's troubled lottery system, but her real work for him consisted of private legal counseling—not the kind o f activity that produces a body o f public accomplishments. Similarly, as staff secretary and then deputy chief o f staff at the W h i t e House, Miers operated as a coordi­ nator and traffic cop more than as an initiator o f ideas. N o one could testify to her views on constitutional law, because she had never been called on to have any. Even when Miers filled out her questionnaire for the Senate, listing the significant cases she had litigated, most o f the trials were business disputes that settled. She had never argued a case in the United States Supreme Court or even in the Texas Supreme Court.

It quickly became apparent that the W h i t e House had no backup plan for pushing Miers's nomination. Rove and the others figured that Hecht's word would calm any conservative uncertainty, and Bush counted on the Republicans who controlled the Senate to fall into line, just as they had on every other issue for the past four-and-a-half years. Crucially, though, Bush failed to see that Iraq and Katrina had crippled his influence in Congress. T h e nomination o f Miers reflected Bush's arrogance, his sense that vouching for his personal lawyer would be all that was necessary to bring the Senate along. The presi­ dent had miscalculated his own remaining clout—and the impor­ tance o f the Supreme Court to his more ardent supporters. O n this issue above all, a "Trust me" from George W . Bush would simply not be enough.

Although the right tried to phrase its complaints about Miers as a matter o f qualifications rather than o f ideology, its sleight o f hand amounted to little more than a pretense. In recent years, the Supreme Court had been populated exclusively with experienced appellate

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judges (despite Clinton's hapless attempt to break the trend), but in the broader sweep o f history Miers's qualifications were hardly un­ usual. Lewis Powell had never worked in government and had, like Miers, served prominently in local and national bar associations; W i l l i a m Rehnquist had a routine civil practice in Phoenix, followed by his tenure as an assistant attorney general, heading the Office o f Legal Counsel; Byron W h i t e spent even less time as deputy attorney general following an unremarkable career as a private lawyer in Denver. For the movement conservatives, the problem with Miers was not her lack o f qualifications but their own lack o f certainty that she would follow their agenda on the Court.

Still, Miers's rocky debut on the national scene did not immedi­ ately doom her nomination. Harry Reid welcomed the choice, as did some Republican senators, like J o h n Cornyn o f Texas. O n the Wednesday after she was nominated, Miers paid her first courtesy call on her home-state senator, and Cornyn embraced her publicly, play­ ing a populist card on her behalf. She filled a "very real and important gap" on a Supreme Court dominated by Ivy Leaguers and Beltway in­ tellectuals, he said after she left his office; he asked conservatives to "reserve judgment" and said that Miers had "ample qualifications" and was an "engaging person." W i t h few exceptions, senators did what came naturally: they refrained from making commitments one way or the other.

B u t the conservative rebellion was just starting. K e n Mehlman, the chairman of the Republican National Committee, and his predecessor, Ed Gillespie, attended a pair o f gatherings o f conservative activists in Washington, and both ran into a torrent o f complaints about Miers. "For the president to say 'Trust me,' it's what he needs to say and has to say, but it doesn't calm the waters," said Grover Norquist, the head o f Americans for Tax Reform and the host o f one o f the meetings. "I told Mehlman that I had had five 'trust-mes' in my long history here," Paul Weyrich, the host o f the other luncheon, remarked, referring to the nominations o f Stevens, O'Connor, Kennedy, and Souter as the others. "And I said, T'm sorry, but the president saying he knows her heart is insufficient.' " W h e n Gillespie told his group that there was a "whiff o f sexism and a whiff o f elitism" about the complaints, he was nearly shouted down with demands that he apologize for the slur. Mehlman replied by citing Bush's decade-long friendship with Miers: "What's different about this trust-me moment as opposed to the other ones is this president's knowledge o f this nominee."

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T h i s conservative outcry against Miers in October was nearly iden­ tical to the one against the possible nomination o f Alberto Gonzales in July. As with Gonzales, Miers's critics on the right could not point to any unacceptable positions that she had taken; also as with Gonzales, W h i t e House officials watched with astonishment a col­ league they knew to be one o f the most fervent conservatives on the staff portrayed as a closet liberal.

Facts played little part in the assault on Miers. T h e public state­ ments about her, like those o f her friend Nathan Hecht, suggested that she held views precisely in line with those who were most out­ raged by her nomination. T h e record o f her single campaign for the Dallas City Council, while sparse, bore out Hecht's summary o f her views. In response to a questionnaire from Texans United for Life, Miers had said she would support a constitutional amendment to overturn Roe v. Wade, that she supported denying public funds to pro- choice groups, and that she would use her office "to promote the pro- life cause." It was not enough. T h e conservative movement against Miers fed on itself and grew.

For the most part, Democrats simply chortled, relishing the intramu­ ral quarrel on the other side o f the aisle. They made sure that reporters saw the fawning notes that Miers had written to Bush during his years as governor. "Hopefully, J e n n a and Barbara recognize that their par­ ents are 'cool'—as do the rest o f us," she wrote in one. "Keep up the great work. Texas is blessed!" And "You are the best governor ever— deserving o f great respect!" And "You and Laura are the greatest!"

Democratic senators raised questions about cronyism, which were especially resonant in the aftermath o f Katrina. B u t notably, not a sin­ gle Democratic senator announced his or her intention to vote against Miers. As the right-wing attacks on her grew more frenzied, some Democrats began to think that perhaps Miers really was a secret mod­ erate and thus the best they could hope for as a Bush nominee.

Specter set the start o f Miers's hearings for November 7, and as the date grew closer the chairman o f the Judiciary Committee made it clear that he was unimpressed with Miers. Unlike most o f his fellow Republicans, the dyspeptic Specter cared more about her qualifica­ tions than about her ideology. H e noted publicly that she would need a "crash course" on constitutional law, which was not something that

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anyone could have said about J o h n Roberts. O n October 1 9 , Specter and Patrick Leahy, the ranking Democrat on the committee, sent Miers a nasty letter complaining about several o f her answers on her questionnaire. They wanted more detail on "the nature and objec­ tives" o f all organizations to which she had belonged and "any and all communications, including those about which there have been recent press reports, in which friends and supporters o f yours, among others, were said to have been asked by the W h i t e House to assure certain in­ dividuals o f your views." In other words, they wanted to know about Hecht's promises that she would vote to overrule Roe. T h e senators gave Miers until October 2 6 to complete her answers.

Through the second and into the third week o f October, Miers con­ tinued to meet privately with senators and to prepare for her public testimony. Neither the meetings nor the rehearsals went especially well. Miers lacked Roberts's charm as well as his deep knowledge o f constitutional law—which allowed him to summarize the state o f the law at length without letting on much about his own views—and she did little in person to help her cause.

Still, despite the predictions o f her increasingly desperate enemies, Miers likely would have handled the hearings with relative ease. Congressional hearings almost always reflect better on the witness than on the senators, who generally come across (with some reason) as pompous and uninformed. Hostile cross-examination from conserva­ tives would almost certainly have evoked sympathy for the nominee. Miers's personal story o f triumph over adversity, like Thomas's four­ teen years earlier, would have counted for a great deal with the pub­ lic. T h e forty-four Democrats in the Senate, figuring that Miers was the best they could do (and already sixty years old), would probably have voted overwhelmingly to confirm. Even perfunctory lobbying by Bush would have produced a substantial number o f Republican votes. B y mid-October, Miers's confirmation looked l i k e l y — i f she could get to a vote.

That was why her enemies in the conservative movement were de­ termined to prevent that vote from ever taking place. O n October 2 1 , the syndicated columnist Charles Krauthammer, a conservative op­ posed to Miers, wrote, " W e need an exit strategy from this debacle. I have it." Senators should ask for "privileged documents from Miers's W h i t e House tenure," and the president should refuse to turn them over. The request could create a conflict " o f simple constitutional pre­ rogatives: T h e Senate cannot confirm her unless it has this informa-

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tion. And the W h i t e House cannot allow release o f this information lest it jeopardize executive privilege. Hence the perfectly honorable way to solve the conundrum: Miers withdraws out o f respect for both the Senate and the executive's prerogatives."

T h e idea was breathtakingly cynical—a more or less open fraud— but it served the conservatives' purpose. Republicans had been com­ plaining for years that Democratic filibusters were denying Bush's judicial nominees "up-or-down votes"; the president even used that phrase in his State o f the Union address in 2 0 0 5 . Yet the exact same people who were complaining about the denial o f votes to Bush's other judicial nominees were mobilizing to deny just such a vote to the W h i t e House counsel, who helped select most o f the other would- be judges. B u t to the conservatives, nothing mattered—not consis­ tency, not fairness, not the fate o f an otherwise allied figure—except getting guaranteed control o f the Supreme Court. T h e "Krauthammer solution," as it became known, was put into effect.

One person who could have stopped the railroading o f the nominee was Miers herself. In 1 9 8 7 , Robert Bork refused to withdraw even when it became clear that he would lose in the Senate, and the recorded vote went forward, a 5 8 - 4 2 defeat. In this case, it was by no means clear that Miers would lose. B u t at a fundamental level, Miers always acted more as Bush's attorney than as an independent actor. A lawyer always puts a client's interests ahead o f his or her own, and Bush's priority was pleasing his most conservative supporters, partic­ ularly when it came to the Supreme Court. Miers would not force Bush to disappoint his base, even at great personal cost. She would withdraw as a nominee.

A t 8 : 3 0 p.m. on Wednesday, October 2 6 , twenty-three days after Miers was nominated, she called Bush to tell him that she would drop out. For the moment, the decision remained their secret, and later that evening the W h i t e House even submitted the answers to the sen­ ators' follow-up questions. B u t the next morning, they executed the Krauthammer solution. Miers wrote a letter to Bush saying that sen­ ators were planning on asking about her service in the W h i t e House. "I have steadfastly maintained that the independence o f the Executive Branch be preserved. . . . Protection o f the prerogatives o f the Executive Branch and continued pursuit o f my confirmation are in tension. I have decided that seeking my confirmation should yield." In a statement issued the same day, Bush "reluctantly accepted" Miers's withdrawal.

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T h e next day, Friday, October 2 8 , Lewis "Scooter" Libby, the vice president's chief o f staff, was indicted in the C I A leak investigation for perjury and obstruction o f justice, ending perhaps the worst week of the Bush presidency. T h e Miers debacle and the Libby charges took place while the G u l f Coast remained in extremis and the Iraq disaster continued. Facing similar crises, other presidents had found refuge in moderation, in bipartisanship, in gestures o f conciliation to political adversaries.

B u t George W. Bush did not conduct that kind o f presidency. Over the weekend, Harriet Miers, ever loyal even in the face o f public hu­ miliation, accompanied the president to Camp David to help choose a replacement for herself. T h e i r goal remained unchanged—to select the most conservative possible Supreme Court justice, one who would be welcomed by J a m e s Dobson, the Arlington Group, Ed Meese, J a y Sekulow, Manny Miranda, and the rest o f the president's base. B y 8:01 on Monday morning, they had their man.

23

D I N N E R AT THE JUST DESSERTS CAFÉ

The weekend at Camp David was mainly for relaxation, at least for the president. Bush had already made up his mind. Notwithstanding the distraction o f the Libby indictment, both Bush and Andrew Card found time to call J u d g e Samuel A. Alito J r . in his chambers in Newark. Again the conversations were cursory, but they reflected Bush's more or less instantaneous decision. H e had liked Alito more than Luttig (the only other candidate con­ sidered), so Alito it would be. As for Laura Bush's preference for a woman, the Miers fiasco convinced the president that choosing a reli­ able conservative mattered more.

In a curious way, the nomination o f Alito amounted to Miers's re­ venge. Miers had been the lone skeptic about Roberts's conservative credentials, only to have her own nomination implode because she could not convince the true believers o f her own. So the seat went to Miers's favorite candidate from the beginning, the one who everyone agreed represented a guaranteed conservative voice. For Alito, Karl Rove would not need to organize plaintive conference calls to his friends in the conservative movement; they were already on board. As Manny Miranda wrote in his first blast e-mail on Monday morning, October 3 1 , just minutes after Bush and Alito stood together in the W h i t e House, "As with C h i e f J u d g e J o h n Roberts, the President has hit a grand slam with this nomination."

That was not Sandra O'Connor's view. Shortly after she announced her departure from the Court, the president held a private dinner for her

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at the W h i t e House, where O'Connor was invited to prepare the guest list o f about fifty people. After Bush's toast, O'Connor offered a per­ functory thank-you. And as she was leaving, she sighed to the wife o f a current justice, "Well, that wasn't so bad."

O'Connor had learned not to be shocked by anything Bush did, but the Alito nomination felt like a direct affront. O'Connor had been vaguely insulted by the Miers selection, as well. Regarding Miers, O'Connor asked acidly why Bush couldn't find anyone with more stature than his own lawyer. In fairness, Miers probably had about as much stature as O'Connor herself did in 1 9 8 1 as an obscure judge on a midlevel appeals court in Arizona. B u t by 2 0 0 5 , O'Connor had long since become accustomed to her status as the most powerful woman, and one o f the most admired, in America.

Alito was a different story altogether. To a great extent, the judi­ cial careers o f Alito and O'Connor had been denned by the same case—where they had been on opposite sides.

Like J o h n Roberts, Alito had been nominated for a federal appeals court judgeship during the first Bush administration. Unlike Roberts, Alito had been confirmed, taking his seat on the Third Circuit in 1 9 9 0 . T h e backgrounds o f the two men were similar. Alito came from more modest circumstances—his father was a civil servant in New Jersey state government—but young Sam, like the future chief justice, had an Ivy League education, with Princeton followed by Yale Law. Then, like Roberts, Alito had been a star among the cadre o f conservative young lawyers who accompanied Ronald Reagan to Washington. Alito spent four years in the solicitor general's office, two more with the Office o f Legal Counsel, and then, in 1 9 8 7 , became the U.S. attorney in his home state o f New Jersey. Alito had just turned forty in 1 9 9 0 when he received his lifetime appointment to the federal bench.

A year later, Alito had a chance to help his fellow judicial conserva­ tives usher Roe v. Wade to its demise. T h e new judge participated in the epochal Casey lawsuit as part o f the three-judge panel that reviewed the law. T h e Third Circuit panel upheld the law's restrictions on abor­ tion, such as its new rules on parental consent and waiting periods, al­ most in their entirety, but two o f the three judges thought one provision about spousal notification went too far. Noting that "the number o f different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limit­ less," the majority ruled that part o f the law violated women's rights.

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Alito disagreed. H e wrote his own opinion saying that he would have approved the Pennsylvania law in full and thus offered states a road map to restricting abortions as much as possible without outlaw­ ing the practice altogether. Since Pennsylvania wanted to limit the number o f abortions, Alito said the requirement that wives notify their husbands o f their plans was a reasonable means to that objective. Alito wrote in the same bland way that he spoke, and he observed, "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because o f perceived problems— such as economic constraints, future plans, or the husbands' previ­ ously expressed opposition—that may be obviated by discussion prior to the abortion."

T h e following year, the troika o f O'Connor, Kennedy, and Souter saved Roe in their joint opinion in this case. (In the small world o f conservative legal politics, J o h n Roberts, then the deputy solicitor general, signed a brief at the time, which urged the justices to over­ rule Roe once and for all.) In drafting the portion o f the Casey opinion striking down spousal notification, O'Connor had excoriated Alito's logic, approach, and conclusions. Famously, O'Connor had called Alito's view "repugnant to our present understanding o f marriage and o f the nature o f the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry."

Now that very judge was getting a promotion to O'Connor's own seat—and largely because Alito had proved his conservative bona fides in that very case. As one W h i t e House lawyer said o f the new nomi­ nee, "He was on the bench for fifteen years, and he never got a case wrong."

O'Connor had announced her resignation in J u l y o f 2 0 0 5 with every expectation that her replacement would be on the bench when the Court returned on the first Monday in October. Yet by Halloween, Bush was only then nominating another purported successor, with hearings and votes to follow over the next several months. O'Connor had genuinely hoped to be gone from the Court, but her protracted leave-taking did yield one side benefit—the chance to serve with J o h n Roberts.

O'Connor loved Roberts. More than most o f the justices, O'Connor

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cared about how the public regarded the Supreme Court, and she thought that Roberts's good looks and charisma projected exactly the right image. Once, during one o f the first arguments before the Roberts Court, a lightbulb exploded on the ceiling, prompting the court police to reach for their sidearms. "It's is a trick they play on new chief justices all the time," Roberts quipped, calming the courtroom. O'Connor told that story for weeks, as an example o f Roberts's charm. She even wrote a fawning, faintly embarrassing story about Roberts for Time magazine. ("The stars must have been aligned that January morning in 1 9 5 5 when J o h n G . Roberts J r . was born in Buffalo, N . Y . , because almost everything thereafter led him straight to the Supreme Court o f the U . S . " ) B u t O'Connor was hardly, as some thought, a starstruck schoolgirl. A t a meeting to plan a conference she was hosting, someone wondered i f the chief justice m i g h t be asked to attend. W i t h icy confidence, O'Connor said, "I'll take care o f J o h n Roberts."

For all o f O'Connor's fondness for Roberts, his appointment did not restrain the move to the left that characterized her jurisprudence and thus the Court's. Indeed, as Rehnquist and O'Connor prepared to leave, there was a quality o f a Prague Spring in the Court's deci­ sions—a last gasp o f liberalism before a likely surge to the right. A t the end o f his tenure, Rehnquist was never more beloved, but also never more irrelevant.

Take, for example, the chief's vaunted federalism revolution. After the justices struck down the federal law prohibiting the possession o f guns near schools in Lopez, Rehnquist had apparently revived the Commerce Clause as a meaningful check on Congress's authority to pass laws. T h e decision raised the possibility that the Court would really stop Congress from regulating local activity, something legisla­ tors had been doing without interference since the New Deal. In 2 0 0 5 , however, the justices took up a challenge to a California law that allowed state residents, with a doctor's prescription, to cultivate and use marijuana. A woman named Angel McClary Raich challenged the federal law prohibiting possession o f marijuana, arguing that Congress, under the Commerce Clause, could not prohibit the purely private, noncommercial transactions covered by the law.

In Gonzales v. Raich, six justices, including Kennedy and Scalia, said that Congress could indeed prohibit private, doctor-authorized pot farming. Stevens, writing almost as i f the Court had never issued the Lopez opinion, gave nearly unlimited scope to congressional power un-

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der the Commerce Clause. Relying on the same New Deal cases that Rehnquist had scorned in Lopez, Stevens wrote that Congress may reg­ ulate "purely intrastate activity that is not itself 'commercial' " i f to do so is necessary to regulate interstate commodity markets. T h e federal government can regulate the activity o f one individual if, when aggre­ gated together with those o f all similarly situated people, that person's activity will have a "substantial effect" on interstate commerce. "That the regulation ensnares some purely intrastate activity"—such as the personal possession o f marijuana for medical use—"is o f no moment," Stevens explained.

Because nearly every kind o f private economic activity, no matter how minor, could impact interstate commerce i f aggregated nation­ wide, Stevens's decision meant that Congress could regulate virtually everything. T h e p r e - 1 9 9 5 status quo had returned. Again, Stevens's patience during his long tenure had paid off with a thoroughgoing vindication o f his views. Rehnquist could only join a forlorn protest in dissent.

I t wasn't just the conservative federalism revolution that sputtered in 2 0 0 5 ; that year Kennedy invoked foreign law to strike down the death penalty for juvenile offenders. And these decisions followed the Court's rejection o f the administration's position on Guantânamo Bay and O'Connor's endorsement o f affirmative action at the University o f Michigan Law School. B u t it was perhaps the most controversial pair o f cases from 2 0 0 5 that underlined which remaining justice had the most to lose from O'Connor's departure from the Court.

O n the morning that O'Connor resigned, Stephen Breyer heard the news on National Public Radio. T h e two had become so close that it hurt Breyer's feelings a little that she gave him no advance notice. Typically, O'Connor just attributed her secrecy to common sense; she didn't want to place any o f her colleagues in an awkward position i f they were asked about her plans. B u t her alliance with Breyer had only grown stronger over t i m e . In some cases it was hard to tell which one o f them represented the Court's swing vote.

Few justices took to the work o f the Supreme Court with greater ease or enthusiasm than Breyer. His intelligence had never been in doubt, but when Clinton appointed him in 1 9 9 4 , Breyer had little ex-

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perience in the grist o f Supreme Court work—constitutional law. H e was a problem solver, a technocrat, an antitrust and administrative law expert, the author o f the federal sentencing guidelines. H e was not someone who had given much thought to the majestic generali­ ties o f the Constitution. B u t in 2 0 0 5 , he did something that no jus­ tice had attempted in several generations—to write his own manifesto on the meaning o f the Constitution. Characteristically, Breyer's book, Active Liberty, was hardly an airy philosophical treatise but a practical book by a practical man. "Our constitutional history," he wrote, "has been a quest for workable government, workable dem­ ocratic government, workable democratic government protective o f individual personal liberty." N o word better suited Breyer's approach than workable.

In part, Breyer wrote Active Liberty to challenge Scalia's doctrine o f originalism. Like many other critics o f Scalia, Breyer pointed out there was no way o f knowing precisely what the framers meant by such phrases as freedom of speech or due process of law, much less how they would have applied those terms today. Scalia and Thomas's approach, Breyer wrote has, "a tendency to undermine the Constitution's efforts to create a framework for democratic government—a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively." That was what Breyer meant by "active liberty"—a Constitution that not only protected citizens from government coercion but affirmatively gave power to citizens themselves to participate. Government existed to give everyone an equal chance to join in the political process.

Breyer had the opportunity to put that theory into action in the two Ten Commandments cases o f 2 0 0 5 . There, civil liberties advocates challenged, as violations o f the Establishment Clause o f the First Amendment, two public displays o f the commandments, one in a pair o f Kentucky courthouses, the other on the grounds o f the Texas state capitol. Four justices (Stevens, O'Connor, Souter, and Ginsburg) re­ jected both states' displays as violations of the Constitution's separation of church and state; four others (Rehnquist, Scalia, Kennedy, and Thomas) approved both states' displays. Only Breyer, the swing vote in both cases, saw a difference between the two: he rejected the display in the Kentucky courthouses and upheld the one in the Texas park.

Breyer's seemingly inconsistent positions drew some ridicule, but they illustrated his pragmatic, and almost overtly political, approach

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to judging. In his opinion concurring in the judgment in the Texas case, Van Orden v. Perry, Breyer noted that there was "no single me­ chanical formula that can accurately draw the constitutional line in every case," and he proceeded to compare the history o f the displays. T h e Texas commandments, which are carved into a granite monu­ ment, had been donated to the state by the Fraternal Order o f Eagles, a private civic (and primarily secular) organization, in 1 9 6 1 . (The commandments were originally posted in many places around the country to generate publicity for Cecil B . DeMille's 1 9 5 6 movie, The Ten Commandments.) Most important, Breyer argued, no one had complained about the structure, which was situated for decades among sixteen other monuments and twenty-one historical markers. Indeed, the plaintiff in the case was actually a homeless person who spent more time lingering in the park, reading the inscriptions, than most other people. "Those forty years suggest more strongly than can any set o f formulaic tests that few individuals, whatever their system o f beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect," Breyer wrote.

B y contrast, the displays in the Kentucky case, McCreary County v. American Civil Liberties Union, had been placed on the walls o f small courthouses by local officials, accompanied in one case by a Christian minister, in 1 9 9 9 and had immediately become objects o f controversy. In his opinion in the Texas case, Breyer wrote, "The short (and stormy) history o f the [ K e n t u c k y ] courthouse commandments' dis­ plays demonstrates the substantially religious objectives o f those who mounted them." (For example, the display noted that the posted com­ mandments came from the " K i n g J a m e s Version.")

Breyer's controlling opinions in the cases told politicians to stop erecting provocative religious monuments, with the understanding that old ones could stay. As a political compromise, i f not constitu­ tional jurisprudence, it made total sense. O'Connor did not join Breyer in both cases; she actually voted to his left, arguing that both displays should be removed. B u t Breyer's split-the-difference ap­ proach reflected her influence. So, too, did Breyer's wish to diffuse conflict; few people m i g h t have known the Ten Commandments were in the Austin park before the lawsuit, but a Court-ordered removal would surely have turned into an ugly drama. As Breyer put it, re­ moving uncontroversial displays like the one in Texas could "create

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Visitors to Breyer's chambers at the Court m i g h t assume that the rows o f venerable leather-bound books in the shelves behind his desk came from his wife's aristocratic family in Great Britain. T h e i r home in Cambridge is full o f heirlooms from the stately home o f the 1st Viscount Blakenham. B u t the books were collected by Breyer's late uncle Leo Roberts, an eccentric philosopher and freelance academic who haunted used-book sales. Young Stephen and his uncle would sometimes rise at dawn to get first crack at the sales, where they rarely paid more than a dollar a book. And there were ultimately thousands of books, which Breyer, with just the exceptions in his chambers, do­ nated to the University o f Massachusetts in Boston after Roberts died.

Breyer's demeanor, as well as his jurisprudence, reflected both his patrician in-laws and his own J e w i s h parents. H e sometimes lapsed into what sounded like an English accent, and one o f his daughters became, o f all things, an Episcopal priest. B u t Breyer's reluctance to stir up religious animosity was strictly urban pol in origin. From his parents and their experience in San Francisco politics, he learned the dangers o f religious conflict, even in the United States, and he saw the Constitution as the vehicle to keep ecumenical passions in check. A natural conciliator, Breyer liked nothing less than picking unneces­ sary fights.

And that spirit, in 2 0 0 5 , gave Breyer something close to control o f the Court. O f all the justices, he cast the fewest dissenting votes that term, ten, just behind O'Connor's eleven. He brokered an extraordi­ nary compromise in a series o f complex cases reviewing the federal sentencing guidelines that he, as an appeals court judge, had played a major role in creating. After years o f hotly contested cases on the sub­ ject, the result was that the guidelines would be advisory rather than mandatory, which was what Breyer had sought all along. H e con­ trolled the outcome o f the Ten Commandments cases, voted with Kennedy on the juvenile death penalty, and even joined an unusual majority in the most enjoyable case o f the year. In May, the Court ruled 5 - 4 that states could not permit in-state wineries to ship to consumers while prohibiting out-of-state producers from doing the

the very kind o f religiously based divisiveness that the Establishment Clause seeks to avoid."

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same thing. T h e pro-wine majority consisted o f Kennedy, the author o f the opinion, Scalia, Souter, Ginsburg, and Breyer—who all hap­ pened to be the leading wine aficionados on the Court. Breyer later called the group "the rosy-cheeked caucus."

T h i s long run o f success was why Breyer despaired at the other big case that came down at the end o f the same term. In 1 9 9 8 , Pfizer had announced plans to build a research facility in New London, Connecticut; the city intended to spruce up the surrounding neigh­ borhood. As part o f the development, New London used its power o f eminent domain to take the homes o f several residents and turn them over to private developers for a shopping center or perhaps a parking lot. Susette K e l o and several o f her neighbors sued, claiming that the city was violating the Fifth Amendment, which says that "private property {shall not] be taken for public use, without just compensa­ tion." A city could take land for a highway, school, or hospital, the plaintiffs claimed, but the transfer o f private property from one pri­ vate entity to another did not amount to a public use.

W h e n Kelo v. City of New London was argued back in February 2 0 0 5 , the case drew relatively little attention. Even to the justices, the mat­ ter seemed to be a fairly esoteric dispute over a familiar part o f the Constitution. T h e Court had found previously that government could use eminent domain powers to transfer land to private parties—to railroads, for example—and the question here was simply whether an urban redevelopment plan qualified as a public use. It hardly seemed the stuff o f high drama, and at the end o f the term, Stevens wrote a straightforward opinion for a five-justice majority (including Kennedy, Souter, Ginsburg, and Breyer) approving what the city had done. Stevens styled his opinion as an exercise in judicial restraint, as he deferred to the local elected officials about what constituted a pub­ lic use. "Just as we decline to second-guess the City's considered judg­ ments about the efficacy o f its development plan, we also decline to second-guess the City's determinations as to what lands it needs to ac­ quire in order to effectuate the project," he wrote.

B u t the justices, especially Stevens, had misjudged the emotional resonance o f the subject. B y raising the possibility that a city could simply transfer a private home to another private owner, the case tapped into powerful fears o f unchecked government. O'Connor un­ derstood better than any o f her colleagues how the public would see the case and wrote in her dissent, "Under the banner o f economic de­ velopment, all private property is now vulnerable to being taken and

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transferred to another private owner, so long as it m i g h t be up­ graded—i.e., given to an owner who will use it in a way that the leg­ islature deems more beneficial to the public." (The case was one o f the few where O'Connor and Breyer parted company.) In any event, the Kelo decision set off a noisy backlash.

Overnight, it was as i f the Terri Schiavo chorus had reconvened. Rather than as a victory for judicial restraint, the conservative move­ ment treated Kelo as a triumph o f big government. Tom DeLay called it "a horrible decision," adding, "This Congress is not going to just sit by—idly sit by—and let an unaccountable judiciary make these kinds o f decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary." DeLay in the House and J o h n Cornyn in the Senate pushed measures to deny federal funds to any local project that would use eminent domain to force people to sell their property to make way for a profit-making venture. Ever alert for the chance to make a public splash, J a y Sekulow claimed implausibly that the Kelo decision m i g h t lead to government seizures o f church land—and added the case to his bill o f particulars against the Supreme Court.

T h e animosity toward the Court reached frenzied proportions. A conservative activist, Logan Darrow Clements, wrote to the govern­ ment o f Souter's hometown in New Hampshire asking that the town take over the justice's farm and turn it into the "Lost Liberty Hotel," featuring the "Just Desserts Café." "The justification for such an em­ inent domain action is that our hotel will better serve the public in­ terest as it will bring in economic development and higher tax revenue to Weare," wrote Clements. T h e following year, the matter even came up for a vote in Weare, with the town voting 1,167 to 4 9 3 to leave the Souter farm alone. (Even i f Souter had lost the vote, it was unlikely that his home would have been taken.) In more serious re­ sponses to the case, several states tightened requirements on the use o f eminent domain. (In a way, these actions vindicated Stevens, who wrote that while the Constitution allowed such uses o f eminent do­ main, states were, o f course, free to restrict the practice.)

Breyer despaired at the drubbing the Court was taking. He took every opportunity to point out that the decision did not order any lo­ cal government to buy land but merely permitted the practice under limited circumstances. T h e complaints should have gone to the ini­ tiators o f such seizures, not the justices. In truth, the controversy was stoked by conservatives precisely because it took place at the same

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time as the confirmation fights. T h e cause united social and economic conservatives against a "liberal" Supreme Court. As Sean Rushton, the executive director o f the Committee for J u s t i c e — B o y d e n Gray's orga­ nization, dedicated to pushing Bush's judicial nominees—said of the Kelo decision, "It's so bad, it's good."

W h e n Roberts began his first term, with O'Connor still on the bench, the Court enjoyed a docket full o f relatively uncontroversial cases. In addition, the new c h i e f justice made a point o f pushing his colleagues toward narrow decisions that could command unanimous support. In a speech at Georgetown, he made the case for this judicial minimal­ ism, asserting, "The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds." For a time, the justices indulged the chief's wishes, and the percentage o f unanimous cases ticked upward. In conference, Roberts let discus­ sions linger for longer than Rehnquist had, and the additional conver­ sation encouraged the justices to absorb the views o f their colleagues and write opinions accordingly. Roberts's buoyant good nature, and the end to the grim vigil over Rehnquist's health, immediately made the Court a cheerier place.

Roberts also proved himself a skillful judicial craftsman. His first important opinion touched on gay rights, academic freedom, and the power o f the military—and still produced a unanimous Court. T h e case also revealed the deep cleavages in the legal profession between the liberal faculties o f leading law schools and the conservative ma­ jorities in Congress. After the fights early in the Clinton administra­ tion over gays in the military, most leading law schools banned military recruiters on campus because the armed services refused to hire openly gay people and thus violated the schools' nondiscrimina­ tion policies. (Many o f the faculty votes for the bans were unanimous, suggesting an extraordinary level o f political conformism.) Enraged at these snubs to the military, conservatives in Congress responded by passing the Solomon Amendment, which cut off all federal funds to universities that did not allow equal access to recruiters from the armed forces. At many universities, the amendment put tens o f mil­ lions o f dollars in federal medical research money at risk, so law school faculty members sued, arguing that the law violated their rights to free speech under the First Amendment.

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In an opinion by Roberts, the Court unanimously upheld the Solomon Amendment and rejected the claim by the law professors. In short, Roberts said that he who pays the piper calls the tune. "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obli­ gated to accept," he wrote. T h e case had nothing to do with free speech, he continued, arguing that the Solomon Amendment "neither limits what law schools may say nor requires them to say any­ thing. . . . As a general matter, the Solomon Amendment regulates conduct, not speech." In this way, Roberts diffused a potentially in­ cendiary controversy.

The same was true for his first encounter with abortion. In 2 0 0 3 , New Hampshire passed a law prohibiting physicians from perform­ ing an abortion on a minor without giving one o f her parents at least forty-eight hours' notice. Physicians could dispense with the notifica­ tion requirement i f they could certify that the abortion was "necessary to prevent the minor's death." T h e main issue in the case was whether the state also had to establish an exception to the notice requirement i f the minor's health was at risk. For decades, the Court had insisted on "health" exceptions in abortion laws, and for just as long, abortion opponents had argued that such exceptions were so broad that they amounted to no restriction at all. T h e case concerned a fairly narrow corner o f the law, but there is no such thing as an unimportant abor­ tion ruling at the Supreme Court, and the case seemed likely to offer the first clues as to how the Roberts Court would deal with the most fraught topic on its agenda.

B u t Roberts, with the unanimous agreement o f his colleagues, managed to avoid a major confrontation. T h e lower courts had inval­ idated the entire New Hampshire law when they could have just eval­ uated the contested portion; the justices thus resolved the case on procedural grounds, sending it back for further review (and, perhaps, some sort o f compromise settlement). This kind o f opinion—avoid­ ing a hot controversy i f at all possible—was a classic O'Connor strat­ egy, and it was fitting that Roberts assigned her the opinion.

Ayotte v. Planned Parenthood of Northern New England would be the final majority opinion o f Sandra O'Connor's quarter century as a jus­ tice—and an apt summary o f her extraordinary influence on the Court and the nation. " W e do not revisit our abortion precedents today," she began, but she did take the time to offer a summary o f that law. "We have long upheld state parental involvement statutes like the Act be-

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fore us, and we cast no doubt on those holdings today," she wrote. As for laws regulating abortions themselves, O'Connor said that they were to be tested under the "undue burden standard." She went on, "New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are 'necessary, in appro­ priate medical judgment, for preservation o f the life or health o f the mother.' " T h e internal quotation came from the Casey decision, which was in turn quoting Roe v. Wade.

T h e dry legal language obscured that this brief opinion amounted to a story o f remarkable personal triumph for O'Connor. Like most other Americans, O'Connor believed in parental notification laws. Like most others, she also believed that not all abortions should be banned. And she thought, again like most o f her fellow citizens, that abortion restrictions should not risk "the life or health o f the mother." W h e n she joined the Court in 1 9 8 1 , not one other justice believed that abortion laws should be tested under an "undue burden stan­ dard," but O'Connor had invented that test and over time persuaded a majority o f her colleagues to agree with her. She had single- handedly remade the law in the most controversial area o f Supreme Court jurisprudence. And she had done it in a way that both reflected and satisfied the wishes o f most Americans. N o other woman in United States history, and very few men, made such an enormous im­ pact on their country.

O'Connor read Ayotte from the bench on January 1 8 , 2 0 0 6 . B y that point, though, the longevity o f her influence seemed ever more open to question.

2 4

The lawyers in the Bush W h i t e House who researched possi­ble nominees to the Supreme Court operated according to strict rules. Because they did not want the nature o f their in­ quiries to be widely known—and because they had so many people to investigate—they examined only the public record. For sitting judges, they looked primarily at their published opinions and also ran the candidates' names through databases like Nexis and Google. T h e small group o f associate counsels did not, however, have the time or resources to search through the National Archives, so it was journal­ ists who discovered the key document about Samuel Alito, two weeks after Bush announced his selection.

Alito had joined the staff o f the solicitor general as a career lawyer in 1 9 8 1 , but he quickly established himself as an enthusiastic sup­ porter o f the Reagan administration. In time, he sought to move up to a position as deputy assistant attorney general in the Office o f Legal Counsel, the official constitutional adviser to the president and the unofficial ideological command center during the Reagan years. T h e job was a political appointment, so Alito had to be vetted by the W h i t e House. T h e application letter that Alito wrote for the job, the document found in the archives, proved to be an easy-to-decipher Rosetta Stone about his political and judicial philosophy.

Alito's letter o f November 1 5 , 1 9 8 5 , began, "I am and always have been a conservative," and removed any mystery about the kind o f jus­ tice he would be. B u t the treatment of Alito's letter in his confirmation hearings illustrated other truths about the contemporary confirmation process, the difference between Democrats and Republicans, and the future o f the Court.

'T AM AND ALWAYS HAVE BEEN . . . "

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W h e n Roberts testified at his own hearing, he was asked about his au­ thorship o f the brief advocating the reversal o f Roe v. Wade. The future c h i e f justice parried the inquiry, noting that he was then a lawyer rep­ resenting a client, President George H. W Bush, whose opposition to Roe was a matter o f public record. Roberts asserted that the position in the brief did not necessarily reflect his own views about Roe, which he declined to reveal. A l i t o , in contrast, had written in his 1 9 8 5 applica­ tion that "it has been an honor and a source o f personal satisfaction to me to serve in the office o f the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud o f my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

So there was no mystery about Alito's personal beliefs. Indeed, the letter showed that his judicial philosophy, at least in 1 9 8 5 , was well to the right o f where, say, even Rehnquist was in 2 0 0 5 . Alito had also written, "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas o f criminal procedure, the Establishment Clause, and reapportionment." T h e major Warren Court decisions in these subjects were those creating the Miranda warning, banning government-sponsored prayer in schools, and calling for one person, one vote in legislative districting. Even conservatives like Rehnquist came to terms with these rulings, but such was Alito's passion for the conservative cause in the Reagan years that he apparently found them too liberal. As a lower court judge for the past fifteen years, Alito had no right to overturn these precedents, but he gave every indication that he would i f he could.

Despite Alito's potentially extreme views, simple arithmetic made his confirmation nearly a foregone conclusion. As soon as he was nom­ inated, it became clear that he would survive the most important test for any Bush nominee to the Court—what m i g h t be called the Republican primary, that is, the approval o f the conservative base.

T h e full Senate, by comparison, would be easy for Alito. There were fifty-five Republicans, and all but a handful—Lincoln Chafee o f

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Rhode Island, and Susan Collins and Olympia Snowe o f M a i n e — would be certain to vote for a true conservative like him. (A moder­ ate in other circumstances, Arlen Specter could not oppose a Bush nominee to the Supreme Court and keep his beloved chairmanship o f the Judiciary Committee.) From the moment o f Alito's nomination, the only hope for Democrats to stop his confirmation would be to es­ tablish and hold a filibuster o f forty or more senators.

N o Supreme Court nominee in history who had the support o f a majority o f senators had ever been stopped by a filibuster. (In 1 9 6 8 , there was a filibuster against Lyndon Johnson's nomination o f Abe Fortas to be chief justice, but it was not clear that Fortas had the votes to be confirmed.) So a Democratic filibuster against Alito was un­ likely, and i f one had been attempted, it m i g h t have led to the elim­ ination o f the tactic for good. In advance o f the debate, B i l l Frist, the majority leader, was clearly itching for a fight so that he could invoke the "nuclear option" and do away with filibusters on judicial nomi­ nees once and for all. Such a move would have ingratiated Frist with the Republican base, whose support the Tennessee senator was then courting for a possible presidential run in 2 0 0 8 . (He later declined to run.) In short, the odds were always stacked against a Democratic at­ tempt to stop Alito's confirmation; there were simply too many votes on the other side.

Still, the reaction to his nomination among Democrats showed just how much times had changed since the Bork hearings. It was only a year since Specter thought the conventional wisdom was that nobody could be confirmed unless he or she supported Roe v. Wade. Samuel Alito and the Republican Senate were about to provide a specific refutation.

The Democratic Party had a base, too, and the pro—abortion rights position was just as important to these activists as the opposing view was to the conservatives. W h e n it came to judicial nominations, the liberal position was embodied by People for the American Way, a well-funded, politically savvy advocacy group founded by Norman Lear, the television producer, and led by Ralph G . Neas, an architect o f Bork's defeat in 1 9 8 7 . P F A W had a membership list o f 7 5 0 , 0 0 0 ac­ tivists, and as soon as A l i t o was nominated, Neas set out to mobilize them against a man he called the embodiment o f "the radical right le-

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gal movement." Certain that Alito would lead the fight to overturn Roe and a host o f other civil rights rulings, Neas insisted that he had to be stopped.

Neas's protest drew a tepid response. Unlike Miers, Alito had a network o f friends and former law clerks (some o f them Democrats) who knew him well and were only too happy to give public testimo­ nials in his behalf. In addition, Alito's impeccable credentials—from his sterling academic record to fifteen years on the federal appellate bench—made it impossible for anyone to oppose him on the ground o f his qualifications. (The American Bar Association screening panel unanimously found Alito "well-qualified.") T h e only reason to vote against him—and it was the focus o f PFAW's effort—was that he was simply too conservative and would vote to overturn Roe v. Wade. B u t on this point the difference between the parties was manifest.

T h e Democratic base did not control its members the way the con­ servatives controlled the G O P . Moderate Democrats tended toward the center and so were unwilling to take up a filibuster. Alito's han­ dlers in the W h i t e House immediately sent him to meet with mem­ bers o f the Gang o f 1 4 , and the visits had the desired effect. Moderate Democrats like B e n Nelson o f Nebraska responded to Alito neutrally to positively, and Republicans like M i k e D e W i n e o f Ohio and Lindsey Graham o f South Carolina said they would invoke the nuclear option i f the Democrats tried to filibuster. As D e W i n e observed accu­ rately, "This nominee should not have shocked anyone. George Bush won the election." B y the time Alito's public testimony began on January 9 , 2 0 0 6 , the possibility o f a filibuster had faded; his confir­ mation appeared all but assured.

"During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I m i g h t begin this afternoon by sharing that story," Alito said when he first addressed the senators. "The story goes as follows. This was a lawyer who had never argued a case before the Court before. And when the argument began, one o f the justices said, 'How did you get here?' meaning how had his case worked its way up through the court system. B u t the lawyer was rather nervous and he took the question literally and he said—and this was some years ago—he said, T came here on the Baltimore and O h i o Railroad.' T h i s story has come to my

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mind in recent weeks because I have often asked myself, 'How in the world did I get here?' " T h i s leaden tale, which was greeted with mys­ tified stares, turned out to be a fair augury o f the testimony that fol­ lowed. Alito was a dreadful witness in his own behalf—charmless, evasive, and unpersuasive.

In response to questions about his 1 9 8 5 job application, Alito es­ sentially dismissed the document. " W h e n someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues," he said. As for his current feelings about Roe, "I would approach that question the way I approach every legal is­ sue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good de­ cision making." Alito repeatedly declined to express a view about whether Roe should be overturned. T h u s , under the peculiar standards of contemporary political discourse, all eighteen members o f the Senate Judiciary Committee were expected to—and did—take a stand on Roe during their campaigns; but the only people who actually have a say on Roe, future justices, were allowed to refuse to answer.

Alito's hearing came shortly after the New York Times disclosed that the Bush administration engaged in extensive warrantless wiretap­ ping of phone calls to or from outside the United States. Going back to the Reagan years, Alito's record suggested that he took an expan­ sive view o f executive power, though, characteristically, he declined to say much on the subject during the hearings. H e did disown one sen­ tence in the 1 9 8 5 job application, when he said, "I believe very strongly in the supremacy o f the elected branches o f government." That was a "very inapt phrase," Alito asserted, because he actually be­ lieved in three equal branches. In almost his only substantive answer, Alito added, "I don't think that we should look to foreign law to in­ terpret our own Constitution"—evidence o f how much Kennedy's crusade on the subject had alienated conservatives. (Roberts had ex­ pressed a similar sentiment in his hearings.)

Bad as Alito's performance was, that o f his Democratic inquisitors was worse. Joseph Biden o f Delaware resembled a parody o f a blovi­ ating politician, talking for twenty-four o f the thirty minutes alloted for his initial questions. Ted Kennedy, the Massachusetts veteran o f nineteen Supreme Court confirmation hearings, peppered Alito with a long series o f manifestly unfair questions about his participation in

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a case involving the Vanguard mutual funds, in which the judge had invested. (Alito recognized his error and promptly recused himself in a case o f such minor significance that it could not have affected his own portfolio.) Kennedy did annoy Alito by asking him about his membership in a group called Concerned Alumni o f Princeton, which had conducted distasteful protests about coeducation and affirmative action at the college. B u t Alito's role in the group was minor, and he diffused the issue by saying he was merely supporting the return of R O T C to the Princeton campus. Other Democratic senators made halfhearted attempts to engage the nominee on such varied issues as separations o f powers, the environment, and law enforcement. Alito dodged with impunity.

In a crowning absurdity, on the third and next-to-last day o f Alito's testimony, Lindsey Graham decided to make a theatrical rush to the nominee's defense. Graham mocked Kennedy's line o f attack and asked i f Alito was a "closet bigot," then expressed sorrow that Alito's family "had to sit here and listen to this." A moment later, Alito's wife, Martha-Ann, burst into tears and rushed from the committee room. Her reaction was certainly peculiar, since it came during Graham's ostentatiously sympathetic questioning. Even though there was no reason to think she staged an onset o f the vapors, the day's news focused on her tears, much to the nominee's benefit. Any mo­ mentum in the Democrats' direction disappeared.

T h e final vote in the committee, held on January 2 4 , went along party lines, 1 0 - 8 for Alito's confirmation. Senator J o h n Kerry called for a filibuster against Alito, but he did so while on his trip to Davos, Switzerland, signaling a somewhat less than intense focus on the Supreme Court vote. (In a deft bit o f mockery, Republicans assailed Kerry for politicking from a ski resort.) Few o f Kerry's colleagues joined his call to arms. W h e n the time came for a vote on the Senate floor, on January 3 1 , Alito's opponents mustered forty-two votes against him—more than the forty needed for a filibuster. B u t many o f the senators voting no made clear that they would not support a fili­ buster, so the fifty-eight votes in Alito's favor amounted to a comfort­ able margin of victory.

Alito joined the Court almost four months to the day after Roberts, and the two o f them struggled to keep up with the sudden onslaught

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o f cert petitions and oral arguments. T h e i r distinct coping mecha­ nisms reflected the modest but real differences between them. Roberts immediately endeared himself to the loyal and long-serving Supreme Court staff by keeping on Rehnquist's secretaries and some o f his law clerks; he brought others with him from the D . C . Circuit. In recent years, some o f the conservative justices on the Court had begun hir­ ing slightly older law clerks who had both completed the customary appellate clerkships and spent some time in the Bush J u s t i c e D e ­ partment. Alito took this practice to an extreme, hiring as his first clerk Adam Ciongoli, a thirty-seven-year-old senior vice president o f Time Warner who had recently completed a two-year stint as one o f J o h n Ashcroft's closest aides. It is easy to overstate the importance o f law clerks, but the appointment o f Ciongoli, who had clerked for Alito a decade earlier on the Third Circuit, suggested a closer than usual tie between the new justice and the administration. In any event, the fortuitous absence o f blockbuster cases in the first few months o f the Roberts Court allowed the justices to become accli­ mated to their new surroundings.

Curiously, the person most affected by the two appointments ap­ peared to be Scalia, who had just turned seventy. In public, Scalia had joked about the possibility o f becoming chief justice, but the recog­ nition that his career had reached a final plateau seems to have encour­ aged him to shed his inhibitions. For all his theatrics in oral arguments and the panache o f his dissenting opinions, Scalia simply did not love the job as much as his colleagues did. As far back as 1 9 9 6 , he had written to Harry Blackmun, "I am more discouraged this year than I have been at the end o f any o f my previous nine terms up here. I am beginning to repeat myself, and don't see much use in it anymore." Ten years later, Scalia was still repeating himself, and he was bored.

It should have been a glorious time for Scalia, with two new like- minded justices joining the Court. B u t as Scalia contemplated his twentieth anniversary on the bench, his legacy looked modest. Although his famous dissents often produced admiring chuckles among his readers, the dissents only rarely become law. In two decades on a generally conservative Court, his number o f important majority opinions was almost shockingly small; asked at a public fo­ rum his favorite o f his opinions—a common question for the justices in such settings—he came up with an esoteric case interpreting the Confrontation Clause o f the Sixth Amendment.

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N o r did Scalia have much influence on his colleagues. Most fa­ mously, from the beginning o f his tenure, Scalia had actively repelled O'Connor, pushing her toward her moderate, swing role. He had a similar effect on Kennedy. Even Thomas had long since passed Scalia, en route to a kind o f nineteenth-century conservatism.

And the two new justices, though they almost always voted with Scalia in their early days on the bench, seemed to be cutting indepen­ dent paths. In his confirmation hearing, Roberts issued a nearly Breyer-style denunciation o f Scalia's originalism, saying, "I think the framers, when they used broad language like liberty,' like 'due process,' like 'unreasonable' with respect to search and seizures, they were crafting a document that they intended to apply in a meaning­ ful way down the ages." Moreover, Roberts's much-advertised mini­ malism clashed with Scalia's more sweeping approach to writing opinions. As part o f his "textualism," Scalia shunned any reference to the legislative history o f laws, preferring to interpret only the actual words o f a statute rather than the congressional debates leading to a law's passage. B u t in one o f his very first opinions, Alito did cite leg­ islative history, and Scalia, as he always did, dissociated himself from the reference.

Outside o f the Court, Scalia's frustration manifested itself in juve­ nile petulance. Few on the Court traveled as much as he did, and no one more enjoyed mixing it up with critical audiences. These con­ frontations did not always bring out the best in the justice. He called those who did not share his originalist approach "idiots"; he invited those disappointed with the result o f Bush v. Gore to "get over it"; he called the international constitutional courts in Europe "the mullahs o f the West." In one episode, on March 2 6 , 2 0 0 6 , at a church in Boston, a reporter shouted a question to him about his religious be­ liefs. "You know what I say to those people?" he replied, and then flicked his fingers under his chin at the questioner. "That's Sicilian," he explained. T h e next day, the Boston Herald wrote that Scalia had made an "obscene" gesture. Two days later, Scalia wrote a letter to the editor o f the paper that read in part:

It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture— inside Holy Cross Cathedral, no less. T h e story is false, and I ask that you publish this letter in full to set the record straight.

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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 o f fanning the fingers o f 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 o f the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini's T h e Italians: "The extended fingers o f one hand moving slowly back and forth under the raised chin means: 1 couldn't care less. It's no business o f 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 o f 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 o f élan and erudition. H e was a justly popular public speaker. B u t 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 o f the fortuitously timed decision that convinced D i c k Cheney to support Roberts for c h i e f justice. Once again, the justices would turn to the prisoners o f Guantanamo Bay.

Few cases had a more unlikely journey to the Supreme Court than Hamdan v. Rumsfeld. T h e primary instigators o f the lawsuit were a small group o f military lawyers who, at great risk to their careers, agreed to represent the detainees at Guantanamo. These lawyers, led by W i l l Gunn o f the Air Force and Charles Swift o f the Navy, proved to be dogged, i f overmatched, in repeatedly challenging the actions o f

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their superiors in the Department o f Defense. For help, they turned to a thirty-three-year-old law professor at Georgetown, Neal Katyal, who had served briefly in the Clinton J u s t i c e Department after finish­ ing a clerkship with Breyer. W i t h minimal assistance and vastly more experienced adversaries, Katyal constructed a legal assault on the Bush administration's legal position that changed constitutional his­ tory.

In 2 0 0 4 , when the justices had first contemplated the case o f the prisoners in Cuba, the Bush administration had argued that the case should have been thrown out forthwith, that the detainees were sim­ ply outside the reach o f the American legal system, with no rights even to bring a case. T h e 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 administra­ tion had unilaterally set up a system for allowing the detainees to challenge their incarcerations in abbreviated trials known as commis­ sions. I t 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 battle­ fields o f Afghanistan, Salim Ahmed Hamdan, who was accused o f be­ ing Osama bin Laden's driver but not a terrorist or even a fighter.

T h e young professor had one important advantage in the argument on Tuesday morning, March 2 8 — t h e extremism o f 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 o f September 1 1 , Congress had implicitly sus­ pended the writ o f 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 o f the United States can take?" he asked. "And, there­ fore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

W e l l , Clement replied, i f 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!" B u t in a Supreme Court without O'Connor, Hamdan would be a

breathless wait to see which way Anthony Kennedy was going to

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vote. Scalia, Thomas, and Alito were likely allies o f the administra­ tion; 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.)

T h e 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 2 0 0 6 , for a round-the-world tour: Washington to Hawaii, for a speech before the American B a r Association; to Malaysia, to meet with the sultan, who was also a judge; on to Dubai for a conference o f four hundred judges; and then to the Old Bailey, in London, where he would observe a murder trial; and finally back to Washington. T h e heart o f the Bush administration's argument before the Court in Hamdan was that the Geneva Conventions—the treaty that is at the core o f international law and that the United States had long ago signed—did not apply to the prisoners at Guantanamo.

"Well, let me put it this way," Kennedy said to Katyal. " I f we were to find that the Geneva Convention or other settled principles o f in­ ternational 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 Con­

vention or some other body o f international law controls . . . ?" Kennedy was tipping his hand. A t conference, he joined the four

liberals in striking down the Bush plans for Guantanamo—again. Stevens's opinion for the Court, issued on J u n e 2 9 , the last day o f the term, amounted to an even more thorough rebuke to the adminis­ tration than the Court had issued two years earlier. T h e Pentagon could not write procedures for the military commissions unilaterally; Congress had to approve them as well. T h e Pentagon could not ignore the Geneva Conventions; the procedures had to comport with the treaty. T h e 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. W r i t i n g in his usual restrained style, Stevens made clear that he and his colleagues regarded the Bush position as something close to lawless. T h e 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 in­ dispensable by civilized peoples.' "

T h e dissenters replied with rhetoric that reflected the Republican

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political campaigns o f 2 0 0 2 , 2 0 0 4 , and 2 0 0 6 . Thomas said the deci­ sion would "sorely hamper the President's ability to confront and de­ feat a new and deadly enemy," and suggested that it undermined the nation's ability to "preven[t} future attacks." J o i n e d by Kennedy, Souter, and Ginsburg, Breyer issued an unusually pointed and elo­ quent reply in a concurring opinion in which he quoted the famous words o f his departed ally, O'Connor: "The Court's conclusion ulti­ mately 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 Guantânamo Bay faced the possibility of execution by their American captors. T h e lawsuit was about denning the meaning o f the Constitution in an age o f 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 abil­ ity to determine—through democratic means—how best to do so. T h e Constitution places its faith in those democratic means. Our Court today simply does the same."

25

PHANATICS?

For many years, the Court had a tradition o f holding a welcom­ing dinner for each new member, with the former junior jus­tice acting as host. T h e practice fell into disuse in recent years because there had been so little turnover among the justices. S t i l l , during the summer o f 2 0 0 6 , Breyer said he wanted to revive the cus­ tom and have a dinner for Alito. T h e permanent staff members o f 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.

O n Friday, October 6 , a small ensemble from the Marine Corps band greeted the justices and their spouses in the Great Hall o f the Court. It was on occasions like this one that the Court most felt like a family. Sandra and J o h n O'Connor were there, as were the widows o f 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. B u t I have to warn you about some­ thing. Everyone here tonight is very nice to you. B u t 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 o f the candelabras, the guests exchanged puzzled looks.

" W h a t you need here is a friend," Breyer went on. "You need some­ one who will stand by you—really stand by you, not like these peo­ ple 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

324 Jeffrey Toobin

Phillies jersey burst into the room. T h e Phillie Phanatic, mascot of Alito's beloved baseball team, lumbered over to Alito, gave him a pro­ longed embrace, and then left the room, leaving raucous laughter in its wake.

T h e welcoming dinner for Alito showed how the comradely spirit o f 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 deferen­ tial, Roberts controlled the mechanics o f the Court in the same even- handed 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 opin­ ion-writing duties in the same fair-minded way that Rehnquist had, distributing the "dogs" and significant cases in roughly even num­ bers. 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 o f the Court. In speeches, Roberts repeated his pleas for judicial minimalism—narrow decisions endorsed by clear majorities (or, better yet, unanimous agreement) o f the justices.

B u t the good cheer—and the promises o f incremental change— masked the truth about the Roberts Court on the only thing that mattered, the substance o f its decisions. George W. Bush's second term has been marked by a series o f 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. B u t one major and enduring project went according to plan: the transformation o f the Supreme Court. Quickly, almost instantly by the usual stately pace o f the justices, the Court in 2 0 0 6 and 2 0 0 7 be­ came 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 1 9 5 4 ; and even after the Court struck down the doctrine o f separate but equal, Kentucky officials, like so many around the nation, avoided

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complying with Brown and maintained separate schools for black and white students into the 1 9 7 0 s . B u t when the community finally de­ cided 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 o f issues in assigning children to schools. Student choice was the major factor, as was the presence o f siblings in a school, but race counted as well. Louisville managed en­ rollment so that each school had no less than 15 percent and no more than 5 0 percent black students. A group o f 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 o f Michigan Law School, the Louisville and Seattle school boards de­ cided that they wanted to foster diversity in their communities. And, like Michigan, the schools included race as one factor among several in selecting students. B u t the Supreme Court o f 2 0 0 6 and 2 0 0 7 was not the Supreme Court o f 2 0 0 3 . And the lawyers for the Louisville parents put the challenge to the justices in the most direct way. T h e 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, o f course, O'Connor could only watch what the Court would do to the precedents she had laid down. Her retire­ ment 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 J o h n O'Connor. Alzheimer's disease fol­ lows an unpredictable path, and J o h n deteriorated much faster than anyone had expected. B y 2 0 0 7 , 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, J u s t i c e O'Connor had not wanted to resign, but had done so to take care o f J o h n , and then suddenly there was noth­ ing she could do for him.

O'Connor responded in a characteristic manner—not with self-pity

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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 2 0 0 6 , 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 influ­ ence o f foreign courts throughout the Bush years. O'Connor's self- confidence was intact. A t a planning meeting for the Georgetown event, several people wondered whether the new chief justice might attend. "You just leave J o h n Roberts to me," O'Connor promised, and the new chief dutifully paid homage.

A t the same time O'Connor was planning the judicial indepen­ dence conference, she agreed to serve as a member o f the Iraq Study Group, the panel o f eminences, cochaired by J a m e s A. Baker I I I and Lee H . Hamilton, charged with plotting a new course for the war. Even though she had no direct experience in the military or diplo­ matic matters, O'Connor knew how to ask questions, and she played a key role in examining some o f the hundred or so witnesses the I S G consulted over almost six months. O'Connor's impatience and brisk efficiency became a source o f amusement to her nine fellow members. W h e n the photographer Annie Leibovitz came to one I S G 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.

T h e I S G report, which was released on December 6 , 2 0 0 6 , began by asserting, "The situation in Iraq is grave and deteriorating." O'Connor and her colleagues called for a new, largely diplomatic ap­ proach, leading to a gradual withdrawal o f American military forces. President Bush ignored most o f the group's recommendations and in­ stead ordered a "surge" o f tens o f thousands more American troops.

As with so much o f the Bush presidency, O'Connor was appalled but not surprised by his rejection o f the core o f the I S G plan. Still, she was fatalistic, resigned to her limited role in events. A t the news con­ ference 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 o f our hands, having done what we did," O'Connor said. "It's up to you, frankly."

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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 o f case after case. During the Rehnquist years, O'Connor and Kennedy had had idiosyncratic enough views that it wasn't al­ ways clear whose vote would turn out to be dispositive. B u t 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 o f the j u d g e — and o f himself—as a figure o f drama and wisdom, more than any spe­ cific ideology. Kennedy believed that, at home and abroad, the rule o f law was protected by enlightened individuals as much as by any iden­ tifiable approach to the law. In his two decades on the Court, Kennedy had come to have a usually predictable, i f intellectually incoherent, collection o f views. H e believed what he believed, but it was hard to say why.

This was especially true on abortion. H e had been the key figure in the Casey decision o f 1 9 9 2 and the author o f the passages affirming the result in Roe v. Wade. (The opinion was jointly written with O'Connor and Souter, but only Kennedy's portion was written in his distinctive purple prose.) "The liberty o f the woman is at stake in a sense unique to the human condition and so unique to the law," he wrote. "Her suffering is too intimate and personal for the State to in­ sist, without more, upon its own vision o f the woman's role, however dominant that vision has been in the course o f our history and our cul­ ture. T h e destiny o f the woman must be shaped to a large extent on her own conception o f her spiritual imperatives and her place in soci­ ety."

Eight years after Casey, in 2 0 0 0 , Kennedy had changed his m i n d — dramatically. In Stenberg v. Carhart, Breyer had painstakingly demon­ strated that Nebraska's ban on so-called partial birth abortion had done just what Kennedy said a state could not do. B u t Kennedy wrote a theatrical dissent, asserting that "the political processes o f the State are not to be foreclosed from enacting laws to promote the life o f the unborn and to ensure respect for all human life and its potential."

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Adopting the language o f the antiabortion movement, Kennedy called the doctors who performed the procedure "abortionists" and claimed that "medical procedures must be governed by moral princi­ ples having their foundation in the intrinsic value o f human life, in­ cluding life o f the unborn." Kennedy's hymn to women's autonomy in 1 9 9 2 turned into a paean to the life o f the unborn in 2 0 0 0 .

After Bush's election, Congress and the president bet that Kennedy's view—not Breyer's—would ultimately hold sway at the Court. Congress passed a federal law that was nearly identical to the Nebraska statute struck down by Breyer's opinion. Like the one from Nebraska, the federal law banned the "partial birth" procedure, and it did not contain an exception that permitted the procedure to protect the health o f the mother. Every appeals court that evaluated the new law found it unconstitutional, relying on Breyer's Stenberg opinion and the absence o f a health exception. B u t it was the new Roberts Court that heard the appeal o f those decisions early in the 2 0 0 6 term. The result gave a hint o f what was to come.

Alito's replacement o f O'Connor flipped the result in the case, to a 5 - 4 ratification o f the federal abortion law. Roberts assigned the case to Kennedy, who essentially turned his Stenberg dissent into a major­ ity opinion—the sweetest kind o f vindication that a Supreme Court justice can enjoy. T h e Court in the new case, Gonzales v. Carhart, did not formally overrule Stenberg but did so effectively. Breyer's opin­ ion—and the requirement that abortion prohibitions contain excep­ tions to protect the health o f the woman—were now obsolete. As always, Kennedy had to turn the attention on himself; in his view, his ruling was not simply a ratification o f an act o f Congress but rather his gift to women as well. " W h i l e we find no reliable data to measure the phenomenon," Kennedy wrote, "it seems unexceptionable to con­ clude some women come to regret their choice to abort the infant life they once created and sustained." Small wonder that Kennedy found no such data, because, notwithstanding the claims o f the antiabortion movement, no scientifically respectable support existed for this pa­ tronizing notion. Notably, too, foreign law (which had often pushed Kennedy to the left) was generally more restrictive o f abortion rights than that o f the U n i t e d States, so on this subject, unlike gay rights or the death penalty, Kennedy mostly received reinforcement from his colleagues abroad.

Given Kennedy's and Alito's well-known views on abortion, no student o f the Court could be surprised at the result in the case. Still,

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the expansiveness o f Kennedy's opinion (with its dismissive acknowl­ edgments o f the Roe and Casey precedents) left the four liberals on the Court shocked. And the year had just started.

In his confirmation hearing, Roberts had suggested the Court could increase the number o f cases it heard, but the justices' schedule in the fall of 2 0 0 6 set them on pace to issue embarrassingly few opinions. Fearing criticism for their languid ways, the justices quickly filled their calendar for the set o f arguments that began in January 2 0 0 7 . The year would still yield only sixty-eight decisions, a record low for the Court in modern times, but the back-loaded schedule made for a hectic spring. Indeed, the decisions came so fast that it took a while for even the justices themselves to recognize what was going on.

Ginsburg saw it first. Shy, awkward, isolated from her colleagues in her second-floor chambers, Ginsburg had never been a center o f influ­ ence at the Court. She lacked Stevens's seniority, Breyer's bonhomie, Scalia's bombast, or O'Connor's and Kennedy's swing-justice status. (Ginsburg had a particular aversion to Kennedy's intellectual mean- derings.) As it happened, two o f the justices Ginsburg liked m o s t — Rehnquist and O'Connor—left in quick succession, so she began the term lonelier than usual. B u t more than the others, Ginsburg was free of illusions about the supposedly apolitical nature o f judging and made a clear-eyed assessment o f the motives and consequences o f her colleagues' actions.

W h a t Ginsburg saw was that the conservatives were taking over, and moving swiftly to consolidate their gains. T h e arguments hadn't changed; the personnel had. Over the past few years, O'Connor had moved left so swiftly that she probably passed Breyer in that direc­ tion, and Rehnquist had become an institutionalist, committed to the stability o f the Court more than to ideological change. (For example, the old chief, as he was now referred to, never embraced the Miranda decision, but he came to accept it.) Roberts and Alito were different, as the spring o f 2 0 0 7 quickly illustrated. As Ginsburg observed wryly in her dissent in the abortion case, the only reason for the result was that the Court "is differently composed than it was when we last con­ sidered a restrictive abortion regulation."

As a minor consolation, the abortion case gave Ginsburg the chance to float her own distinctive view o f the constitutional basis for abor-

330 Jeffrey Toobin

tion rights. Even before she became a judge, Ginsburg had not cared for Blackmun's privacy rationale in Roe v. Wade. Rather, as she wrote in her dissent in Gonzales v. Carhart, "legal challenges to undue re­ strictions on abortion procedures do not seek to vindicate some gen­ eralized notion o f privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature." Ginsburg believed abortion rights protected women's equal­ ity, not their privacy, and she persuaded all o f her fellow dissenters— Stevens, Souter, and Breyer—to sign on with her. B u t as the spring wore on, these four justices increasingly were speaking only to each other.

For years, G i n s b u r g had prided herself on her restraint in writ­ ing dissents, c i t i n g O ' C o n n o r and Souter as her fellow exemplars o f politesse. In speeches and in private, she said she thought Scalia- style posturing and invective distracted the Court from its work. B u t on April 1 8 , she read her fiery dissent in the abortion case from the bench, and on May 2 9 , she denounced her colleagues in Ledbetter v. Goodyear Tire & Rubber Company, a case that seemed almost de­ signed to infuriate her. W h i l e still a law school professor, Ginsburg had represented women in equal pay cases under T i t l e V I I , which bans discrimination in the workplace. T h a t law requires individu­ als to file their cases within 1 8 0 days o f "the alleged unlawful em­ ployment practice." For years, the courts said that i f a woman sued within 1 8 0 days o f her last offending paycheck, she received com­ pensation for the entire period she had suffered from discrimina­ tion. B u t in Ledbetter, the five conservatives ruled that plaintiffs could be paid for discrimination only within the six-month statute o f limitations.

"The Court does not comprehend, or is indifferent to, the insidious way in which women can be the victims o f pay discrimination," she said. As Ginsburg knew better than anyone who had ever served on the Court, the majority's ruling ignored the realities o f actual litiga­ tion. She said that women can't possibly know within 1 8 0 days that they are being paid less than men. "Ledbetter's initial readiness to give her employer the benefit o f the doubt should not preclude her from later seeking redress for the continuing payment to her o f a salary depressed because o f her sex," Ginsburg continued. She con­ cluded by imploring Congress to amend Title V I I to make clear that the majority's interpretation was wrong. Her current colleagues, Ginsburg suggested, were beyond help.

T H E N I N E 331

In his two years as chief, Roberts made his public goals clear. Decide more cases; achieve more unanimity; write narrower opinions—judi­ cial minimalism. In 2 0 0 7 , Roberts failed on each one. Only 2 5 per­ cent o f the decisions were unanimous, down from 4 5 percent in his first year. (About a third o f the opinions were unanimous in the Rehnquist years.) Even more striking, 3 3 percent o f the cases in 2 0 0 6 and 2 0 0 7 were decided by votes o f 5—4—a level o f division unprece­ dented in the Court's recent history.

So was Roberts's second year a failure? To the contrary. T h e new chief's stated goals dealt with procedural niceties. T h e president who nominated him (and those who pushed Bush to appoint h i m ) cared above all about the substance o f the Court's decisions, and the changes were dramatic in precisely the way Roberts's sponsors sought. As the spring o f 2 0 0 7 wore on, the pace o f conservative change accelerated. T h e Court invalidated some o f the restrictions on political advertising in the McCain-Feingold campaign finance bill, less than four years af­ ter the Court had approved practically the same rules. In a key church-state ruling, the Court made it much harder for citizens to challenge government activity that endorsed or supported religious activity. In a curious case from Alaska, the Court reduced the free- speech rights o f students by approving the suspension o f a high school senior who unfurled a banner that said, B O N G H i T S 4 J E S U S . All o f these cases were 5 - 4 , with Kennedy joining the conservatives.

Like Ginsburg, Souter generally declined to denounce his col­ leagues in his opinions, but one o f the last cases in J u n e undermined his restraint. In this case, the same majority rejected an appeal by a prisoner who had filed his case in advance o f a deadline set by a fed­ eral district judge. Because the judge had misread the law and given the prisoner too much time to file—three extra days—the Court said that the case had to be thrown out. T h e dissenting opinion by the usually mild-mannered Souter (joined again by Stevens, Ginsburg, and Breyer) reflected true anguish. "It is intolerable for the judicial system to treat people this way, and there is not even a technical jus­ tification for condoning this bait and switch," he wrote.

In several o f these cases—on abortion, campaign finance, and church-state relations—the rulings o f the majority directly contra­ dicted Court precedents, but Roberts and his colleagues did not come

332 Jeffrey Toobin

out and say that the old cases had been overruled. This frustrated Scalia and Thomas, who wanted to see the Court make more explicit denunciations o f its past. In a concurring opinion in the campaign fi­ nance case, Scalia chided Roberts for failing to administer the coup de grâce to the earlier ruling. "This faux judicial restraint is judicial ob- fuscation."

Scalia had a point. Roberts had engaged in the pretense o f mini­ malism—that is, o f respecting the Court's precedents—without actu­ ally doing so. Leaving cases like Breyer's Stenberg opinion on the books without actually following their holdings amounted to a kind o f sophistry, and Scalia, to his credit, believed in candor in opinion-writ­ ing. B u t Roberts coolly turned such complaints aside. T h e labels on the opinions may have been misleading, but their contents were not. B y the spring o f 2 0 0 7 , the Court was a more conservative institution, and so, it followed, were the rules o f American life.

T h e Court puts off its most contentious cases for the last weeks—and the toughest o f all for the last day. T h a t final day o f a term always of­ fers an unvarnished picture o f the justices. B y that point, they are tired and grumpy. In the headlong rush to finish, they have spent en­ tirely too much time with each other and their law clerks and too lit­ tle on the obligations o f everyday life. A t the stroke of ten on J u n e 2 8 , 2 0 0 7 , as the justices emerged from behind the velvet curtains, it was clear that a majority needed haircuts.

Samuel Alito, in the junior justice's chair on the audience's far right, stared blankly into the middle distance. He had been an ap­ peals court judge for fifteen years before becoming a justice, but the unique burdens o f the high court weighed on him as they did on all newcomers. Pasty-faced, phlegmatic, conservative in demeanor as well as conviction, Alito fought sleep from the moment he sat down.

T h e tiny Ginsburg was all but swallowed up in the next chair toward the middle, her head barely visible above the bench. Immaculate as ever, unlike her weary colleagues, she stared in evident fury straight ahead o f her. T h e term had been a disaster, and she had no intention o f pretending otherwise.

In the best of circumstances, David Souter loathed ceremonial oc­ casions like this one. In a venerable custom, before many oral argu­ ments, the Court still allows lawyers to be sworn in as members of the

T H E N I N E 333

Supreme Court bar in person. T h e proceeding usually takes about ten minutes and concludes with the chief justice welcoming the new group. Unlike his colleagues, Souter never cracks a smile at what he regards as a total waste o f time. So, too, on this day, Souter seethed at having to sit through a pointless ritual at the end o f another unhappy year.

Scalia looked fine, his eyebrows dancing in satisfaction at the year's accomplishments. H e hadn't won every case, and his colleagues had not gone as far or as fast as he would have preferred, but it had still been the best term for Scalia in a long, long time.

Roberts, in the center seat, showed the first traces o f gray in his hair, but his face was as unlined as when he'd carried Rehnquist's cas­ ket into the building twenty-two months earlier. His confidence had deepened. It was his Court, and everyone knew it.

Stevens, to the chief's right, looked the same as ever, two months after his eighty-seventh birthday. (At the time, his older brother, W i l l i a m , was still practicing law part-time in Florida in his ninety- first year.) W i t h his bow tie, unfashionably large tortoise-shell glasses, and inscrutable expression, J o h n Stevens gave nothing more away than he did at the bridge table in Fort Lauderdale, where he would soon be going.

Kennedy's studied earnestness could not conceal his joy. N o justice in history had had a term like his; in the twenty-four cases decided by votes o f 5 - 4 , Kennedy was in the majority in every single one. And he had two more majority opinions, and a crucial concurrence, to an­ nounce. After an early-morning workout on the elliptical trainer, this seventy-year-old man glowed.

T h e last two seats on the bench enjoy the dubious privilege o f im­ mediate proximity to the press section. O n this day, N i n a Totenberg o f N P R sat closest to the justices, and Clarence Thomas swung so far back in his chair that Stephen Breyer blocked her view o f him—and his o f her. Before Alito's arrival, Thomas had spent more than eleven years at the other side o f the courtroom from the reporters, an arrangement much more to his liking. Thomas's chair was adjusted to allow him to lean back much farther than his colleagues, and he, un­ like Alito, didn't look like he was trying to keep his eyes open. Even by Thomas's own peculiar standards, this had been an extraordinary year. Over an entire Court term, Thomas had sat through one hundred and four oral arguments and not asked a single question.

At the end o f the bench, Breyer twitched, leaning forward and then

334 Jeffrey Toobin

back, his hand straying from the thick stack o f papers before him to his bald head and back. Breyer always fidgeted more than his col­ leagues, but he looked on this day as i f he wanted to jump out o f his skin. T h i s epochal term on the Court had changed Breyer more than anyone. H e had lost cases before, o f course, but he had always re­ sponded with energy and hope—as when he rallied the liberal clerks out o f their despair after Bush v. Gore. Now, the conservative on­ slaught had darkened Breyer's naturally sunny temperament. Desperate for productive work throughout this dismal spring, he had thrown himself into lobbying Congress for the pay raises for judges. A t least on the other side o f First Street, Breyer had a chance o f win­ ning.

Three cases remained. Kennedy announced the first, when the Court didn't even offer the pretense o f minimalism and overruled a ninety- six-year-old precedent. Since the case, known as Dr. Miles, in 1 9 1 1 , the Court had held that antitrust law forbade manufacturers from set­ ting m i n i m u m prices for their products. T h e idea was that minimum prices discouraged competition and raised costs for consumers. Henceforth, according to Kennedy and the four conservatives, mini­ m u m prices would sometimes be allowed.

As always, Kennedy gave a longer summary o f his opinion that the others tended to do, and Breyer, two seats to his right, rolled his eyes in irritation. "Justice Stevens, J u s t i c e Souter, J u s t i c e Ginsburg, and I have filed a dissenting opinion," Breyer began, in his singsong voice. "I want here to emphasize one point: stare decisis." That was his theme for the day and for the year: that the conservatives were aban­ doning the rule o f precedent without justification.

In the next case, it was Kennedy again, this time siding with the four liberals. They struck down a death sentence for a Texas man who suffered from mental illness. T h i s case reflected true judicial minimal­ ism, because the Court set down no new rules and simply ordered the lower court to give the man a new hearing. Thomas, the Court's most reliable supporter o f executions, wrote a dissent for Roberts, Scalia, and Alito, but he declined to speak from the bench.

Then, finally, it came down to the last case o f the year, the com­ bined appeals on the Louisville and Seattle school desegregation cases, and Roberts announced he would deliver the opinion himself. Few

T H E N I N E 335

justices in history have taken to opinion-writing as quickly as Roberts. T h e new chief is good-natured, to be sure, but he is also in­ tensely competitive, and he writes his opinions as he did his briefs when he was a litigator—with crystalline logic, pungent rhetoric, and vivid examples. Once more the Court was limiting a precedent rather than overturning it outright—now it was O'Connor's Grutter opin­ ion—but the message was the same as in the other cases. T h e conser­ vative majority had arrived.

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 o f 1 9 5 4 where Chief J u s t i c e 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 o f their skin. T h e school districts in these cases have not carried the heavy burden o f 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 dis­ crimination on the basis o f race is to stop discriminating on the basis o f race."

Breyer then spoke for twenty-seven minutes, one o f 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 o f Roberts's opinion. In a vague and confusing concurring opinion o f 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 o f Louisville and Seattle, concentrating more on raising test scores than mixing races. Thus, the practical effect o f the day's decisions was left rather mysterious and may turn out to be modest.

B u t Breyer wrote at such length, and spoke with such passion, be­ cause o f something more than the immediate stakes. In part, he (joined again by all three liberals) was simply offended at the hijack­ ing of Brown by the conservatives. "The lesson o f history is not that efforts to continue racial segregation are constitutionally indistin­ guishable from efforts to achieve racial integration," he said. "And it is a cruel distortion o f history to compare Topeka, Kansas, in the

336 Jeffrey Toobin

1 9 5 0 s , to Louisville and Seattle in the modern day." In part, too, Breyer saw planted in Roberts's opinion the end o f all affirmative ac­ tion—in employment, in business, and in government, as well as in education. T h e "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 o f the Court that I joined in 1 9 7 5 would have agreed with today's deci­ sion.")

B u t 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?" H e listed Grutter and six more cases that now appeared to be dead letters. "The plurality's logic writes these cases out o f the law," he said, and then added words that did not ap­ pear in the published version o f his dissenting opinion: "It is not of­ ten in law that so few have so quickly changed so much."

A t 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 o f the Republican Party, and propelled by the nominations o f Roberts and Alito. Expand executive power. End racial preferences intended to assist African Americans. Speed ex­ ecutions. Welcome religion into the public sphere. And, above all, re­ verse 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 o f 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 J o h n Roberts to the Supreme Court, the future chief justice reflected upon the great symbol at the heart o f Cass G i l b e r t 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 o f awe as they entered Gilbert's temple o f justice. Soon, however, no one else will. T h e steps will be closed to the public as an entranceway to the Court.

Rehnquist made the renovation o f 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 2 0 0 9 - And like much else in Washington after September 1 1 , 2 0 0 1 , the design decisions about the renovation were made with obsessive attention to the issue o f security. Most notably, the public entrance up the front steps—the defining feature o f Gilbert's concept for the structure—was deemed an undue risk. So a new entrance will be gouged into the side o f the steps, near the base o f the building. Visitors will still be allowed to depart down the front steps, and watch Gilbert's vision recede behind them.

W h e t h e r the closing o f 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 influ­ ence, the Court has always reflected the political currents driving the broader society. In the early days o f the Republic, when regional con­ flict predominated, that tension could be seen on the Court. Presidents

338 Jeffrey Toobin

felt obligated to replace, say, a California justice with another from the same state. (Later, o f course, it passed almost without notice that the Court for many years had two justices, Rehnquist and O'Connor, from the relatively unpopulated state o f Arizona.) In the nineteenth and twentieth centuries, the great tide o f European immigration put religion near the center o f politics, and the tradition o f a "Catholic seat" and a "Jewish seat" arose. T h e fact that President Clinton drew little comment by appointing two J e w s to the Court proved the pass­ ing o f this era. Likewise, there is little significance that there are now five Catholic justices. T h e most important liberal in the Court's his­ tory, W i l l i a m Brennan, was Catholic, too.

Today, the fundamental divisions in American society are not re­ gional or religious but ideological. Roberts, Scalia, Kennedy, Thomas, and A l i t o were not appointed because they are Catholic but because they are conservative. T h e base o f the Republican Party— from J a m e s Dobson and J a y 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 o f justices who were precisely to their liking (and the ejection o f one nominee, Harriet Miers, who was not). W i t h admirable candor, and even greater passion, conser­ vatives have invested in the Court to advance their goals for the country.

In public at least, Roberts himself purports to have a different view o f the Court than his conservative sponsors. "Judges are like um­ pires," 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 o f this is true. Supreme Court justices are nothing at all like baseball umpires. It is folly to pretend that the awesome work o f interpreting the Constitution, and thus defining the rights and obligations o f American citizenship, is akin to performing the rote, almost mindless task o f calling balls and strikes. W h e n it comes to the core o f the Court's work, determining the contemporary meaning o f the Constitution, it is ideology, not craft or skill, that con­ trols the outcome o f cases. As Richard A. Posner, the great conserva­ tive judge and law professor, has written, "It is rarely possible to say with a straight face o f a Supreme Court constitutional decision that it

T H E N I N E 339

was decided correctly or incorrectly." Constitutional cases, Posner wrote, "can be decided only on the basis o f 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 o f consensual homosexual sex and voted accordingly. O n that occasion, as so often, ideology trumped precedent. It is, o f course, possible to overstate the flexibility in the meaning o f the Constitution. Honorable judges always tether their views to the words o f the docu­ ment, its history, and the precedents, so the justices' freedom to inter­ pret 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 o f the argu­ ments but the identity o f the justices. There is, for example, no mean­ ingful difference between Scalia and Ginsburg in intelligence, competence, or ethics. W h a t 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 require­ ments o f 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 o f the Supreme Court: the outcomes o f presidential elections. Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely. T h e 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 o f the subsequently ap­ pointed justices—Thomas, Ginsburg, Breyer, Roberts, and A l i t o — have turned out precisely as might have been expected by the presidents who appointed them. T h a t will almost certainly be true, too, o f 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

340 Jeffrey Toobin

a magnificent illusion—that the Supreme Court operates at a higher plane than the mortals who toil on the ground. B u t the Court is a product o f a democracy and represents, with sometimes chilling pre­ cision, the best and worst o f the people. W e can expect nothing more, and nothing less, than the Court we deserve.

ACKNOWLEDGMENTS

This book was much improved by the attentive and skillful editing o f Phyllis Grann. At Doubleday, I am grateful also to Karyn Marcus, Todd Doughty, Roslyn Schloss, Rebecca Holland, Michael Collica, Bette Alexander, and the boss, Stephen Rubin. Once again, my agent, Esther Newberg, has steered me the right way. My thanks as well to J o h n Q. Barrett o f the St. John's School o f Law and to Tom Goldstein o f the Akin, G u m p firm for their helpful comments on the manu­ script, and to Dan Kaufman for fact-checking assistance.

I am privileged to work at The New Yorker, where David R e m n i c k has been a generous editor and a loyal friend. I am fortunate to work with Dorothy Wickenden, Emily Eakin, and Jeffrey Frank. I am lucky, too, in my C N N colleagues, and I thank J o n K l e i n and B i l l Mears for their support o f this venture.

Covering the World Cup had absolutely nothing to do with writ­ ing about the Supreme Court, but that experience, with my son Adam, was the highlight o f this book's creation. Talking with my daughter Ellen is always a part o f my continuing education, about law, politics, and everything else. M y days with their mother, Amy Mcintosh, are nothing less than the highlight o f my life.

NOTES

T h i s book is based principally on my interviews with the justices and more than seventy-five o f their law clerks. T h e interviews were on a not-for-attribution basis—that is, I could use the information pro­ vided but without quoting directly or identifying the source.

I have also steeped myself in the vast literature about the Court. In addition to the works cited below and in the bibliography, I have ben­ efited from the day-to-day coverage o f the Supreme Court press corps, especially that o f Linda Greenhouse, Lyle Denniston, Chuck Lane, Dahlia Lithwick, Tony Mauro, David Savage, and Nina Totenberg. M y thanks also to the Public Information Office o f the Court, its ex­ cellent website, www.supremecourtus.gov, and Kathy Arberg, Patricia McCabe, and Ed Turner. Like all contemporary students o f the Court, I benefited from my immersion in J u s t i c e Blackmun s pa­ pers at the Library o f Congress. My discussion o f the Casey abortion decision drew heavily from this priceless trove.

Fortunately, the Court's opinions are now widely available online. I relied on Cornell University's http://supct.law.cornell.edu/supct/ index.html. For transcripts and recordings o f the Court's oral argu­ ments, Professor Jerry Goldman o f Northwestern University created www.oyez.org, which I found indispensable. Among blogs, I looked often at the authoritative www.scotusblog.com, the encyclopedic http://howappealing.law.com, and the irresistible, i f much dimin­ ished http://underneaththeirrobes.blogs.com. I am grateful, too, to Dr. Robert Browning and his colleagues at the C-Span archive in West Lafayette, Indiana, for the opportunity to study their many trea­ sures.

Notes to Pages 1 to 39 343

P R O L O G U E

1 The architect Cass Gilbert: Paul Byard, "Supreme Court Architecture," lec­

ture, Supreme Court Historical Society, U.S. Supreme Court, March 2 4 , 1999;

Fred J . and Suzy Maroon, Supreme Court, chs. 1-2; William H. Rehnquist,

Supreme Court, pp. 1 0 0 - 2 ; Leo Pfeffer, Honorable Court, p. 6 9 .

C H A P T E R 1: T H E F E D E R A L I S T W A R O F I D E A S

13 They called themselves the Federalist Society: George W. Hicks, "The

Conservative Influence of the Federalist Society on the Harvard Law School

Student Body," Harvard Journal of Law and Public Policy 29 ( 2 0 0 6 ) , p. 6 4 8 . 15 some conservatives started questioning that wisdom: For an extensive and

critical examination of the Constitution-in-exile movement, see Cass R.

Sunstein, Radicals in Robes, and Jeffrey Rosen, "The Unregulated Offensive,"

New York Times Magazine, April 17, 2 0 0 5 . 15 a speech at Yale in 1982: Hicks, "Conservative Influence," p. 6 4 9 .

19 "object to as much as the last one": Ethan Bronner, Battle for Justice,

p. 312.

21 Sununu promised that the president: Jane Mayer and Jill Abramson,

Strange Justice, p. 13.

C H A P T E R 2 : G O O D V E R S U S E V I L

25 "They'll both bite": Mayer and Abramson, Strange Justice, p. 16.

28 Minnesota Twins: Linda Greenhouse, Becoming Justice Blackmun, p. 6 3 . 29 William O. Douglas, then the senior associate justice: Bob Woodward and

Scott Armstrong, The Brethren, p. 170.

29 Stewart responded eagerly: J . Anthony Lukas, "The Playboy Interview: Bob

Woodward," Playboy, Feb. 1989. 29 "right on target!": Joan Biskupic, Sandra Day O'Connor, p. 158.

31 top hat as a gift: Greenhouse, Becoming Justice Blackmun, p. 56. 31 "just like a clown": John W Dean, "The Rehnquist Choice," p. 86.

32 "Voices outside the room": Bonnie Goldstein, "Rehnquist's Skeletons," Slate,

Jan. 16, 2 0 0 7 , www.slate.com/id/2157684.

33 Rehnquist had tentatively planned: Mayer and Abramson, Strange Justice,

pp. 3 4 9 - 5 0 .

33 the Post decided not to pursue the issue: Ibid., p. 350.

C H A P T E R 3 : Q U E S T I O N S P R E S E N T E D

38 bagpipes provided accompaniment: Biskupic, Sandra Day O'Connor,

pp. 3 1 - 3 2 , 51.

39 she voted to end criminal prohibitions: Ibid., p. 58.

344 Notes to Pages 40 to 72

4 0 a young Justice Department aide named Kenneth Starr: David J . Garrow,

"The Unlikely Center," New Republic, Feb. 2 8 , 2 0 0 6 .

4 0 audacious litigation tactics: Edward Lazarus, Closed Chambers, pp. 4 5 9 - 8 6 ;

Greenhouse, Becoming Justice Blackmun, pp. 1 9 9 - 2 0 6 . 41 he simply kept Planned Parenthood v. Casey off the list o f cert petitions:

There is some dispute about how hard Rehnquist tried to delay the Casey argu­

ment. Blackmun clearly thought the chief was trying to run out the clock be­

fore the election. See David J . Garrow, "Dissenting Opinion," New York Times

Book Review, April 19, 1 9 9 8 . 43 never managed to catch up: David J . Garrow, "Justice Souter Emerges,"

New York Times Magazine, Sept. 2 5 , 1994. 4 4 "close approach to solitude": Garrow, "The Unlikely Center."

C H A P T E R 4 : C O L L I S I O N C O U R S E

53 helped spark the Civil War: David G. Savage, "The Rescue of Roe v. Wade"

Los Angeles Times, Dec. 13, 1992. 53 "decisions we do not like": Lazarus, Closed Chambers, p. 4 7 1 . 54 "Wow! Pretty extreme!": Greenhouse, Becoming Justice Blackmun, p. 203. 54 a letter from a nun: Savage, "The Rescue of Roe v. Wade"

55 "correctness and legitimacy": Greenhouse, Becoming Justice Blackmun, p. 204. 55 unlikely jogging partners: Savage, "The Rescue of Roe v. Wade."

56 " 'what I think it ought to mean!' ": Margaret Talbot, "Supreme

Confidence," New Yorker, March 2 8 , 2 0 0 5 , p. 4 2 .

56 correct for all time: Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, p. 2 1 5 .

57 He needed to "brood": Terry Carter, "Crossing the Rubicon," California

Lawyer, Oct. 1992.

C H A P T E R 5 : B I G H E A R T

64 Cuomo faxed Clinton: George Stephanopoulos, All Too Human: A Political

Education, pp. 1 6 7 - 6 8 . 67 the Guinier nomination blew up: John F. Harris, The Survivor: Bill Clinton

in the White House, p. 6 0 . 69 less sympathy than some judges: See http://www.oyez.org/oyez/resource/

legal_entity/107/biography.

71 "answer will be nothing but yes": Stephanopoulos, All Too Human, pp.

1 7 0 - 7 1 . See also Henry J . Abraham, Justice, Presidents, and Senators, pp. 3 1 5 - 2 0 . 72 Ruth Bader Ginsburg had been to women's rights: Roger K. Newman,

"President Clinton's Supreme Court Appointments," lecture, Hofstra

University, Nov. 11, 2 0 0 5 .

Notes to Pages 73 to 111 345

73 he was the only person: David Remnick, "Negative Capability," The New

Yorker, Nov. 27, 1 9 9 5 , p. 4 4 .

C H A P T E R 6 : E X I L E S R E T U R N ?

76 witty speech Breyer had given: Newman, "President Clinton's Supreme

Court Appointments."

77 "how awful you are?": Ibid.

79 Clinton asked his staff to leave him alone: Ibid.

79 His distinguished service on the judiciary continued: See Morris Sheppard

Arnold, "A Tribute to Richard S. Arnold," Arkansas Law Review 58 (2005):

4 8 1 , 4 8 2 .

82 libertarian magazine: Douglas H. Ginsburg, "Delegation Running Riot,"

Regulation 18, no. 1 (1995).

C H A P T E R 7: W H A T S H A L L B E O R T H O D O X

87 "no other gods before me": See discussion in Noah Feldman, Divided by God,

pp. 15 Iff.

89 His law firm declared bankruptcy: Tony Mauro, "Jay Sekulow's Golden

Ticket," Legal Times, Oct. 3 1 , 2 0 0 5 . 93 "Wrong table": Jeanne Cummings, "In Judge Battle, Mr. Sekulow Plays a

Delicate Role," Wall Street Journal, May 17, 2 0 0 5 . 96 various civic groups: Biskupic, Sandra Day O'Connor, pp. 2 8 2 - 8 6 .

C H A P T E R 8 : W R I T I N G S E P A R A T E L Y

102 Thomas required the new ones: Kevin Merida and Michael Fletcher,

Supreme Discomfort: The Divided Soul of Clarence Thomas, p. 163. 102 still bedridden most of the time: Tony Mauro, "Decade after Confirmation,

Thomas Becoming a Force on High Court," Legal Times, Aug. 2 0 , 2 0 0 1 .

104 his mother was struggling: Ibid., p. 39-

104 "condo on wheels": Merida and Fletcher, Supreme Discomfort, p. 340.

105 "universally untrustworthy": Diane Brady, "Supreme Court Justice Clarence

Thomas Speaks," BusinessWeek, March 12, 2 0 0 7 .

I l l would not appear on television morning news shows: David D.

Kirkpatrick with Linda Greenhouse, "Memoir Deal Reported for Justice

Thomas," New York Times, Jan. 10, 2 0 0 3 . I l l $ 4 2 , 2 0 0 in gifts: Richard A. Serrano and David G. Savage, "Justice Thomas

Reports Wealth of Gifts," Los Angeles Times, Dec. 3 1 , 2 0 0 4 .

346 Notes to Pages 117 to 172

C H A P T E R 9 : C A R D S T O T H E L E F T

117 Clinton always said he had no memory: Of course, it is possible that both

Jones and Clinton were lying and that a consensual sexual encounter took

place. See Jeffrey Toobin, A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President, p. 158.

123 In 1 9 7 5 , as Jeffrey Rosen first reported: Jeffrey Rosen, "Rehnquist the

Great?" Atlantic Monthly, April 2 0 0 5 .

C H A P T E R 1 0 : T H E Y E A R O F T H E R O U T

125 the riches he extracted: On Sekulow's financial arrangements, see Mauro,

"Jay Sekulow's Golden Ticket."

132 an anonymous informant slipped: On the history of "partial birth" legisla­

tion, see Chris Black, "The Partial-Birth Fraud," American Prospect, Fall 2 0 0 1 .

C H A P T E R 1 1 : T O T H E B R I N K

142 a dozen roses for him: Biskupic, Sandra Day O'Connor, pp. 1 6 7 - 6 8 .

143 Stoessel's party: See Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, pp. 2 4 8 - 4 9 ; Evan Thomas and Michael Isikoff, "The Truth Behind the Pillars," Newsweek, Dec. 2 5 , 2 0 0 0 ; Jess Bravin

et al., "For Some Justices, the Bush-Gore Case Has a Personal Angle," Wall

Street Journal, Dec. 2 0 , 2 0 0 0 ; Biskupic, Sandra Day O'Connor, pp. 3 0 8 - 9 . 143 "Pool hustler": Biskupic, Sandra Day O'Connor, pp. 3 1 , 293.

C H A P T E R 1 2 : O V E R T H E B R I N K

156 many clerks think they are more important: For a realistic and

moderate view of the role of law clerks, see Emily Bazelon and Dahlia

Lithwick, "Endangered Elitist Species," Slate, posted June 13, 2 0 0 6 ,

http://www.slate.com/id/2l43628/, which discusses Todd C. Peppers, Courtiers

of the Marble Palace, and Artemus Ward and David L. Weiden, Sorcerers' Apprentices.

164 "Please make sure": For details of the actions of the Bush and Gore teams

in connection with Bush v. Gore, see Toobin, Too Close to Call, chs. 1 5 - 1 6 .

C H A P T E R 1 3 : P E R F E C T L Y C L E A R

167 a Ginsburg clerk: David Margolick et al., "The Path to Florida," Vanity

Fair, Oct. 2 0 0 4 ; Toobin, Too Close to Call, chs. 1 5 - 1 6 . 172 how votes are counted after the election: See, e.g., Jack Balkin, "Bush v. Gore

and the Boundary between Law and Politics," Yale Law Journal 110 (2001): 1407.

172 as innumerable commentators subsequently pointed out: For a recent

case, Bush v. Gore has already generated a vast literature. See, e.g., Bruce

Notes to Pages 175 to 202 347

Ackerman, éd., Bush v. Gore: The Question of Legitimacy, New Haven: Yale University Press, 2 0 0 2 ; E. J . Dionne J r . and William Kristol, eds., Bush v.

Gore: The Court Cases and the Commentary, Washington: Brookings Institution Press, 2 0 0 1 ; Richard A. Posner, Breaking the Deadlock, Princeton: Princeton

University Press, 2 0 0 1 ; Cass R. Sunstein and Richard A. Epstein, eds., The

Vote: Bush, Gore & the Supreme Court, Chicago: University of Chicago Press, 2 0 0 1 . 175 T h e journalists' confusion was understandable: In fairness, I should dis­

close that I was one of those reporters trying to translate the opinion on live

television.

176 T h e recount o f the 6 0 , 0 0 0 undervotes: After the election, the most com­

prehensive examination of the ballots in Florida was led by eight news organi­

zations, including the New York Times and the Washington Post, and conducted by the National Opinion Research Center. See http://www.norc.org/fl/voting.asp.

The "media recount," as it became known, examined all 1 7 5 , 0 1 0 ballots in the

state that were undervotes or overvotes and thus not counted in the final tally.

Under all of the contemplated scenarios, if a full statewide recount had been

conducted, the media recount showed that Gore would have won Florida; if the

Court had allowed the recount to proceed in just the disputed counties, accord­

ing to this recount, Bush would have won. As with the official election results,

the margins between the candidates in the media recount were tiny, just a few

hundred votes; moreover, this recount did not review the already counted bal­

lots, nor could it capture the uncertainties of vote counting in the real world.

In short, it is fair to say that there is no way of knowing with certainty

whether Bush or Gore would have won if the Court had allowed the recount to

proceed.

C H A P T E R 1 4 : "A P A R T I C U L A R S E X U A L A C T "

184 where a Supreme Court justice could mingle: Anne-Marie Slaughter, A

New World Order, ch. 2. 187 an unusual conversation with one o f his law clerks: John C. Jeffries J r . ,

Justice Lewis F. Powell Jr. See also Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court, pp. 2 7 2 - 7 5 .

C H A P T E R 1 5 : "A L A W - P R O F E S S I O N C U L T U R E "

199 "He always had a book in front o f his face": Talbot, "Supreme

Confidence."

202 Black Hawk air combat helicopters: David G. Savage and Richard A.

Serrano, "Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows," Los

Angeles Times, Feb. 5, 2 0 0 4 ; Adam Nossiter, Associated Press Wire, Feb. 5,

2 0 0 4 .

348 Notes to Pages 208 to 283

C H A P T E R 1 6 : B E F O R E S P E A K I N G , S A Y I N G S O M E T H I N G

2 0 8 O'Connor was assigned to write the opinion: See Biskupic, Sandra Day

O'Connor, pp. 2 0 5 - 8 ; David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court, pp. 2 3 9 - 4 3 ; Lazarus, Closed Chambers, pp. 2 9 1 - 9 9 .

211 grade-point averages: Nicholas Lemann, "The Empathy Defense," New

Yorker, Dec. 18, 2 0 0 0 , p. 4 6 . 211 B a r b a r a Grutter was one o f nine children: Ibid., p. 4 8 .

C H A P T E R 1 7 : T H E G R E E N B R I E F

227 four o f twenty-two such cases: See generally David Cole, "The Liberal

Legacy of Bush v. Gore" Georgetown Law Journal 9 4 (2006): 1427.

C H A P T E R 1 8 : " O U R E X E C U T I V E D O E S N ' T "

2 2 9 the lawyers in charge could not have differed more: For a detailed ac­

count of the lawsuit from the plaintiff's perspective, see Joseph Margulies,

Guantanamo and the Abuse of Presidential Rower. 232 "These photos proved to be the most powerful": Ibid., pp. 1 5 2 - 5 3 .

There is no evidence that Clement knew anything about the torture.

2 3 4 later renamed the Chicago Hilton: On Stevens's connection to the hotel,

see Charles Lane, "Justice on a Small Scale," Washington Post, June 5, 2 0 0 5 .

237 the Court did no such thing: See Simon Lazarus, "Federalism RIP?" DePaul

Law Review 56 (2006): 1, 3 0 - 3 5 .

C H A P T E R 1 9 : "A G R E A T P R I V I L E G E , I N D E E D "

242 This was a different salute: Linda Greenhouse, "The Inauguration: Ailing

Chief Justice Makes Good His Promise," New York Times, Jan. 2 1 , 2 0 0 5 .

2 4 4 "Fajitas and frivolity": Biskupic, Sandra Day O'Connor, p. 249.

C H A P T E R 2 0 : " G ' IS F O R G O D "

2 6 8 Miranda wasn't m u c h more than a glorified blogger: See Michael

Crowley, "Miranda Rights," New Republic, July 2 5 , 2 0 0 5 ; Alexander Bolton,

"Fall and Rise of Miranda," Hill, Nov. 9, 2 0 0 5 .

C H A P T E R 2 1 : R E T I R I N G T H E T R O P H Y

277 Cheney and Miers were on board: Peter Baker, "Unraveling the Twists and

Turns of the Path to a Nominee," Washington Post, July 2 5 , 2 0 0 5 .

283 he remembered something else that Reid: Eisa Walsh, "Minority Retort,"

New Yorker, Aug. 8 and'15, 2 0 0 5 , p. 4 2 .

Notes to Pages 286 to 333 349

C H A P T E R 2 2 : "I K N O W H E R H E A R T "

286 the law firm where she would spend: J . Michael Kennedy et al., "Few

Clues to Miers' Convictions," Los Angeles Times, Oct. 6, 2 0 0 5 .

287 "Harriet epitomizes that": Ibid.

2 8 9 Hecht himself would be speaking: John Fund, "Judgment Call,"

Opinionjournal.com, Oct. 17, 2 0 0 5 .

291 "I agree with that": Ibid.

293 an "engaging person": Dana Milbank, "The Sales Calls Begin on Capitol

Hill, but Some Aren't Buying," Washington Post, Oct. 6, 2 0 0 5 .

293 "this president's knowledge o f this nominee": Peter Baker and Dan Balz,

"Conservatives Confront Bush Aides," Washington Post, Oct. 6, 2 0 0 5 .

C H A P T E R 2 3 : D I N N E R A T T H E J U S T D E S S E R T S C A F É

307 DeLay in the House and J o h n Cornyn in the Senate: Mike Allen and

Charles Babington, "House Votes to Undercut High Court on Property,"

Washington Post, July 1, 2 0 0 5 .

C H A P T E R 2 4 : "I A M A N D A L W A Y S H A V E B E E N . . ."

311 he sought to move up to a position: J o Becker and Dale Russakoff,

"Proving His Mettle in the Reagan Years," Washington Post, Jan. 9, 2 0 0 6 .

314 Neas insisted that he had to be stopped: Lois Romano and Juliet Eilperin,

"Republicans Were Masters in the Race to Paint Alito," Washington Post, Feb.

2, 2 0 0 6 .

320 Katyal constructed a legal assault: See Nina Totenberg, profile of Neal

Katyal, National Public Radio, http://www.npr.org/templates/story/

story.php Pstoryld=575135.

C H A P T E R 2 5 : P H A N A T I C S ?

325 "Should Grutter v. Bollinger . . . be overturned?": By a public initiative passed

on November 7, 2 0 0 6 , Michigan voters overturned the university affirmative

action program which the Supreme Court had approved in Grutter. The conser­

vative leader Ward Connerly led the fight to end preferential treatment for mi­

nority students. The initiative itself, known as Proposal 2, has also been

challenged in the courts.

331 unprecedented in the Court's recent history: All statistics come from the au­

thoritative compilation at Scotusblog. See http://www.scotusblog.com/movable

type/archives/MemoOT06.pdf.

333 Thomas had not asked a single question: According to a study of the year's

oral argument transcripts by Michael Doyle of the McClatchy Newspapers,

Breyer spoke the most words, 3 4 , 9 3 7 , followed by Scalia with 30,087. Alito

350 Note to Page 338

was second-to-last with 5,674, and Thomas last with zero. See http://www.

mcclatchydc.com/201 /story/16193 .html.

E P I L O G U E : T H E S T E P S — C L O S E D

3 3 8 "It is rarely possible to say": Richard A. Posner, "The Supreme Court 2 0 0 4

Term—Foreword: A Political Court," 119 Harvard Law Review 31 (2005).

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Biskupic, Joan. Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice. New York: Ecco Books, 2 0 0 5 .

Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.

Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Alfred A. Knopf, 2 0 0 5 .

Bronner, Ethan. Battle for Justice: How the Bork Nomination Shook America. New York: W. W. Norton, 1989.

Clinton, Bill. My Life. New York: Alfred A. Knopf, 2 0 0 4 .

Dean, John W. The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court. New York: Free Press, 2 0 0 1 .

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Mayer, Jane, and Jill Abramson. Strange Justice: The Selling of Clarence Thomas. Boston: Houghton Mifflin, 1994.

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PHOTO CREDITS

Grateful acknowledgment is given to the following for the photos in this book:

Page 1. Mark Wilson/Getty Images Page 2. W i n M c N a m e e / G e t t y Images Page 3, top. Jason Reed/Reuters/Corbis Page 3, bottom left. Jeffrey Markowitz/Corbis Sygma Page 3, bottom right. Frank Franklin I I / A P / W i d e World Photos Page 4 , top left. Aynsley F l o y d / A P / W i d e World Photos Page 4 , top right. J . Scott Applewhite/AP/Wide World Photos Page 4 , bottom left. Paul Sancya/AP/Wide W o r l d Photos Page 4 , bottom right. Peter A. Smith Page 5, top. Kenneth L a m b e r t / A P / W i d e World Photos Page 5, bottom. Liu J i a n s h e n g / A P / W i d e W o r l d Photos Page 5, bottom right. Michael K o o r e n / R E U T E R S Page 6. Jason Reed/Reuters/Corbis Page 7, top. Kevin Lamarque/Reuters/Corbis Page 7, bottom. R o n E d m o n d s / A P / W i d e W o r l d Photos Page 8, top left. Charles Dharapak/AP/Wide W o r l d Photos Page 8, top right. Dennis C o o k / A P / W i d e World Photos Page 8, bottom. J o e Raedle/Getty Images

I N D E X

ABA (American Bar Association), 184, 185, 269, 314

abortion rights, 12, 13, 75, 260 Arizona legalization efforts on, 3 9 - 4 0 as central judicial issue, 36, 62, 241,

265, 266, 270, 277, 312 foreign laws on, 197 as fundamental right, 4 6 - 4 7 , 56 maternal health considered in, 49—50,

133, 134, 135, 309, 310 physicians' assessment linked to, 4 9 - 5 0 privacy rights argument on, 15-16, 45,

49, 71 religious opposition to, 20, 53, 88 trimester analysis applied to, 49, 50, 58

abortion rights, limitation of, 3 , 7 gag rule as, 43 judicial bypass of parental consent

requirement as, 269—70 on late-term procedures, 132-36 parental notification requirement as,

3 0 9 - 1 0 risk information mandated as, 16—17 as sex discrimination, 71 spousal notification as, 37-38, 52, 54,

58-59, 132, 2 9 9 - 3 0 0 twenty-four-hour waiting period as, 37,

50, 199 undue burden standard applied to,

5 0 - 5 1 , 58, 310 Abramson, Jill, 33 Abu Ghraib prison, 232, 233, 234 ACLJ (American Center for Law and

Justice), 92, 125-26 ACLU (American Civil Liberties Union),

4 0 , 4 1 , 69, 92, 125, 229, 304 Active Liberty (Breyer), 303 Adarand Construction, Inc. v. Pena, 212, 216

affirmative action. See racial preferences Afghanistan, U.S. detainees from, 2 2 8 - 2 9

See also Guantânamo Bay, U.S. detainees held at

African Americans affirmative action programs for; see racial

preferences in military service, 214

airports, religious proselytizing at, 90-91 Albert Gore, Jr. v. Katherine Harris, 157-68,

160 See also Bush v. Gore

Alito, Martha-Ann, 316 Alito, Samuel A., Jr., 318, 319

on abortion rulings, 16-17, 3 7 - 3 8 , 52, 58, 59, 2 9 9 - 3 0 0 , 312, 315

background of, 299, 311, 314 conservative credentials of, 298, 311,

3 1 2 , 3 1 4 on Guantânamo detainees, 321, 322 law clerks hired by, 317 as Supreme Court candidate, 273, 274,

275, 298, 299, 3 1 1 - 1 6 Al Qaeda, 229, 231 American Bar Association (ABA), 184,

1 8 5 , 2 6 9 , 3 1 4 American Center for Law and Justice

(ACLJ), 92, 125-26 American Civil Liberties Union (ACLU),

4 0 , 4 1 , 69, 92, 125, 229, 304 American Enterprise Institute, 110 American Medical Association, 135 amicus briefs, 219 Annan, Kofi, 185 Antiterrorism and Effective Death Penalty

Act (1996), 194 Arafat, Yasir, 74 Arizona, abortion rights effort in, 3 9 - 4 0

356 Index

Arlington Group, 291, 297 Armey, Richard, 112 Armstrong, Scott, 29 Arnold, Morris, 77 Arnold, Richard, 66, 7 6 - 7 9 , 80 Ashcroft, John, 130, 205, 207, 249, 317 Ave Maria School of Law, 1 0 5 - 6 Ayotte v. Planned Parenthood of Northern New

England, 3 0 9 - 1 0

Babbitt, Bruce, 6 5 - 6 6 , 67, 76 Babbitt, Hattie, 66 Baird, Zoe, 65, 69 Baker, Howard, 19-20 Baker, James A., Ill, 145-46, 149, 157,

159 Baker v. Carr, 24 Bakke case. See Regents of the University of

California v. Bakke Barak, Aharon, 186 Bartolomucci, Christopher, 258, 275 Barzini, Luigi, 319 Bauer, Gary, 291 Beazley, Napoleon, 273 Beck, Phil, 160 Bennett, Bob, 115, 116, 117, 118 Bennett, William, 115 Berenson, Bradford, 258, 275 Berns, Walter, 115 Biden, Joseph, 315 Bill of Rights, 56 bin Laden, Osama, 320 birth control, 12, 19 Biskupic, Joan, 38, 143, 244 Black, Hugo, 88 Blackmun, Harry A., 44, 46, 106, 143,

155, 223, 317 on abortion cases, 12, 15-16, 17, 21, 29,

3 8 , 4 1 - 4 2 , 4 7 , 4 9 - 5 0 , 51, 52, 5 4 - 5 5 , 56-57, 58, 71, 344«

appointment of, 12, 28, 31, 123 background of, 28, 49 Burger's administrative style and, 28, 30 on certiorari process, 30—31 death penalty opposed by, 194 retirement of, 75, 76, 77, 237 Roe opinion written by, 15-16, 29, 38,

4 1 , 4 9 , 5 0 , 5 1 , 5 4 - 5 5 , 7 1 , 7 5 Blackstone, William, 195 Blakenham, John Hare, Lord, 193, 305 Board of Airport Commissioners of the City of

Los Angeles v. Jews for Jesus, Inc., 90-92

Board of Education of West side Community Schools v. Mergens, 91-92

Boies, David, 169

Bollinger, Lee C , 211, 212, 213 Bork, Robert, 13, 14, 15, 70, 272

Supreme Court nomination of, 18—19, 26-27, 82, 266, 280, 296, 313

Bowen, Stuart, 258 Bowers v. Hardwick, 24, 61, 187, 188-89,

190, 223 Brady Bill, 101, 129 Brennan, William J . , Jr., 29, 58, 76, 106,

263 on death penalty, 194 ideological stance of, 11, 28, 44, 263 originalists opposed by, 15 retirement of, 20, 21, 23, 2 4 - 2 5 , 168 on Supreme Court politics, 84—85, 128

Brethren, The (Woodward and Armstrong), 29

Breyer, Joanna Hare, 193 Breyer, Stephen G., 48, 121-22, 203, 246,

288 background of, 6 7 - 6 8 , 8 0 - 8 1 , 85,

192-93, 279, 3 0 2 - 3 , 305 as coalition builder, 128-29, 135, 136 eminent domain case upheld by, 306,

3 0 7 - 8 on federal regulatory power, 129,

130-31 federal sentencing guidelines established

by, 303, 305 on gay rights ruling, 188 gregarious optimism of, 4, 68, 7 9 - 8 0 ,

103-4, 177 on Guantânamo detainees, 321, 322 on gun-possession regulations, 8 3 - 8 4 international involvement of, 192-93,

198, 205, 207 on juvenile death penalty, 195, 196,

305 law clerks for, 128, 156, 320 on Miranda rights, 124 O'Connor's alliance with, 207, 222, 251,

302, 3 0 7 , 3 2 2 at oral argument, 8 3 - 8 4 , 129, 130-31 pragmatic constitutional approach of,

176, 3 0 3 - 5 , 318 on racial concerns, 210, 222 on Stenberg abortion case, 134-35, 136 Supreme Court appointment of, 4,

6 7 - 6 8 , 71, 76, 79, 81, 116, 237, 278

as swing vote, 302, 305—6 on Ten Commandments cases, 303-5 on 2000 election, 151, 162, 165, 167,

168, 169-70, 171, 173, 174, 177 Brown, Janice Rogers, 273, 283, 285 Brown, Michael, 180

Index 357

Brown v. Board of Education, 11, 17, 25, 172

Buchanan, Patrick, 145 Bumpers, Dale, 76 Burger, Warren E., 2, 187

administrative deficiencies of, 2 8 - 2 9 , 30, 31, 263

background of, 28 on religion vs. government, 95 in retirement, 18, 19, 2 3 - 2 4 Supreme Court appointment of, 12,

123 Burger Court, 13, 15

conservative shift of, 36, 60 oral argument at, 46

Bush, Barbara (George W. Bush's daughter), 294

Bush, Barbara (former First Lady), 142, 244

Bush, George H. W., 142, 268, 272 judicial nominees of, 2 0 - 2 1 , 25, 26, 37,

77, 149, 221, 251 1988 election of, 92, 263

Bush, George W., 197, 201, 206, 225, 315

on abortion rights, 260, 265, 312 on affirmative action, 2 1 9 - 2 0 , 221, 224 attorneys general under, 205, 267, 275 conservative base of, 260, 2 6 4 - 6 5 , 280,

291, 296 European criticism of, 184-85 Guantanamo detainees' cases and,

2 2 9 - 3 1 , 2 3 4 - 3 5 , 236, 250, 277, 320, 321

on Hurricane Katrina, 2 7 9 - 8 0 , 285, 292 international institutions devalued by,

2 0 7 , 2 7 7 Iraq war polices of, 228, 282, 292 judicial nominations made by, 6, 240,

241, 252, 253, 2 5 7 - 5 8 , 259-62, 265-70, 2 7 2 - 8 5 , 2 8 7 - 9 9 , 300, 308, 311-13, 314

messianic attitude of, 257, 274 political criticism of, 6, 249, 282, 292 Schiavo legislation approved by, 247,

249 torture policy of, 100, 232-33 2000 election of, 6, 142, 143, 144-54,

157-78, 257, 260, 2 6 4 , 3 5 3 « 2004 election of, 238, 240, 241,

2 6 4 - 6 5 , 2 9 1 , 3 1 4 White House legal staff of, 252, 258,

267, 271, 275 Bush, Jeb, 149, 247 Bush, Jenna, 294 Bush, Laura, 282, 294, 298

Bush v. Gore, 7, 160, 165-77, 238, 243, 2 4 7 , 2 7 1

Article II arguments in, 159, 168, 171, 173

backlash against decision in, 181-82, 1 8 5 , 3 1 8

dissenting opinions in, 171, 173-74, 177

equal protection grounds of, 159—60, 168, 171, 172-74

moderation of rulings after, 182, 227 oral argument in, 167—70 as single instance ruling, 173

Bush v. Palm Beach County Canvassing Board, 150-54, 157, 160, 161-62, 168

butterfly ballot controversy, 145 Bybee, Jay, 233

Calabresi, Steven, 12, 13, 14 California, medical marijuana in, 301—2 California, University of, at Davis, 217,

221 Callahan, Consuelo M., 285 Cannon, James M., 212—13 capital punishment. See death penalty Card, Andrew, 268, 273, 284, 285, 288,

298 Carline, Wallace, 201, 202 Carswell, G. Harrold, 28 Carter, Jimmy, 12, 13, 63, 66, 70, 77, 80,

81, 240 Carter, Terry, 57 Carvin, Michael, 149, 159 CASE, 125, 126 Casey, Robert P., 62

See also Planned Parenthood of Southeastern Pennsylvania v. Gov. Robert P. Casey

Castro, Fidel, 228 Catholic Church, 53, 200 CBS, 233 Centennial Crisis (Rehnquist), 238 Center for Constitutional Rights (CCR),

229, 230 Center for Individual Rights, 211 Central European and Eurasian Law

Initiative (CEELI), 184, 249 certiorari process, 3 0 - 3 1 , 41, 150-52,

156 Chaffee, Lincoln, 312-13 Cheney, Dick, 2 0 1 - 3 , 260, 269, 273,

276-77, 280, 285, 288, 319 Cheney v. United States District Court, 201,

2 0 2 - 3 Child Pornography Prevention Act, 226 Chiles, Lawton, 149

358 Index

China, People's Republic of, U.S. judicial delegation to, 206

Chinnis, Cabell, Jr., 187-88 Churchill, Winston, 104 CIA, White House leak on agent of, 289,

297 Ciongoli, Adam, 317 civil liberties, national security vs., 207,

234, 2 3 5 - 3 6 , 320-22 civil rights, 11, 17, 19, 25

See also racial preferences Civil Rights Act (1964), 19 Clark v. Martinez, 238 Clement, Edith Brown "Joy," 261,

2 7 3 - 7 5 , 2 7 7 - 7 8 , 285 Clement, Paul, 2 3 1 - 3 2 , 320, 321, 348« Clements, Logan Darrow, 307 Clinton, Bill, 125, 213, 242, 308, 320

on abortion rights, 6 2 - 6 3 , 132, 133 conservative opposition to, 88, 112, 202,

247, 258, 271 on death penalty, 194 economic programs of, 64—65, 74 ethical controversies of, 74—75, 117—18,

258 family/medical leave legislation approved

by, 226 impeachment of, 74, 114, 119-20, 264 judicial appointments of, 4, 60, 61,

6 2 - 7 3 , 7 5 - 7 9 , 116, 259, 261, 278, 285, 293, 302

popularity of, 114, 122 sexual harassment lawsuit against,

116-19, 247, 352/z Clinton, Hillary, 67, 75, 271 Clinton v. Jones, 1 1 6 - 1 9 , 1 2 1 Closed Chambers (Lazarus), 155 CLS (Critical Legal Studies), 13 Collins, Susan, 313 Commerce Clause, 82, 84, 86, 9 9 - 1 0 0 ,

1 3 1 , 2 3 7 , 3 0 1 - 2 Committee for Justice, 308 common law, 45 Communism, fall of, 183—84 compelling interest, 218 Concerned Alumni of Princeton, 316 Condon, Charlie, 130-31 Confrontation Clause, 317 Congress, U.S.

campus military recruitment supported by, 308-9

conservative views on limits of, 15, 21, 83, 84, 100, 101, 129-31, 237, 301-2

late-term abortion banned by, 132, 133 mandatory appeals of laws enacted by, 31

military counterterrorist response authorized by, 231, 320, 321

partisan control of, 81, 95, 122, 125, 261

Schiavo legislation of, 247^48, 249, 250 Supreme Court location designated by, 1 See also House of Representatives, U.S.;

Senate, U.S. Constitution, U.S., 13

bicentennial celebration of, 23 Commerce Clause of, 82, 84, 86,

9 9 - 1 0 0 , 131, 237, 301-2 Confrontation Clause of, 317 Due Process Clause of, 45, 150 on election procedures, 150, 152, 159,

168,171 eminent domain powers in, 306, 307 Equal Protection Clause of, 107, 146,

150, 152, 159-60, 168, 171, 172-74, 189, 208, 209

Establishment Clause of, 92, 95, 96, 97, 102, 126, 303, 305

foreign law cited in interpretation of, 193, 197

Free Exercise Clause of, 90, 92 Free Speech Clause of, 97 on impeachment, 119 as model for emerging democracies, 183 original intention of, 15, 21, 44, 55-56,

9 5 - 9 6 , 100, 303, 318 unenumerated rights derived from, 45

Constitution, U.S., amendments to First, 24, 86-87, 90, 91, 94, 96, 97,

127, 234, 303, 308-9 Second, 101 Fifth, 306 Sixth, 317 Eighth, 193, 194, 195, 196 Thirteenth, 265 Fourteenth, 14, 94, 146, 160, 173-74,

191, 265 Constitution in Exile, 82, 100, 237, 245,

2 6 0 , 2 7 2 Cook, Deborah, 261 copyright infringement, 2 4 5 - 4 6 Corbin, Paula. See Jones, Paula Corbin Cornyn, John, 248, 250, 251, 293, 307 Cox, Doug, 159 criminal prosecutions

death penalty in, 3, 7, 12, 186, 192-97, 199, 2 4 2 - 4 3 , 302, 305

faulty convictions in, 194 federal sentencing guidelines in, 226,

303, 305 criminal suspects, interrogation of, 11,

123-24

Index 359

Critical Legal Studies (CLS), 13 Croson case. See Richmond v. Croson Crow, Harlan, 111 Crowe, William J . , 213 cruel and unusual punishment, 193, 194,

195 Cuba, U.S. military in, 228, 230, 235

See also Guantânamo Bay, U.S. detainees held at

Cuomo, Andrew, 64, 71-72 Cuomo, Mario, 6 3 - 6 4 , 65, 67, 7 1 - 7 2 , 73 Currie, Betty, 62, 6 3 - 6 4 , 69 Cutler, Lloyd, 76

D'Amato, Alfonse, 258 Danforth, John, 83, 146 Days, Drew S., Ill, 82-83 Dean, John, 31 death penalty, 3, 7, 12, 186, 192, 199

for juvenile offenders, 193-97, 2 4 2 - 4 3 , 3 0 2 , 3 0 5

Declaration of Independence, 196 DeLay, Tom, 198, 247, 248, 250, 251,

307 Dellinger, Walter, 63, 70 DeMille, Cecil B., 304 Democratic Party

abortion rights supported in, 62, 313 congressional majorities of, 81, 261 judicial appointments and, 7, 61, 63,

313-14 Dennis v. United States, 185 Derrida, Jacques, 13 DeWine, Mike, 314 Dickerson v. United States, 124 Dinh, Viet, 205 Dobson, James C , 20, 93, 137, 199, 241,

289, 291, 297 Doe v. Bolton, 4 9 - 5 0 Dole, Bob, 117 Douglas, William O., 29 Douglass, Frederick, 104, 108, 111, 226 DredScott decision, 53, 136, 265 Driver's Privacy Protection Act (1994),

129, 130 Dudgeon v. United Kingdom, 190 Due Process Clause, 45, 150 Durbin, Dick, 281

Education. See schools Eighth Amendment, 193, 194, 195, 196 Eighth Circuit Court of Appeals, 77 Eisenhower, Dwight D., 11, 28, 29 Eisenstadt v. Baird, 24 elections

of 1 8 7 6 , 2 3 8

of 1980, 12, 88 of 1988, 92, 263 of 1 9 9 2 , 4 1 , 4 2 , 263, 350« of 1994,81 of 1996, 117-18 of 2000, 141, 142-43, 144-54, 155,

157-78, 181, 257, 347» of 2004, 238, 240, 2 6 4 - 6 5 , 291 of 2 0 0 8 , 3 1 3

Electoral College, 176 Eleventh Circuit Court of Appeals, 163 eminent domain, 306—8 enemy combatants, prisoners of war vs.,

2 2 9 - 3 0 , 236 energy task force, lawsuit on records of,

201, 2 0 2 - 3 , 269, 277 Engle v. Vitale, 88 entertainment industry, copyright

infringement in, 2 4 5 - 4 6 Epstein, Richard, 15 Equal Protection Clause, 107, 189

racial preferences vs., 208, 209 2000 Florida election dispute and, 146,

150, 152, 159-60, 168, 171, 172-74 Establishment Clause, 92, 95, 96, 97, 102,

126, 303, 305 Estrada, Miguel, 159, 2 6 1 - 6 2 , 264 European Court of Human Rights, 190,

193 European Union, death penalty ended in,

195 evangelical movement, 86

political influence of, 88, 142, 2 6 4 - 6 5 , 289

public religious expression and, 88, 92, 9 3 - 9 4

Evans, M. Stanton, 112—13 executive power, 3, 21, 260, 269

wartime expansion of, 2 3 1 - 3 2 , 234, 2 3 5 - 3 6 , 250, 277, 315, 320, 321-22

Fabiani, Mark, 164 Falwell, Jerry, 17-18, 20, 88, 106, 142 Family and Medical Leave Act (1993), 226 Farris, Michael P., 198-99 federalism revolution, 101, 129, 226, 237,

3 0 1 , 3 0 2 Federalist Society, 86, 137, 155, 258, 275

core beliefs of, 14, 15, 21, 81, 82, 84, 125

development of, 13, 14, 82 Federal Judicial Center (FJC), 23 Feinstein, Martin, 115 Fifth Amendment, 306 Fifth Circuit Court of Appeals, 199

3 6 0 Index

filibuster rule, 2 6 5 - 6 6 , 273, 278, 296, 313, 314, 316

First Amendment free speech protection of, 24, 90, 91, 94,

97, 127, 234, 3 0 8 - 9 on religion, 8 6 - 8 7 , 90, 91, 96, 303

Fitzgerald, Marta, 110 Fitzgerald, Patrick, 289 FJC (Federal Judicial Center), 23 flag-burning case, 234 Flanigan, Timothy, 2 5 8 - 5 9 Florida, 2000 election controversy in, 143,

144-54, 157-78, 264, 347» See also Bush v. Gore; Bush v. Palm Beach

County Canvassing Board Focus on the Family, 93, 199, 241, 267,

271, 289 Folger, Juliet, 142 Folger, Lee, 142 Ford, Gerald R., 6, 52, 183, 200, 201,

212, 213, 276 Fortas, Abe, 290, 313 Foster, Vince, 62, 63, 65, 68, 71, 74, 75 Fountainhead, The (Rand), 102 Fourteenth Amendment, 14, 94, 146,

160, 173-74, 191, 265 Franklin, Benjamin, 83 Free Congress Foundation, 110 Free Exercise Clause, 90, 92 Free Speech Clause, 97 Friendly, Henry J . , 262-63 Frist, Bill, 268, 313 Frum, David, 290 Fund,John, 112

Gang of 14, 266, 278, 314 Garment, Leonard, 115 Garner, Tyron, 188 gay rights, 7, 24, 61, 172, 186-92, 223,

291, 308-9 General Motors, 213 Geneva Conventions, 229, 230, 269, 277,

321 Gibson, Dunn & Crutcher, 38, 159 Gilbert, Cass, 1, 3, 7, 8, 24 Gillespie, Ed, 293 Gingrich, Newt, 84, 95, 122 Ginsburg, Douglas H., 19, 82 Ginsburg, Jane, 262 Ginsburg, Martin, 69, 244 Ginsburg, Ruth Bader, 97, 121-22, 147,

203, 206, 262, 306 on abortion rights, 70, 71, 134, 135 background of, 4, 6 9 - 7 0 , 71, 72, 83,

173 on Clinton v. Jones, 116, 117

collégial relationships of, 70, 129, 177, 2 0 4 , 2 4 4

death threats made against, 2 4 8 - 4 9 on equal protection, 173-74 on feminist issues, 6 9 - 7 0 , 72, 88, 104 on Guantanamo detainees, 231-32, 321,

322 on juvenile death penalty case, 196 law clerks of, 156 on racial concerns, 210, 219, 220, 222 Supreme Court appointment of, 4,

6 9 - 7 1 , 7 2 - 7 4 , 75, 79, 116 on 2000 election dispute, 151, 162, 167,

170, 173-74, 176 Goldberg, Arthur J . , 80, 193, 279 Goldsmith, Jack, 100 Goldstone, Richard, 185, 186 Goldwater, Barry, 39, 58, 141-42 Gonzales, Alberto R., 261

as attorney general, 267, 275 background of, 267 on Geneva Conventions, 269 on judicial selection team, 259, 260,

269, 273 Supreme Court nomination considered

for, 2 6 7 - 7 0 , 272, 294 as White House counsel, 233, 252, 258,

267, 2 6 9 , 2 7 5 Gonzales v. Raich, 301-2 Gore, Al, 63, 66, 74, 286

in 2000 election, 143, 144, 145, 146, 148-49, 152-53, 154, 157-58, 160, 161, 163, 164, 165, 168, 169, 247, 257, 347«; see also Bush v. Gore

Graham, Billy, 88 Graham, Lindsey, 314, 316 Gramsci, Antonio, 13 Grand Inquests (Rehnquist), 119 Gratz, Jennifer, 211 Gratz v. Bollinger, 211-12, 215, 216,

2 1 7 - 1 8 , 2 2 1 - 2 2 , 269 Gray, C. Boyden, 20, 268, 276, 308 Greenhouse, Linda, 54-55 Greenspan, Alan, 185 Greer, George, 247 Gregory, Roger, 261, 262 Grier, Robert, 24 Griswold, Erwin, 72 Griswoldv. Connecticut, 11—12 Grokster, 2 4 5 - 4 6 Grutter, Barbara, 211 Grutter v. Bollinger, 211-12, 215, 216,

2 1 7 - 2 6 , 228, 233, 243, 269 Gratz case vs., 221-22 O'Connor's opinion on, 2 2 3 - 2 6 oral argument of, 218—21

Index 361

Guantânamo Bay, U.S. detainees held at, 2 2 8 - 3 0 , 2 3 1 , 2 3 2 , 2 3 3 , 2 3 4 , 2 3 5 - 3 6 , 2 5 0 , 2 7 7 , 3 0 2 , 3 1 9 - 2 2

Guinier, Lani, 6 6 , 6 7 , 71 gun control, background checks in, 1 0 1 ,

1 2 9 - 3 0 Gun-Free School Zones Act ( 1 9 9 0 ) , 8 1 ,

8 2 - 8 4 , 1 0 0 Gunn, Will, 3 1 9 - 2 0 Gunther, Gerald, 2 4 4 - 4 5

habeas corpus, suspension of, 3 2 0 - 2 1

Hamdan, Salim Ahmed, 3 2 0 Hamdan v. Rumsfeld, 2 7 7 , 3 1 9 - 2 2 Hamdi, Yaser, 2 3 0 Hamdi case, 2 3 0 , 2 3 1 , 2 3 2 , 2 3 3 , 2 3 5 - 3 6 ,

2 3 7 , 2 4 3 , 277 Hamilton, Jim, 71 Hand, Learned, 7, 56, 2 4 4 , 2 4 5 , 2 6 3 Harkin, Tom, 1 2 0 Harlan, John Marshall, II, 7, 14, 18,

4 4 - 4 5 , 2 4 5 , 2 6 3 Harris, Katherine, 1 4 8 , 1 4 9 , 1 5 2 , 1 5 3 ,

154, 157, 160, 1 6 3 , 1 6 8 Harvard College, admissions policy of,

2 1 7 , 2 2 1 , 2 2 2 , 2 2 4 Harvard Law School, 2 6 2 , 2 6 7 Haskell, Martin, 132 Hatch, Orrin, 6 5 , 6 7 - 6 8 , 7 1 , 7 3 , 8 0 - 8 1 ,

2 4 1 , 2 6 1 , 2 6 4 Hatfield, Mark, 2 4 0 Haynsworth, Clement, 2 8 Hecht, Nathan, 2 8 7 , 2 8 9 , 2 9 1 - 9 2 , 2 9 4 ,

2 9 5 Heflin, Howell, 1 9 Heinz, John, 2 4 0 Helms, Jesse, 2 6 1 Hernreich, Nancy, 6 9 Hersh, Seymour, 2 3 2 Hicks, David, 2 2 9 Hiles, William, 102 Hill, Anita, 2 1 , 2 7 - 2 8 , 3 2 , 3 3 , 3 4 , 3 5 ,

105, 1 1 3 , 1 9 9 Hogan, Thomas, 1 1 5 Hogan & Hartson, 2 6 3 , 2 7 2 holiday displays, religious expression in,

9 6 - 9 8 Holmes, Oliver Wendell, Jr., 5 1 , 5 6 House of Representatives, U.S.

electoral disputes resolved in, 176 impeachment vote in, 1 1 9 xenophobic resolution of, 1 9 8 See also Congress, U.S.; Senate, U.S.

Hubbell, Webster, 7 4 Hume, Brit, 7 3

Hurricane Katrina, 2 7 9 - 8 0 , 2 8 1 , 2 8 2 , 2 8 5 , 2 8 9 , 2 9 2 , 2 9 4

India, judicial system of, 207—8 In re Jane Doe, 2 6 9 - 7 0 international law, 2 0 7

on death penalty, 195 on gay rights, 1 9 0 Geneva Conventions, 2 2 9 , 2 3 0 , 2 6 9 ,

2 7 7 , 3 2 1 U.S. conservative disdain for, 1 9 7 - 9 9 ,

2 4 9 , 2 7 7 , 3 1 8 Internet Tax Freedom Act, 131 interstate commerce, 8 3 - 8 4 , 3 0 2

See also Commerce Clause Iran-Contra affair, 18, 2 0 , 2 6 3 Iraq, U.S.-led conflict in, 2 1 7 - 1 8 , 2 2 8 ,

2 4 9 , 2 8 2 , 2 9 2 Italians, The (Barzini), 3 1 9

Jackson, Reggie, 3 3 Jackson, Robert H., 4 , 8 7 , 8 8 , 1 5 5 , 2 7 9 J . A. Croson Company, 2 0 8 Jefferson, Thomas, 1 9 6 Jeffords, James, 2 6 1 Jehovah's Witnesses, 8 7 Jews for Jesus, 8 9 - 9 0 , 9 1 , 9 4 Jiang Zemin, 2 0 6 Jim Crow laws, 2 0 9 Johnson, Andrew, 1 1 9 Johnson, Douglas, 132 Johnson, Lyndon, 2 5 , 6 1 , 7 3 , 3 1 3 Jones, Edith, 2 7 3 , 2 8 3 , 2 8 5 Jones, Paula Corbin, 7 5 , 1 1 6 - 1 7 , 1 1 8 ,

1 1 9 , 2 4 2 , 2 4 7 , 3 4 6 » judicial independence, 2 3 5 - 3 6 , 2 4 9 - 5 1 judicial restraint, 14, 2 0 , 3 0 6 Judicial Watch, 2 0 1 juvenile offenders, death penalty applied

to, 1 9 3 - 9 7 , 2 4 2 - ^ 3 , 3 0 2 , 3 0 5

Kalhan, Anil, 1 7 4 - 7 5 Katyal, Neal, 3 2 0 , 3 2 1 Kavanaugh, Brett M., 2 5 8 , 2 7 5 Kelley, William, 2 7 5 , 2 8 5 , 2 8 8 Kelo, Susette, 3 0 6 Kelo v. City of New London, 3 0 6 - 8 Kennedy, Anthony M., 1 2 1 , 1 2 9 , 2 4 3 ,

2 4 5 , 3 0 6 , 3 1 8 on abortion cases, 4 7 , 5 1 , 5 2 , 5 3 , 5 4 , 5 5 ,

5 6 - 5 7 , 5 8 , 1 3 2 , 1 3 4 , 1 3 5 - 3 6 , 1 9 1 , 1 9 8 , 3 0 0

appointment of, 5, 2 0 , 52, 1 8 2 , 1 8 3 , 2 9 3

background of, 5, 2 0 , 5 2 - 5 3 , 5 5 , 8 3 , 1 8 2 - 8 3 , 1 8 9

362 Index

chambers of, 57, 147 on church-state cases, 94, 303 on commerce regulation cases, 84, 301 conservative critics of, 198-99, 204, 268 gay rights opinion of, 189—90, 191—92 on Guantanamo detainees, 3 2 0 - 2 1 , 322 internationalism of, 5, 7, 182, 183-85,

186, 190, 192, 195, 196-99, 200, 205, 207, 315, 320-21

on juvenile death penalty, 192, 193-97, 242, 302, 305

law clerks of, 156, 189, 258 at oral argument, 46, 47, 156, 168,

194-96 prose style of, 56, 167, 176, 223 on racial concerns, 210, 221, 222, 226 on 2000 election, 146-47, 150, 151,

152, 153, 162, 166, 167, 168, 169-70, 171, 172, 173, 174, 175, 176, 177, 182, 227

Kennedy, Edward M., 6 7 - 6 8 , 76, 80, 128, 3 1 5 - 1 6

Kennedy, John F., 12, 36, 60, 61 Kennedy, Mary, 183 Kerry, John, 240, 265, 316 King, Martin Luther, Jr., 109 King, Steve, 198 Kinkeade, Ed, 291 Kissinger, Henry, 185 Klain, Ron, 60, 6 1 - 6 2 , 63, 64, 65, 67,

68, 69, 70, 71 Klock, Joseph, 168-69 Knight v. Florida, 193 Kolbert, Kathryn, 4 0 - 4 1 , 42, 4 6 - 4 7 Kolbo, Kirk, 2 1 8 - 1 9 Korematsu, Fred, 234 Korematsu v. United States, 136, 234, 236 Krauthammer, Charles, 2 9 5 - 9 6 Krislov, Marvin, 213 Ku Klux Klan, 96-97

labor protections, 14, 102 Lambeth, Royce, 115 Lamb's Chapel v. Center Moriches Union Free

School District, 9 3 - 9 4 , 95 Land, Richard, 291 Landau, Christopher, 100 Lawrence, John Geddes, 188-89 Laurence v. Texas, 188-92, 194, 216, 222,

223, 233, 243 lawyers, female, 38, 286 Layton, James R., 195, 196 Lazarus, Edward, 155 Leahy, Patrick, 27, 261, 295 Lear, Norman, 313 Lefkow, Joan, 248

Legal Services Corp. v. Velazquez, 167 legislative districting, 172, 312 Lehane, Chris, 164 Leitch, David, 272, 275 Lemon v. Kurtzman, 9 5 - 9 6 , 97 Leno, Jay, 203 Leonard, Leo, 2 7 5 - 7 6 , 288 LePore, Theresa, 144 Lewinsky, Monica, 63, 112, 114, 115, 118 Lewis, Terry, 160-61, 169 Libby, Lewis, 273, 297, 298 libel, 24 Liberman, Lee, 13 libertarian philosophy, 45 Lieberman, Joseph, 278 Limbaugh, Marta Fitzgerald, 110 Limbaugh, Rush, 110, 111 Lincoln, Abraham, 195 Lindsey, Bruce, 63 Lochner v. New York, 14, 15 Locke, Lidell & Sapp, 286 Lopez, Alfonso, Jr., 81-82 Los Angeles International Airport, 90-91 Lott, Trent, 119 Lowell High School, 80 Lucchino, Larry, 77 Luttig, Michael, 2 7 2 - 7 3 , 274, 275, 298 Lynch, Jessica, 218

McCain, John, 266 McCreary County v. American Civil Liberties

Union, 304 McCullough, David, 185 McGeorge School of Law, 5 2 - 5 3 , 183 Mcintosh, David, 13 McLarty, Mack, 78 Madison, James, 84, 195 Mahoney, Maureen, 220—21, 225 Mahoney, Patrick, 247 Malfitano, Cathy, 185 Malveaux, Julianne, 112, 113 Malveaux, Suzanne, 113 mandatory appeals, 31 maquiladoras, 182 March, Barbara Joan, 251 Margolick, David, 167 Margulies, Joseph, 229, 232 marijuana, federal prohibition vs. state

laws on, 301-2 marriage

abortion notification laws and, 37—38, 52, 54, 5 8 - 5 9 , 132, 299-300

gay, 192, 291 Marshall, John, 2 Marshall, Thurgood, 46, 61, 91, 106, 194

as civil rights litigator, 25, 72, 88

Index 363

as liberal justice, 28, 58 retirement of, 21, 23, 25, 26

Martin, Mark, Jr., 104 Massachusetts, gay marriage ruling in, 192 Mathias, Charles, 240 Mauro, Tony, 102, 126 Mayer, Jane, 33 Media Research Center, 112 Meese, Edwin, III, 15, 18, 19, 20, 268,

276, 297 Mehlman, Ken, 293 Merritt, Gilbert S., Jr., 66-67 MGM v. Grokster, 2 4 5 - 4 6 Michigan, University of, 211—12, 213—15,

216-26, 229, 302 Middlebrooks, Donald M., 146, 150, 163 Miers, Harriet E., 252, 283-97

on Alito nomination, 275, 298 background of, 276, 285-87, 290, 293,

295 conservative outcry against, 284, 288,

2 9 0 - 9 1 , 2 9 3 - 9 4 , 2 9 5 - 9 6 on Roberts nomination, 2 7 5 - 7 6 , 277,

2 8 4 - 8 5 , 298 as Supreme Court nominee, 283—84,

285, 287-97, 298, 299, 314 military, U.S.

affirmative action in, 2 1 2 - 1 3 , 214, 219, 220, 224

campus recruiting efforts of, 3 0 8 - 9 Guantânamo detainees held by, 2 2 8 - 3 0 ,

235, 319-22 in Iraq invasion, 218, 228 torture evidence in, 232

Minersville School District v. G obit is, 87 minors

abortion limits for, 37, 269-70, 3 0 9 - 1 0 executions of, 193-97, 2 4 2 - 4 3 , 302,

305 Miranda, Manuel, 2 6 7 - 6 8 , 272, 280, 290,

297, 298 Miranda v. Arizona, 11, 19, 21, 60,

123-24, 312 Mitchell, George, 65, 74, 7 5 - 7 6 Moon, Sun Myung, 65, 267 Moral Majority, 17, 88 Moynihan, Daniel Patrick, 70, 120 Mugabe, Robert, 249 Murdoch, Joyce, 187 Murdoch, Rupert, 111

Nadler, Lee, 7 7 - 7 9 National Abortion Federation, 132 National Bar Association (NBA), 109 National Center for Policy Analysis, 101 Nazism, 87, 184

Neas, Ralph G., 3 1 3 - 1 4 Nebraska, late-term abortion banned in,

133, 1 3 4 , 1 3 5 , 1 3 6 Nelson, Ben, 314 Nelson, Samuel, 24 Nevada v. Hibbs, 226 New Deal, 99, 208, 272, 301, 302 New Hampshire, abortion access

limitations in, 3 0 9 - 1 0 New London, Conn., eminent domain in,

3 0 6 - 8 New York Times Co. v. Sullivan, 11, 12, 24 New York University (NYU), Law School,

108, 206 Nimitz, Chester, 234 Nixon, Richard M., 39, 115, 121, 176,

200, 236, 277 justices appointed by, 12, 28, 31, 123

Norquist, Grover, 293 North, Oliver, 112 Novak, Robert, 267 Nuclear Option, 266, 313, 314 Nussbaum, Bernie, 62, 63, 67, 70, 72, 76

O'Connor, John, 38, 142, 143-44, 206, 215, 216, 2 5 1 - 5 2

O'Connor, Sandra Day, 34, 116, 244 on abortion rights, 18, 38, 3 9 - 4 0 , 47,

49, 5 0 - 5 2 , 53, 54, 55, 5 7 - 5 9 , 132, 134, 135, 136, 191, 300, 3 0 9 - 1 0

appointment of, 5, 1 7 - 1 8 , 29, 40, 293 background of, 5, 3 8 ^ 0 , 51, 83, 147,

2 8 5 - 8 6 , 299 centrist moderation of, 7, 40, 96, 99,

128, 136, 171, 176, 181, 188-89, 204, 208, 216, 245, 305, 318

on commerce regulation issues, 8 2 - 8 3 , 84

on death penalty, 194 death threats against, 2 4 8 - 4 9 , 250-51 eminent domain dissent of, 306-7 feminist sensibility of, 38, 52, 5 8 - 5 9 ,

206, 282, 286, 300 on Guantânamo detainees, 2 3 5 - 3 6 , 277,

320, 322 international legal work of, 184, 2 0 5 - 6 ,

2 0 7 - 8 , 2 4 9 - 5 0 judicial independence stressed by,

2 3 5 - 3 6 , 249-51 law clerks of, 39, 46, 156, 187, 205, 216 marriage of, 6, 38, 143, 215, 251-52,

253 on national security vs. civil liberties,

2 0 7 , 2 5 0 at oral argument, 46, 8 2 - 8 3 , 94, 134,

169, 172-73, 216, 218, 221

364 Index

politics of, 6, 7, 141-42, 143, 144, 167, 205, 208, 249, 253

on racial concerns, 2 0 8 - 1 0 , 212, 214, 216-17, 218, 221, 222, 2 2 3 - 2 6 , 302

Rehnquist's friendship with, 5, 121, 242, 252, 279

on religious-issue cases, 91—92, 94, 9 6 - 9 8 , 102, 208, 304

retirement of, 6-7, 144, 2 5 1 - 5 3 , 258, 266, 268, 272, 282, 284, 285, 287, 2 9 8 - 9 9 , 300, 302

on Roberts Court, 3 0 0 - 3 0 1 , 308, 309 on September 11 terrorism, 205, 206-7 as swing vote, 2, 7 - 8 , 48, 95, 129, 135,

159, 213, 217, 243, 251, 302, 318 on 2000 election, 151, 153, 154, 159,

160, 161, 162, 166-67, 169-70, 171, 172-73, 174, 176, 177, 181-82, 227

Oklahoma City bombing, 194 Olson, Barbara, 271 Olson, Theodore B., 159, 272, 273, 275

on affirmative action, 220, 224 on Guantanamo prisoners, 2 3 0 - 3 1 , 235 on 2000 election dispute, 146, 150, 152,

153, 160, 168, 169-70, 172, 271 "one person, one vote" principle, 172, 312 Orange Revolution, 249 originalism, 15, 18, 44, 5 5 - 5 6 , 9 5 - 9 6 ,

100, 303, 318 Owen, Priscilla, 261, 265, 266, 273, 283,

292

Packwood, Robert, 240 Padilla, Jose, 230, 231 Padilla case, 230, 2 3 1 - 3 2 , 233, 236, 238 Parker, Barrington, Jr., 261, 262 Pataki, George, 73 patriotism, 87 Pennsylvania, abortion limits in, 16—17

See also Planned Parenthood of Southeastern Pennsylvania v. Gov. Robert P. Casey

People, 34-35 People for the American Way (PFAW),

3 1 3 - 1 4 Pfizer, 306 Phillips, Carter, 121, 122, 2 1 3 - 1 4 , 220,

224 Pinette, Vincent, 96 Planned Parenthood of Southeastern

Pennsylvania v. Gov. Robert P. Casey, 44, 45, 5 1 - 5 9 , 62, 75, 88, 132, 136, 198, 312

certiorari process on, 4 0 - 4 3 , 350« oral argument of, 46-47 on personal autonomy, 191

Roe tied to, 4 1 - 4 2 , 4 6 ^ 7 , 49, 52, 5 4 - 5 5 , 5 7 - 5 8

spousal notification in, 37-38, 52, 54, 5 8 - 5 9 , 299-300

undue burden standard in, 5 0 - 5 1 , 58, 310

pledge of allegiance, 87 Powell, Colin L., 219 Powell, Lewis F., 18, 23, 123, 251, 272

affirmative action opinion of, 217, 222, 223, 224, 225, 226

on Burger Court, 12, 29, 46 career background of, 293 on homosexuality, 187-88, 189 as swing vote, 2, 19, 24, 219

Price, Deb, 187 Princeton University, 316 prisoners of war, 229—30

See also Guantanamo Bay, U.S. detainees held at

privacy rights, 11, 12, 19, 56 abortion tied to, 15-16, 45, 49, 71 on DMV information, 129-31 in sexual behavior, 189-90, 191

private property, eminent domain vs., 3 0 6 - 8

Putin, Vladimir, 185, 274

"Questions Presented," 41, 42

Rabin, Yitzhak, 74 racial preferences, 3, 13, 19, 25, 26,

108-10, 312 in government contracts, 2 0 8 - 1 0 , 211 in military, 2 1 2 - 1 3 , 214, 219, 220, 224 in school admissions, 7, 211-12,

2 1 3 - 1 5 , 2 1 6 - 2 6 , 229, 269, 302, 316 Raich, Angel McClary, 301 railroad workers, injury payments to, 102 Rand, Ayn, 102 Rasul, Shafiq, 230, 232 Rasul v. Bush, 2 3 0 - 3 1 , 232, 233, 234,

235, 2 3 6 , 2 3 7 Rather, Dan, 143 Reagan, Michael, 112 Reagan, Ronald, 12, 20, 26, 50, 80, 108

conservative agenda of, 11, 14, 15, 16, 1 7 , 3 1 2

justices nominated by, 5, 17—20, 40, 82, 1 8 2 , 1 8 3

legal staff of, 263, 276, 280, 299, 311, 312

Reeder, Joseph, 213 Regents of the University of California v.

Bakke, 217, 218, 220, 221, 222, 223, 224, 226

Index 365

Rehnquist, Natalie Cornell, 28, 32, 33, 38 Rehnquist, William, 127, 186-87, 303

on abortion cases, 12, 41, 42, 47, 51, 52, 53-54, 55, 58, 134, 135, 344«

administrative style of, 2 9 - 3 0 , 31, 4 1 - 4 2 , 114-15, 121, 122, 129, 151, 175, 185, 215, 238, 242, 308

background of, 4, 31, 32, 33, 83, 279, 293

chief justice appointment of, 5 , 1 8 , 28, 32, 116, 252-53

on Clinton, 116, 117, 118, 119, 120 conservative agenda of, 5, 18, 44,

122-23, 131-32, 226, 2 3 7 , 3 1 2 death of, 3-6, 279, 280, 281 on death penalty, 194, 2 4 2 ^ 3 federalism opposed by, 84, 131, 208,

226, 245, 301, 302 on Guantânamo cases, 235, 236, 237,

238 on gun regulation, 83, 84, 100, 301,

302 health problems of, 31-32, 114,

238-39, 240, 242, 245, 246, 252, 272, 279, 308

law clerks for, 3, 32, 122, 156, 198, 2 2 0 - 2 1 , 263, 279, 317

on liberal law clerks, 155 marriage of, 32, 33, 34 on Miranda rights, 123-24 monthly poker game of, 115-16 opinions assigned by, 51, 102, 131, 135,

136 physical appearance of, 31, 120-21 on racial concerns, 107, 210, 222, 226 replacements considered for, 272, 273,

276, 280, 281 retirement resisted by, 237—38, 252,

2 5 8 , 2 7 9 on Texas anti-homosexual law, 188, 189 on 2000 election, 151, 154, 162, 166,

170, 171, 172, 173, 175, 176, 227 on votes vs. opinions, 237

Rehnquist Court collégial relationships of, 35, 48,

128-29, 237 ideological balance of, 2, 60, 128, 227,

237, 243 O'Connor's prominence on, 38, 59, 95,

159 oral argument of, 46, 117, 118, 129,

130-31 Reid, Harry, 283, 284, 287, 293 religion, 95, 102

First Amendment on, 8 6 - 8 7 , 90, 91, 96, 303

public sphere expressions of, 3, 7, 8 6 - 9 8 , 260, 272, 3 0 3 - 5 , 312

relisting, 4 1 - 4 2 Reno, Janet, 62, 6 8 - 6 9 , 70 Reno v. Condon, 129—31 reproductive rights

birth control and, 12, 19 See also abortion rights

Republican Party as congressional majority, 95, 122, 125 conservative wing of, 11, 141-42, 284 evangelical Christian bloc of, 17-18, 20,

141, 264-65 international law denigrated in, 197-98 judicial appointments and, 7, 17—20, 22,

137, 241, 2 6 5 - 6 6 , 284 moderate members of, 240

Reynolds v. Sims, 172 Rice, Condoleezza, 185 Richards, Ann, 62 Richardson, Bill, 66 Richmond v. Croson, 2 0 8 - 1 0 , 216, 218 Rider, Sally, 242 Riggins, John, 142 Riley, Richard, 65 Roberts, Jack, 278 Roberts, John G., Jr., 295, 315, 321

on abortion rulings, 281, 300, 309, 312

administrative style of, 316—17 as associate justice nominee, 273, 274,

2 7 5 - 7 6 , 277, 278, 279, 280 background of, 149, 262, 301 chief justice appointment of, 6, 280-82,

2 8 4 - 8 5 , 287, 288, 290, 3 0 0 - 3 0 1 , 319

conservative ideology of, 263, 2 7 5 - 7 6 , 277, 280, 298

judicial minimalism espoused by, 308, 318

law career of, 3, 221, 2 6 2 - 6 4 , 272, 278, 280, 299, 300

military tribunals approved by, 277 Solomon Amendment upheld by, 308—9 on 2000 election, 149, 150, 159, 264

Roberts, Leo, 305 Robertson, Pat, 20, 88, 9 2 - 9 3 Roev. Wade, 29, 70, 71, 281

conservative goal of reversal on, 3, 16, 20, 21, 35-37, 42, 47, 48, 51, 54, 55, 57, 58, 75, 99, 124, 241, 265, 266, 272, 291, 294, 295, 299, 300, 312, 313, 314, 315

fetal viability issues in, 49, 50, 58 privacy rights asserted in, 15-16, 49, 71,

191

366 Index

state abortion restrictions vs., 17, 18, 4 0 - 4 1 , 4 6 - 4 7 , 4 9 , 52, 310

votes on, 12, 17, 60 Romer v. Evans, 172 Roosevelt, Franklin D., 14, 99, 203, 208 Roper v. Simmons, 194-97, 198, 242-43 Rosen, Jeffrey, 123 Rosenthal, Charles A., Jr., 188 ROTC, 214, 316 Rove, Karl, 273, 288, 289, 291, 292, 298 Rudman, Warren, 43, 260 Rumsfeld, Donald, 229, 230, 249, 319 Rushton, Sean, 308 Russia, judiciary harassed in, 250 Rust v. Sullivan, 43 Ruth, Babe, 147 Rutledge, Wiley, 279

Salzburg Seminar, 184, 190 Santa Fe Independent School District v. Doe,

126-28 Sauls, N. Sanders, 157, 158, 160 Scalia, Antonin, 115, 128, 131, 243, 259,

2 6 0 , 3 0 6 on abortion rights, 15, 47, 51, 55, 56,

57, 58, 133-34, 136, 197 appointment of, 5, 14, 18, 191 background of, 13, 14, 18, 55, 76, 83,

199-200, 319 Catholicism of, 55, 200, 3 1 8 - 1 9 on Cheney energy task force case, 202—4 as chief justice candidate, 276, 280,

317 on Clinton v. Jones, 116, 117 collégial relationships of, 55, 70, 77,

121, 129, 177, 191, 204, 318, 319 on congressional power limits, 83, 84,

129-30, 301 on death penalty for minors, 194, 195,

196, 197,243 as duck hunter, 199, 2 0 0 - 2 0 2 , 203, 204 on Guantanamo cases, 235, 236, 321,

322 on gun control case, 101, 129-30 law clerks of, 156, 2 7 3 , 2 7 5 legacy of, 317-18, 319 Miranda ruling opposed by, 124 in oral argument, 46, 55, 83, 127,

133-34, 169, 195, 196, 317 as originalist, 44, 55-56, 9 5 - 9 6 , 192,

225, 236, 290, 303, 318 on racial concerns, 107, 210, 212, 213,

219, 221, 222, 223, 226 on religion in public sphere, 9 5 - 9 7 ,

127, 303 on Texas sex prohibitions, 188, 191-92

on 2000 election dispute, 151, 153-54, 162, 163-64, 166, 170, 171, 174, 176, 181, 227, 243

Scalia, Maureen, 200 Schiavo, Michael, 246-47 Schiavo, Terri, 2 4 6 - 4 8 , 249, 250, 307 Schindler, Mary, 247, 248 Schindler, Robert, 247, 248 Schlafly, Phyllis, 198, 267 Schloss Leopoldskron, 184, 185 schools

gun-free zones near, 81, 8 2 - 8 4 , 100 pledge of allegiance in, 87 racial preferences in, 7, 211—12, 2 1 3 - 1 5 ,

2 1 6 - 2 6 , 229, 269, 302, 316 religious expression in, 86, 88, 9 1 - 9 2 ,

9 3 - 9 4 , 95, 126-28, 312 segregation prohibited in, 11

Schwarzkopf, H. Norman, 213 Second Amendment, 101 segregation, 11, 17, 19, 25 Seidman, Ricki, 62, 68 Seitz, Virginia, 2 1 3 - 1 4 Sekulow, Gary, 125-26 Sekulow, Jay, 8 8 - 9 4 , 98, 125-28, 137,

211, 265, 272, 307 background of, 8 8 - 9 0 free speech arguments of, 9 0 - 9 2 , 9 4 - 9 5 ,

126-28 on Supreme Court appointments, 241,

276, 2 7 7 - 7 8 , 297 Sekulow, Jordan, 125, 126 Sekulow, Logan, 126 Sekulow, Pam, 125, 126 Senate, U.S.

filibuster rule of, 2 6 5 - 6 6 , 278, 296, 313, 316

impeachment trial in, 119-20 partisan control of, 261, 263, 264,

312-13 Senate Judiciary Committee, chairmanship

of, 2 4 0 - 4 1 , 261, 313 Sentelle, David, 115 September 11, 2001, terrorist attacks of,

205, 206-7, 229, 231, 271, 320 700 Club, The, 92 sex discrimination, 38, 52, 70, 71, 104,

286 Shalikashvili, John, 213 Sharpton, Al, 174 Shelton, Hugh, 213 Sheppard, Morris, 76 Shores, Janie, 67 Sierra Club, 201, 202, 203 Sixth Amendment, 317 slavery, 2, 53, 265

Index 367

Smith, William French, 18 Snowe, Olympia, 313 Snyder, Alan Howard, 90 Sobota, Luke, 154 Social Security, 274, 282 sodomy, criminalization of, 24, 187,

188-90, 216, 223 software, copyright infringement of,

2 4 5 - 4 6 Solomon Amendment, 3 0 8 - 9 Souter, David H., I l l , 116, 117, 122,

137, 141, 181, 196, 203, 306 on abortion cases, 4 2 - 4 3 , 45, 47, 4 8 - 4 9 ,

51-52, 53, 54, 55, 56, 58, 132, 134, 136, 191

appointment of, 2 0 - 2 1 , 43, 44, 2 5 9 - 6 0 , 268, 293

Brennan's influence on, 24-25 career of, 2 0 - 2 1 , 44, 83, 177-78, 243 on copyright infringement case, 2 4 5 ^ 6 eccentricities of, 5, 43, 243, 244 on Guantânamo detainees, 320, 321,

322 on habeas corpus suspension, 320 humor of, 83, 168-69, 246 judicial philosophy of, 7, 4 4 - 4 5 , 51, 54,

245 law clerks of, 156 New Hampshire home of, 4 - 5 , 44, 244,

307 on racial concerns, 210, 219, 220, 222 reclusive tendency of, 44, 52, 128, 244 on religion in public sphere, 127 on 2000 election dispute, 151, 162, 167,

169-70, 171, 174, 177 South Carolina, federal privacy protection

opposed by, 129-31 Specter, Arlen, 120, 2 4 0 - 4 1 , 265, 266,

281, 287, 2 9 4 - 9 5 , 313 speech, freedom of, 3 0 8 - 9

libel vs., 11, 12, 24 pledge of allegiance vs., 87 public religious expression as exercise of,

9 0 - 9 2 , 9 4 - 9 5 , 97, 126-28 Sperling, Gene, 64 Stallone, Sylvester, 33 Stanford v. Kentucky, 194 stare decisis, 45', 51, 54, 102-3, 124 Starr, Kenneth, 40, 119, 220, 258, 263,

271 states' rights, 101, 1 2 9 - 3 1 , 1 4 2 , 237 Stenberg, Don, 133 Stenberg v. Carhart, 133—36 Stephanopoulos, George, 64, 71-72 Stevens, John Paul, 48, 129-30, 141, 167,

223, 239, 242

on abortion cases, 21, 42, 47, 52, 56-57, 58, 134, 135

background of, 83, 147, 2 3 3 - 3 4 , 279 on church-state cases, 97, 127 on Clinton v. Jones, 116, 117, 118 in conference discussions, 29 on congressional power under Commerce

Clause, 301-2 on death penalty case, 196 on eminent domain, 306 on flag burning, 234 on Guantânamo detainees, 231, 233,

234, 2 3 5 , 2 3 6 , 3 2 1 law clerks of, 103, 156, 187 on racial concerns, 210, 219, 220,

2 2 2 - 2 3 retirement of, 237 as senior associate justice, 239, 242, 243 Supreme Court appointment of, 6, 212 on 2000 election dispute, 151, 154,

162-63, 168, 169, 170, 171, 174, 176-77

Stewart, Martha, 39 Stewarr, Potter, 12, 14, 17, 18, 29 Stipanovich, Mac, 148 Stoessel, Mary Ann, 142-43, 167 Stoessel, Walter, 142, 167 Stone, Harlan Fiske, 209 strict constructionists, 260, 290 strict scrutiny, 2 0 9 - 1 0 , 218 Stuart, Gilbert, 200 Sullivan, Kathleen, 2 4 4 - 4 5 Sununu, John, 21 Supreme Court, U.S.

annual budget request of, 198 building renovation for, 2 1 5 - 1 6 caseloads of, 3 0 - 3 1 , 215, 263 chief justices of, 2 8 - 3 2 , 253, 272,

281-82 clerk's office of, 152 conservative agenda for, 2—3, 7, 21, 22,

75, 136-37, 241, 253, 258, 272 deaths of sitting justices of, 4 death threats made against, 54, 2 4 8 - 4 9 ,

250-51 entrance stairs of, 1, 3, 6, 7 expedited consideration by, 151, 152 female justices on, 17-18, 70, 206,

2 8 2 - 8 3 , 285 financial disclosure statements of, 111,

243 foreign courts' citation of, 208 former judges appointed to, 63, 292—93 Hispanic candidates for, 262, 267—70 impeachment threats against, 198-99,

2 4 8 , 2 5 0

3 6 8 Index

international influences on, 185-86, 190, 195, 196-99, 208, 315

law clerks at, 155-57, 1 7 4 - 7 5 , 186-88, 2 7 9 , 3 1 7

numbers of justices on, 237 opinion assignments on, 28, 29, 30, 102,

135, 222-23 oral argument at, 46, 106, 130, 219 precedent reversal by, 87, 102—3, 190 recusals from cases of, 104, 2 0 2 - 3 retired justices of, 2 3 - 2 5 , 238 Schiavo case declined by, 248 seniority traditions of, 30 on 2000 election dispute, 149-54, 155,

1 5 7 , 1 5 9 - 7 8 , 181-82, 347« unanimity on, 242, 308 voting procedures of, 30 weekly conferences of, 28—30, 308

Sweet, Laurel J . , 319 Swift, Charles, 3 1 9 - 2 0

Talkin, Pamela, 252 Ten Commandments, 86, 87, 303-5 terrorism

civil liberties vs. national security responses to, 207, 234, 2 3 5 - 3 6 , 269

detainee treatment and, 228-37, 319-22 September 11 attacks of, 205, 206-7,

229, 231, 271, 320 terrorism suspects, torture of, 100 Texas, Ten Commandments park

monument in, 303, 304—5 Texas, University of, affirmative action

admissions to, 212 Texas Supreme Court, abortion restriction

cases in, 2 6 9 - 7 0 Thatcher, Margaret, 207 Third Circuit Court of Appeals, 3 7 - 3 8 ,

40, 41 Thirteenth Amendment, 265 Thomas, Clarence, 48, 9 9 - 1 1 3 , 122, 124,

128, 2 3 5 , 2 3 6 on abortion cases, 21, 27, 35, 36, 47, 57,

58, 134, 135, 136 background of, 26, 99, 104, 105-7, 108,

111-12, 295 church-state case votes of, 127, 303 on Commerce Clause case, 84, 100-101 conservative stance of, 21, 26, 56,

9 9 - 1 0 2 , 107-11, 116, 128, 188, 199, 225, 260, 271, 318

on death penalty, 193, 194 on Guantanamo detainees, 321, 322 law clerks hired by, 100-102, 103, 258 media relations of, 32, 33-34, 105, 106,

111, 112-13

as originalist, 21, 56, 100, 225, 303 personality of, 99, 103-4, 105, 106-7,

187 precedent dismissed by, 102—3 on racial issues, 26, 106, 107-10, 210,

220, 222, 226 sexual harassment charges against,

2 7 - 2 8 , 3 2 - 3 3 , 35 Supreme Court appointment of, 4,

2 1 - 2 2 , 2 5 - 2 8 , 3 2 - 3 5 , 83, 99, 105, 1 0 7 , 1 0 8

on 2000 election dispute, 151, 162, 166, 170, 171, 176, 181, 227

Thomas, Jamal, 104, 107 Thomas, Virginia, 34, 110, 112 Thornburgh, Richard, 20 Thornburgh v. American College of

Obstetricians and Gynecologists, 17, 18, 19, 20, 21

Thurmond, Strom, 80—81 torture, 100, 232, 233, 234, 354» Totenberg, Nina, 113 Tribe, Lawrence, 153, 169 Truman, Harry, 203 Tsongas, Paul, 77 Turner, Ed, 175

Ukraine, Orange Revolution in, 249 Umin, Steven, 7 7 - 7 8 unenumerated rights, 45 United States v. Carotene Products, 209 United States v. Lopez, 8 1 - 8 5 , 9 9 - 1 0 0 , 237,

301-2 United States v. Nixon, 176

Van Orlen v. Perry, 304 Vinson, Fred, 279 Violence Against Women Act, 131 Virginia, University of, student

publications at, 94 Virginia Military Institute, 104

Walker, Helgi, 258 war crimes, 232 warrantless wiretapping, 315 Warren, Earl, 2, 11-12, 13, 14, 15, 17,

19, 24, 63 Miranda decision of, 60, 123, 312

Washington, Booker T., 104, 107 Washington, George, 200, 242 Washington Times, 65, 66, 267 Watergate tapes, 12 Waters, Craig, 158 Wayne, James M., 24 Weare, N.H., eminent domain vote in,

307

Index 369

Webster v. Reproductive Health Services, 51, 53, 55

Weicker, Lowell, 240 welfare laws, constitutionality of, 167 Welters, Tony, 108 Westside High School, 91 West Virginia Board of Education v. Barnette,

87 Weyrich, Paul, 110, 267, 293 White, Byron R., 30, 46, 199

on abortion, 12, 22, 36, 47, 51, 58, 60 background of, 60, 63, 279, 293 death of, 168 on gay rights, 187, 188 retirement of, 6 1 - 6 2 , 63, 66, 67, 75, 79 Supreme Court appointment of, 12, 36,

60 2000 election argument attended by,

153, 167-68 Whitehead, Tom, 115

Whitewater investigation, 74, 258 Whittemore, James D., 248 Wilkinson, J . Harvie, III, 272, 273, 274 Williams, Edward Bennett, 77 Williams, Jack, 39 Wilson, Valerie Plame, 289 wineries, shipping restrictions on,

3 0 5 - 6 women's liberation movement, 69—70, 72 Wood, Kimba, 69 Woodward, Bob, 29 World War I, political dissidents

prosecuted during, 234 World War II, Japanese Americans in, 234

Yale Law School, 12, 13, 105, 106 Yeltsin, Boris, 64 Yoo, John, 100, 233

Zimbabwe, judicial independence in, 249

ABOUT THE AUTHOR

Jeffrey Toobin is a staff writer at The New Yorker, senior legal analyst at C N N , and the author o f such bestsellers as Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President, and The Run of His Life: The People v. 0. J. Simpson.