The Nine (2 page)

Breyer’s twitchy exuberance posed a contrast to the demeanor of his fellow Clinton nominee, from 1993, Ruth Bader Ginsburg, standing three steps above him. At 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 genuinely bereft to see Rehnquist go. Their 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 of legal procedure. Always a shy outsider, Ginsburg knew that the chief’s death would send her even farther from the Court’s mainstream.

The casket next passed what was once the most recognizable face among the justices—that of Clarence Thomas. His unforgettable confirmation hearings in 1991 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 of a photographer or the gaze of a video camera drew a scornful glare. Thomas openly, even fervently, despised the press.

David H. Souter should have been next on the stairs. When Rehnquist died, Souter had been at his home in Weare, New Hampshire, but he hadn’t received word until it was too late to get to the morning’s procession. 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 altogether, more like the eighteenth century. Souter detested Washington, enjoyed the job less than any of his colleagues, and cared little what others 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. He 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 1987, Kennedy had initially seemed the most conventional, even boring, of men, the Sacramento burgher who still lived in the house where he grew up. But it turned out the prototypical country club Republican possessed a powerful wander-lust, a passion 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. He had taken the position on the Court that Rehnquist left in 1986, when Reagan made him chief, and the two men had been judicial soul mates for a generation. An opera lover, Scalia was not afraid of powerful emotions, and he wept openly at the loss of his friend. Scalia had always been the rhetorical force of their counterrevolutionary guard, but Rehnquist had been the leader. At 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 of 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 graduate 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 1969, joining the Court in 1972.

Nine years later, Ronald Reagan made O’Connor the first woman justice. Her long history with Rehnquist might 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 of an ideological transformation in the law and who came, even more than the chief, to dominate the Court. And though her grief 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 slipping further into the grip of Alzheimer’s disease. Losses enveloped O’Connor—a dear old friend, her treasured seat on the Court, and, worst of all, her beloved husband’s health.

And there was something else that drew O’Connor’s wrath, if not her tears: the presidency of George W. Bush, whom she found arrogant, 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 White House, and now, to her dismay, she was handing over her precious seat on the Court for him to fill.

Finally, at the top of the stairs, was John 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 1975, with his thick glasses, white hair, and ever-present bow tie. Now eighty-five, he had charted an independent course from the beginning, moving left as the Court moved right but mostly moving according to his own distinctive view of the Constitution. Respected by his colleagues, if not really known to them, Stevens always stood apart.

The strain from the march up the forty-four steps showed on all the pallbearers except one. The day before carrying Rehnquist into the Supreme Court for a final time, John 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, especially compared with his future colleagues.

The 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 of stability in membership, but Rehnquist’s and O’Connor’s nearly simultaneous departures suggested a particularly dramatic one—generational, 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 1991, it had consisted of either seven or eight nominees of Republican presidents and just one or two Democratic nominees. But as the core of 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 of judicial moderation like John Marshall Harlan II and Learned Hand, almost immediately turned into a lost cause for the conservatives. Like travelers throughout history, Kennedy was himself transformed by his journeys; his internationalism translated into a more liberal approach to legal issues. Above all, though, it was O’Connor who shaped the Court’s jurisprudence 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 ranging from abortion to affirmative action, from executive war powers to the election of a president. Some might believe Cass Gilbert’s marble steps really did protect the justices from the gritty world of the Capitol. But the Rehnquist Court—the Court of
Bushv. Gore
—dwelled in the center of American political life.

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

These decisions—the legacy of the Rehnquist Court—came about largely because for O’Connor there was little difference between a judicial 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. No one ever pursued centrism and moderation, those passionless creeds, with greater passion than O’Connor. No justice ever succeeded more in putting her stamp on the law of a generation. But the unchanging facade of Cass Gilbert’s palace offers only the illusion of permanence. O’Connor’s legacy is vast but tenuous, due mostly to her role in 5–4 decisions, which are the most vulnerable to revision or even reversal with each new case.

That process—the counterrevolution that had been stymied for twenty years—has now begun.

PART

ONE

1

THE FEDERALIST WAR OF IDEAS

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

Earl Warren, who served as chief justice of the United States from 1953 to 1969, exerted a powerful and lasting influence over American law. The former California governor, who was appointed by Dwight D. Eisenhower, put the fight against state-sponsored racism at the heart of his agenda. Starting in 1954, with
Brown v. Board of Education
, which outlawed segregation in public education, the justices began more than a dozen years of sustained, and usually unanimous, pressure against the forces of official segregation. Within the legal profession in particular, Warren’s record on civil rights gave him tremendous moral authority. Warren and his colleagues, especially William J. Brennan Jr., his close friend and strategist, used that capital to push the law in more liberal directions in countless other areas as well. On freedom of speech, on the rights of criminal suspects, on the emerging field of privacy, the Warren Court transformed American law.

To be sure, Warren faced opposition, but many of his Court’s decisions quickly worked their way into the permanent substructure of American law.
New York Times Co. v. Sullivan
, which protected newspapers that published controversial speech;
Miranda v. Arizona
, which established new rules for interrogating criminal suspects; even
Griswold v. Connecticut
, which announced a right of married people to buy birth control, under the broader heading of privacy—all these cases, along with the Warren Court’s many pronouncements on race, became unassailable precedents.