The Nine (40 page)

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 observation wasn’t just a gesture of deference to educational institutions but also a way of doing what O’Connor often tried to do, which was limit the reach of the Court’s opinion. She was taking pains to approve affirmative 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 argument—the 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 of 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 might observe (correctly) that there were big differences between a military service academy and a law school, and thus find no relevance of one to the other; but O’Connor did just the opposite. Quoting the brief again, she wrote, “We 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 influential amicus brief in the history of 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 of an administration from which she was growing more and more estranged.

The draft by O’Connor’s clerk did not address her last question to Mahoney—about when affirmative action would no longer be needed. O’Connor regarded race consciousness as nothing more than a necessary, or at least permissible, evil. She did not want to see it go on forever. But how could she or anyone else fix an ending date?

After twenty-two years on the Court, many of them as the most important vote, O’Connor had an abundance of self-confidence, so she simply made up a time limit. She told a clerk to write an insert: “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

The imposition of 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 activist judges. From the vague commands of the Constitution, she was extrapolating not just a legal rule but a deadline as well. To originalists 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. By what right does an unelected judge impose such detailed rules on a society? And if 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 25 years. Nor is the Court’s holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time.” Moreover, if O’Connor could legislate in this matter on affirmative action, what was to stop her colleagues from establishing codes of behavior in other areas? The answer, of course, was that the only restraints on the judge in such circumstances are his or her conscience and savvy.

And that, ultimately, is the best defense of what O’Connor did. On affirmative action, she picked a result, and reached a compromise, that was broadly acceptable to most Americans. There was no formal limit on her power, but O’Connor’s extraordinary political instincts let her exercise her authority in a moderate way. In some basic, almost primal manner, O’Connor understood that twenty-five more years of racial preferences seemed the right amount of time. It is a scary prospect to consider what other justices in the Court’s history, including some of 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.

The Michigan cases were something of a rout for the conservatives. Kennedy wrote a separate opinion in
Grutter
saying that he, like Powell in
Bakke
, approved of the use of 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 of race in admissions always violated the Constitution.

Thomas, probably the nation’s most famous beneficiary of affirmative action, wrote a passionate opinion denouncing the practice. He quoted the words of his hero Frederick Douglass: “What I ask for the negro is not benevolence, not pity, not sympathy, but simply
justice
. The 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 opinion represented only a fringe view—on the Court and in the nation at large.

Among the justices, especially Kennedy and O’Connor, the post–
Bush v. Gore
move to the left continued—and to some extent accelerated—after
Grutter
. Even Rehnquist almost brought what remained of his own federalism revolution to a close; he wrote the opinion in
Nevada v. Hibbs
, which upheld the authority of Congress to pass the Family and Medical Leave Act of 1993, a central accomplishment of the Clinton administration.

Then, in a complex series of cases, the Court struck down state and then federal criminal sentencing guidelines, against the wishes of the Bush administration. By a 6–3 vote, it overturned the Child Pornography Prevention Act, which made it a crime to create or possess “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.

After 2000, the majority in
Bush v. Gore
—Rehnquist, O’Connor, Scalia, Kennedy, and Thomas—might have taken full control of the Court, but something close to the opposite took place. Their coalition crumbled. In the 2002 term, only five of the fourteen 5–4 decisions were decided by the bloc that prevailed in
Bush v. Gore
; in the 2003 term, it was nine of nineteen; in the 2004 term, it was four of twenty-two such cases. At first it was the legacy of
Bush v. Gore
that turned O’Connor and Kennedy toward their more liberal colleagues. Later, it was the Bush administration itself.

18

“OUR EXECUTIVE DOESN’T”

T
he burst of confidence in the military, and in the Bush administration, following the invasion of Iraq in the spring of 2003 was short-lived. A month after the argument in
Grutter
, on an aircraft carrier off the coast of San Diego, the president addressed a cheering crowd underneath a banner that read “Mission Accomplished.” But almost from that moment, the fortunes of 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 experience 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 of the administration’s broader war on terrorism reached the Supreme Court. They concerned an idyllic stretch of Caribbean coastline known as Guantánamo Bay.

After American and Cuban forces evicted the Spanish from Cuba in 1898, the United States military remained on forty-five square miles along the southern coast of the island. The American presence became official with a treaty signed by the two nations in 1903, eventually setting an annual rent at $4,085. To this day, the American government offers payment to the Cuban government every year, but during the nearly five decades that Fidel Castro has been in power, his government has accepted it only once.

The war in Afghanistan created an unprecedented level of activity at Guantánamo Bay and gave it international notoriety. On January 10, 2002, the military began moving prisoners there from Afghanistan, and all the armed services, not just the navy, were asked to run Joint Task Force Guantánamo. In a press conference that same day, Donald Rumsfeld, the secretary of 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 of each prisoner.

A chorus of international condemnation—from the United Nations, the European Union, and the Organization of American States, among others—cried out against the American government. But within the United States, in the fevered aftermath of the September 11 attacks, the Guantánamo detention and interrogation facility drew little notice and less controversy—at first.

The prisoners at Guantánamo, 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 of the worst,” as one American official put it. The notion that such despised and dangerous individuals might be able to challenge their incarceration 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. But in early 2002, the family of an Australian national named David Hicks who was being held in Guantánamo 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 CCR, which stands well to the left of the American Civil Liberties Union in the spectrum of liberal legal interest groups, chose to challenge the American detention policy. In the early stages of the suit, the lawyers in charge could not have differed more from those directing the Michigan effort on affirmative action, with its roster of retired generals, corporate leaders, and a former Republican president. Led by a Minneapolis lawyer named Joseph Margulies, the CCR team sought assistance from several major Washington lawyers and law firms and were turned down by all. Guantánamo seemed nearly a fringe cause.

But as the case moved through the federal courts, and the near hysteria of the September 11 aftermath faded, the claims for the Guantánamo prisoners looked more plausible. The Bush administration had created an unusual legal category for those held on the American base. They were not criminal defendants, subject to the protections of the U.S. Constitution, but neither were they prisoners of war, whose treatment had long been governed by the Geneva Conventions.

Rather, the Guantánamo detainees were labeled “enemy combatants,” who could be held and interrogated until the war on terror was over—that is, indefinitely. One reason the military refused to treat the Guantánamo detainees as POWs was because, under the conventions, such prisoners may not be interrogated. And Guantánamo was designed 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 CCR lawsuit, the plaintiffs had no right even to file the case. Because the detainees were non-American citizens held in Cuba and that nation had “ultimate sovereignty” over the base, the lawsuit was the equivalent of a foreigner’s filing a case from an overseas battlefield—something that American courts never allowed. The lower courts agreed and ultimately dismissed the case, which came to be known as
Rasulv. Bush
. Ironically, Shafiq Rasul himself was among the first prisoners released from Guantánamo, 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 of American citizens named Yaser Hamdi and Jose Padilla, worked their way toward the Court at the same time.