The Nine Read online

  CONTENTS

  Title Page

  Dedication

  Prologue: The Steps

  PART ONE

  1. The Federalist War of Ideas

  2. Good versus Evil

  3. Questions Presented

  4. Collision Course

  5. Big Heart

  6. Exiles Return?

  7. What Shall Be Orthodox

  8. Writing Separately

  9. Cards to the Left

  10. The Year of the Rout

  PART TWO

  11. To the Brink

  12. Over the Brink

  13. Perfectly Clear

  PART THREE

  14. “A Particular Sexual Act”

  Photo Insert

  15. “A Law-Profession Culture”

  16. Before Speaking, Saying Something

  17. The Green Brief

  18. “Our Executive Doesn’t”

  19. “A Great Privilege, Indeed”

  PART FOUR

  20. “ ‘G’ Is for God”

  21. Retiring the Trophy

  22. “I Know Her Heart”

  23. Dinner at the Just Desserts Café

  24. “I Am and Always Have Been…”

  25. Phanatics?

  Epilogue: The Steps—Closed

  Afterword to the Anchor Edition

  Acknowledgments

  Notes

  Bibliography

  Photo Credits

  About the Author

  Also by Jeffrey Toobin

  Praise for Jeffrey Toobin’s The Nine

  Copyright

  To Adam

  PROLOGUE

  THE STEPS

  The architect Cass Gilbert had grand ambitions for his design of a new home for the Supreme Court—what he called “the greatest tribunal in the world, one of the three great elements of our national government.” Gilbert knew that the approach to the Court, as much as the structure itself, would define the experience of the building, but the site presented a challenge. Other exalted Washington edifices—the Capitol, the Washington Monument, the Lincoln Memorial—inspired awe with their processional approaches. But in 1928 Congress had designated for the Court a cramped and asymmetrical plot of land, wedged tightly between the Capitol and the Library of Congress. How could Gilbert convey to visitors the magnitude and importance of the judicial process taking place within the Court’s walls?

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

  That, in any event, was the theory. The truth about the Court has always been more complicated.

  For more than two hundred years, the Supreme Court has confronted the same political issues as the other branches of government—with a similar mixed record of success and failure. During his long tenure as chief justice, John Marshall did as much as the framers of the Constitution themselves to shape an enduring structure for the government of the United States. In the decades that followed, however, the Court fared no better than presidents or the Congress in ameliorating the horror of slavery or avoiding civil war. Likewise, during the period of territorial and economic expansion before World War I, the Court again shrank from a position of leadership, mostly preferring to accommodate the business interests and their political allies, who also dominated the other branches of government. It was not until the 1950s and 1960s, and the tenure of Chief Justice Earl Warren, that the Court consistently asserted itself as an independent and aggressive guarantor of constitutional rights.

  For the next thirty years, through the tenures of Chief Justices Warren E. Burger and William H. Rehnquist, the Court stood nearly evenly divided on the most pressing issues before it. On race, sex, religion, and the power of 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 of the American people. The result was a paradox. Like all their predecessors, the justices belonged to a fundamentally antidemocratic institution. 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 of the people. Yet the touch-stones of the years 1992 to 2005 on the Supreme Court were decisions that reflected public opinion with great precision. The opinions were issued in the Court’s customary language of legal certainty—announced as if the constitutional text and precedents alone mandated their conclusions—but the decisions in these cases probably would have been the same if they had simply been put up for a popular vote.

  That, now, may be about to change. Through the tense standoff of the Burger and Rehnquist years, a powerful conservative rebellion against the Court was building. It has been, in many respects, a remarkable ideological offensive, nurtured at various times in such locales as elite law schools, evangelical churches, and, most importantly and most recently, the White 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 intended to assist African Americans. Speed executions. Welcome religion 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. Within one vote, to be precise.

  The Court by design keeps its operations largely secret from the outside world, but there are occasions when its rituals offer a window into its soul. One such day was September 6, 2005, when the justices gathered to say good-bye to William Rehnquist, who had died three days earlier.

  Rehnquist had had 105 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. The eight of them gathered around the representatives from the funeral home and asked questions with the kind of intensity and precision that the chief used to demand of lawyers arguing in front of him. Who would stand where? Should they pause between steps or not? Two feet on each step or just one? Only one of them had been a pallbearer before, and he had words of warning for his colleagues. “Be careful,” said John G. Roberts Jr., who had clerked for then associate justice Rehnquist from 1980 to 1981. “It’s harder than you think.”

  At precisely ten the pallbearers and the hearse met on First Street, in front of Cass Gilbert’s processional steps. The casket was like Rehnquist himself—plain and unadorned. The 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. The soft sun of 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 of the other law clerks stood in silence to the left. On the right were the justices themselves. It had been eleven years since there w
as a new justice, the longest period that the same nine individuals had served together in the history of the Supreme Court. (It had been five decades, since the death of Robert H. Jackson, in 1954, that a sitting justice had died.) The justices lined up according to the Court’s iron law of seniority, with the junior member toward the bottom of the stairs and the senior survivor at the top.

  The casket first passed Stephen G. Breyer, appointed in 1994 by President Bill Clinton. Such ceremonial duty ill suited Breyer, who still had the gregarious good nature of a Capitol Hill insider rather than the grim circumspection of 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 enjoyed it more.

  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 fro
m 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