The Nine Read online

  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. This approach is also consistent with the underlying principles of the country.” As a black man, he was entitled to these views. “I knew who I was and needed no gimmicks to affirm my identity. Nor, might I add, do I need anyone telling me who I am today. This is especially true of 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, obviously, to anger some. Nor have I come to defend my views, but rather to assert my right to think for myself, to refuse to have my ideas assigned 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 consigned the unquestioned opinions of 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. No one quarreled with Thomas’s right to his own views; no one said black 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.” It was the substance of 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. He quickly resumed circulating in more familiar, and comfortable, territory.

  On May 28, 1994, Clarence and Ginni Thomas hosted, and he performed 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 of conservative think tanks and lobbying operations. His first television appearance after his confirmation took place on National Empowerment Television, an offshoot of the Free Congress Foundation, which was run by Thomas’s old friend Paul Weyrich, a founding father of the New Right. Thomas visited Weyrich’s office several times and spoke at the group’s fifteenth anniversary in 1993. 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 of the most powerful people in the country, Thomas paid tribute to himself for having the courage to agree with them. The theme of 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 of consequence, and who challenge accepted wisdom, should expect to be treated badly. Nonetheless, they must stand undaunted. That is required. 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. “If one wants to be popular, it is counterproductive to disagree with the majority. If one just wants to tread water until the next vacation, it isn’t worth the agony. If one just wants to muddle through, it is not worth it. In my office, 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 psychic, 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. But Thomas made far more financially out of his status as a justice, and a folk hero, than any of his colleagues. He received a $1.5 million book advance from the publishing company owned by Rupert Murdoch, the media entrepreneur who has been a supporter of conservative causes. Rehnquist and Breyer also wrote books, but neither received anything like this kind of money. In touting 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 interviewed in the more sympathetic environment of Fox News. (The book, My Grandfather’s Son, was published in the fall of 2007. Thomas promoted the book among sympathetic interviewers, and it sold well.)

  Thomas received even more direct financial benefits from his job. According to the financial disclosure statements the justices are required to submit, Thomas received $42,200 in gifts over a six-year period. This was more than seven times as much as any of his colleagues, whose gifts tended to consist of crystal figurines and plaques. (Most of 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 of 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 Bible once owned by Frederick Douglass that was valued at $19,000. (Crow also donated $175,000 for a new Clarence Thomas wing at the local library in Thomas’s hometown of Pin Point, Georgia.) Another executive gave Thomas $5,000 to help pay for his grandnephew’s education. A Nebraska businessman gave Thomas tires worth $1,200. Under federal law, the justices can accept unlimited gifts from individuals 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 worlds were reinforced by his wife, Virginia, who was already a well-known lobbyist for the U.S. Chamber of Commerce when they married in 1987, but who came into her own in the 1990s as a senior aide to Richard Armey, the combative Texas Republican who served as House majority leader. In that role, during the 1996 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 of Washington labor bosses,” or “examples of dishonesty.” Later, she became director of executive branch relations at the Heritage Foundation.

  The best reflection of Thomas’s unique status in Washington, and on the Court, may have come at an unusual event in December 1999. Most of the justices attended awards dinners at places like universities and bar associations, but it seems likely that none of his colleagues ever attended an event like this one.

  “We are here this evening to acknowledge the remarkable work of some of the more egregious members of the liberal press corps,” said M. Stanton Evans to open the festivities at the annual dinner of the Media Research Center, a self-styled conservative watchdog organization, at the Monarch Hotel in Washington. The format for the evening was a mock awards banquet “honoring” what the hosts believed were examples of biased reporting. A procession of 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.” The tone of the evening was raucous and cheerful. “There is not a vast right-wing conspiracy,” said John Fund, of 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 of the evening came with the presentation of the “I’m-a-Compassionate-Liberal-but-I-Wish-You-Were-Dead A
ward for Media Hatred of Conservatives.” This award was presented to an obscure columnist named Julianne Malveaux, for saying in a cable television interview about Thomas, “I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do.”

  Thomas had been laughing so hard early in the evening that Evans, the MC, said to him, “Justice Thomas, you are a great audience, too.” When 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 9:30, and I usually spend this night working. But we realized that this was such an important occasion that we decided it was time to put aside our personal obligations, the Constitution, the work of the Court, our little nephew, to attend…. I am pleased to accept this award on behalf of Suzanne Malveaux.” Thomas had mixed up Suzanne, a CNN 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 Nina Totenberg would also share in it,” he said. Totenberg, the NPR 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.”

  But 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 of 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

  CARDS TO THE LEFT

  The trajectory of the Lewinsky scandal in the Supreme Court reflected its course in the nation at large. The initial disclosures about the president’s behavior inspired widespread shock and outrage, and the Court took a harsh initial tack against Clinton. But 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 of the public shifted. So did the Court’s. As Clinton rode a wave of popularity into the end of his term, the Court turned sharply in his direction. This happened, in part, because the majority of the Court in these years always tried to remain close to the center of popular opinion. But there was another reason the Court moved left in the late nineties, and it had to do with the changing role of Chief Justice Rehnquist.

  The chief was seventy-three years old in 1998, 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. But 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 of the time. He wasn’t going to change anyone’s mind—not in conference and not in written opinions. So, subtly but unmistakably, Rehnquist stopped trying. He became, in these years, primarily an administrator, committed more to moving cases efficiently through the pipeline than to shaping their result at the finish. He had reduced the job to its essentials: a morning meeting with his law clerks to talk about the progress of opinions, a meeting with his administrative assistant to address issues affecting the federal judiciary, lunch at his desk, review of paperwork after lunch, and limousine home by 4:00 p.m.

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

  Bob Bennett and Bill Rehnquist were still raising young children when they met on the grounds of the McLean Swim and Tennis Club in 1972. Nixon had just appointed Rehnquist to the Supreme Court, and Bennett had recently left the United States attorney’s office and was beginning a career in private law practice that would make him one of 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 of his life, Rehnquist rarely missed one.

  The 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 of constitutional law at Georgetown; Martin Feinstein, the director of the Washington National Opera; Tom Whitehead, a Washington businessman; and eventually Nino Scalia. Other players were Bob’s brother Bill Bennett, the former drug czar and conservative activist, and local federal judges David Sentelle, Thomas Hogan, and Royce Lamberth. The 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 because Bob Bennett was generally the only Democrat at the table. The existence of the game was no secret, but the members avoided attention. After the Washington lawyer Leonard Garment talked about the game to a reporter, he was no longer invited to play.

  The location of the poker game rotated among the homes of the players, and Rehnquist always took a turn hosting at his modest town house in suburban Arlington, Virginia. The game unfolded according to a precise ritual. From 7:00 to 7:45 p.m., the players would arrive and eat sandwiches provided by the host. The game would last from 8:00 to 11:00. Small talk was kept to a minimum. (Robert Bork 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 chief justice in 1986, the other players started calling him “Chief.” They also deferred to him to resolve any disputes that came up during the game. The stakes were low but not penny-ante; a player could win or lose about a hundred dollars in a night. (When Rehnquist was nominated to be chief justice, Bennett discreetly assigned an associate at his firm to research whether the game ran afoul of any gambling ordinances in the District of Columbia, Virginia, or Maryland. The search revealed no problems, and no one ever raised the issue anyway. This was fortunate for Rehnquist, because he also ran the Court’s betting pools on NCAA basketball, NFL football, and the Kentucky Derby.)

  In May 1994, three months after Paula Jones made her first accusations of improper conduct by Clinton, the president hired Bennett to defend him in the sexual harassment lawsuit she had just filed. The players in the poker game generally avoided the subject of the Supreme Court, but Bennett thought the matter was so high-profile—and so likely to wind up in front of the justices—that he decided to withdraw from the game for the duration of his representation of the president. Scalia in particular tried to talk Bennett out of leaving, but Bennett thought the caution was prudent. He was correct, as on January 13, 1997, he found himself standing before the nine justices to argue the case of Clinton v. Jones.

  At first the Jones case united the justices—against Clinton. The case gave most of them an outlet for their long-standing personal distaste 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 consul of Rome,” the chief replied dryly. O’Connor was almost physically repelled by the sordid nature of Jones’s allegations against Clinton; his behavior, as alleged, defined her all-purpose expression of 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 of the case resembled a trailer-park sitcom more than a Supreme Court case. In
brief, Jones alleged that on May 8, 1991, she was sitting at the registration desk for Governor Clinton’s Quality Management conference at the Excelsior Hotel in Little Rock. Clinton saw Jones, then named Paula Corbin, and asked one of his state troopers to invite her up to a room he was using in the hotel. 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 horror. (For his part, Clinton always said he had no memory of meeting the young woman and denied any misconduct.) Jones 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.

  The legal issue before the justices was Bennett’s argument that the magnitude of Clinton’s duties as president entitled him to a stay of all proceedings in the Jones case, including discovery and depositions, until he left office. Or, as Bennett told the justices, “The President of 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 president.” Ginsburg made the same point, that the subject of the lawsuit was “conduct unrelated to his office.” Souter said he thought that, at a minimum, discovery unrelated to the presidency should proceed.