The Nine Page 24

  The emotional temperature of 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 opinions seethed with frustration at the procedural roadblocks his liberal adversaries—chiefly Brennan and Marshall—had managed to create. In this respect, Bill Clinton was in ideological accord with the chief justice, and in the aftermath of the Oklahoma City bombing, the president signed the Antiterrorism and Effective Death Penalty Act of 1996. The 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 of people freed from prisons, often from death row, because of faulty convictions rose. (Many of these exonerations took place because of the use of new DNA technology.) By the time Bush became president, public support for the death penalty, death sentences by juries, and the number of executions were all falling. Executions had peaked in 1999 at ninety-eight and has more or less trended down ever since.

  Even without outright opponents of the death penalty like Brennan, Marshall, and (eventually) Blackmun, the Court in the Bush years imposed new limits on executions. In 2002, the Court said judges alone, without the concurrence of 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 of Rehnquist, Scalia, and Thomas—sometimes joined by Kennedy or O’Connor, who was an especially strong supporter of the death penalty—but the shift on the Court as a whole was unmistakable.

  Even in light of these developments, Kennedy’s performance at the oral argument of Roper v. Simmons was stunning.

  “Let’s focus on the word ‘unusual.’ Forget ‘cruel’ for the moment,” Kennedy said to James R. Layton, the local prosecutor in Jefferson City, who was defending the Missouri law. “We’ve seen very substantial demonstration that world opinion is against this, at least as interpreted by the leaders of the European Union. Does that have a bearing on what’s ‘unusual’? Suppose it were shown that the United States were one of the very, very few countries that executed juveniles, and that’s true. Does that have a bearing on whether or not it’s ‘unusual’?”

  No, said Layton. “The decision as to the Eighth Amendment should not be based on what happens in the rest of the world. It needs to be based on the mores of American society.”

  Playing his familiar populist card, Scalia jumped in, asking, “Have the countries of the European Union abolished the death penalty by popular vote?” Plainly baffled by this detour into foreign lands, Layton said he didn’t know. But Scalia did know—and pointed out that European elites had abolished the death penalty in their countries even though “public opinion polls in a number of 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 of these countries that objects to it. But let us assume that it’s an accepted practice in most countries of the world not to execute a juvenile for moral reasons. That has no bearing on whether or not what we’re doing is ‘unusual’?”

  None, said Layton.

  Breyer came to Kennedy’s aid, pointing out that James Madison and his colleagues drew on foreign sources in writing the Constitution. 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 William 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 happens abroad would not be relevant here?” (As usual at oral argument, the lawyer was largely a spectator as the justices talked to one another.)

  Kennedy turned the question around: “Do we ever take the position that what we do here should influence what people think elsewhere?” Kennedy had spent much of the previous decade trying to influence “what people think” as a missionary for constitutional democracy and the rule of law. But like many other missionaries, Kennedy turned out to be as changed by his journeys as were the people he was trying to convert.

  “You thought that Mr. Jefferson thought that what we did here had no bearing on the rest of the world?” Kennedy went on.

  Layton said he couldn’t speak for Thomas Jefferson.

  Ginsburg suggested the Declaration of Independence supplied the answer. “But did he not also say that to lead the world, we would have to show a ‘decent respect for the opinions of mankind’?”

  All this talk about the international exchange of ideas was more than Scalia could take, so he cut it off with a wisecrack: “What did John Adams think of the French?” The audience laughed.

  But Kennedy had made his position clear. The 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 national consensus against the death penalty for juveniles,” even though twenty states still allowed such executions to take place. But the heart of 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 reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” he wrote. “This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility.” The evidence from foreign countries may not have been “controlling,” but it was obviously highly important to Kennedy and his colleagues in the majority. He noted that the United States had only dismal company in countries that had executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. But since then, even those countries had renounced 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 of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Kennedy ended his opinion in Roper with one of his orotund, and not entirely comprehensible, perorations: “Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

  It was left to Scalia, once again, to ask what Kennedy’s embrace of foreign sources really meant. “Though the views of our own citizens are essentially irrelevant to the Court’s decision today,” he noted with characteristic asperity, “the views of other countries and the so-called international community take center stage.” But Kennedy had not put forth any sort of standard by which to determine when the United States should follow the rest of the world and when it should not. Scalia went through a long list of areas where American law differed from others—reliance on juries, the exclusionary rule, separation of 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 of only six countries that allow abortion on demand until the point of viability.”

  With some force, Scalia argued that the Court’s grazing among foreign laws was really just an excuse to shape the law “to the justices’ own notio
n of how the world ought to be.” In concluding he warned, “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

  The response to this pointed debate over the influence of foreign law showed how much Kennedy had strayed from the values of the contemporary Republican Party. Like O’Connor, Kennedy had come of age at a time when the GOP stood for low taxes and limited government, but he increasingly saw social issues define his party. As Kennedy soon learned, hostility to international law—and international institutions like the United Nations—had also become a central tenet of the GOP. In his earnest, even naive way, Kennedy believed his recognition of foreign law amounted to a corollary to Bush’s evangelism for spreading freedom around the world. “If we are asking the rest of the world to adopt our idea of 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.

  In truth, all Kennedy was doing was showing how out of touch he was with the modern Republican Party. After Roper, fifty-four conservatives in the House of Representatives sponsored a resolution criticizing the use of foreign sources by the Supreme Court, and Representative Steve King, a Republican from Iowa, conducted an investigation of the justices’ foreign trips, based on the disclosure forms that they are required to file. “Between 1998 and 2003, the justices took a total of ninety-three foreign trips,” King said. “And the implication is that there are at least a couple of justices, chiefly Kennedy and Breyer, who are more enamored of the ‘enlightenment’ of the world than they are bound by our own Constitution.”

  Every year, one or two justices testified before Congress in support of the Court’s annual budget request, and Kennedy often took on the assignment. In his testimony after Roper, he mentioned in passing 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 Justice Kennedy writing decisions based upon international law, not the Constitution of the United States. That’s just outrageous, and, not only that, he said in session that he does his own research on the Internet. That 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 of the Court’s term, Kennedy gave a pointed retort to DeLay. For a reunion of Chief Justice Rehnquist’s law clerks, he made a brief video during which he was taped sitting at his computer. He said that he was doing a little research. He signed off by saying good-bye in several languages.

  The video allowed Kennedy to shrug off DeLay’s criticism with a cheery wink. But there was no mistaking the fact that the Bush presidency was poisoning the atmosphere around the Court, if 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. The backlash against him was fierce. For a time, Souter had been the principal Republican target, but Kennedy’s authorship of high-profile opinions had made him the public symbol of conservative betrayal.

  At a conservative conference in Washington shortly after Roper, Phyllis Schlafly, the veteran antifeminist leader, said Kennedy’s decision was “a good ground for impeachment.” Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy “should be the poster boy for impeachment,” for citing international law. “If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well.” Given Kennedy’s role on the Court in the culture war cases, it wasn’t just hyperbole when James Dobson, the founder and director of Focus on the Family, called Kennedy “the most dangerous man in America.”

  But the right had no monopoly on partisan vitriol aimed at the justices. The left, too, had its favored target. To be sure, Thomas was still widely despised, because of Anita Hill 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. It was Scalia—brazen, outspoken, gleefully confrontational—who was the conservative whom liberals loved to hate.

  The battle with his critics that meant the most to Scalia himself had a peculiar origin. In 1990, Byron White wearied of his assignment as the justice supervising the Court of Appeals for the Fifth Circuit. Based in New Orleans, the Fifth Circuit covers the part of the South where many of the nation’s executions are scheduled. The resulting cases produce many emergency applications to the Court, and the circuit justice must administer the flow of paper to his colleagues; White no longer wanted the responsibility for keeping track of it. The job of 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. He was born in Trenton, in 1936, and raised in Elmhurst, Queens, as the only child in a thoroughly urban (and urbane) family. His father, a translator and a professor of 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 of his face.” Scalia received a traditional Catholic school education, with four years of Latin and three years of Greek. He attended Georgetown University, excelled on the debate team, and graduated first in his class. His valedictorian address offered hints of both his literary style and his interests. “Our days were spent in hunting; but our prey was more elusive and more valuable than any forest deer or mountain bear or prairie buffalo,” he said. “For we were seekers of the truth.” He 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 of several leading law schools. He spent the seventies and eighties shuttling between academia and increasingly important jobs in the Justice Department of the Nixon and Ford administrations. Along the way, he and his wife, Maureen, had nine children, one of whom became a priest.

  It would be a mistake, however, to regard Scalia as just a bookish man. He was on the rifle team in high school (commuting on the New York subway with a .22 carbine), played the piano, sang in school shows, and fought for his intellectual beliefs with a nearly physical intensity. To his father, unchanging certainty about religion or politics, no matter what the current intellectual fad, was a sign of strength, not weakness. Scalia was only too happy to embrace the verities of Catholic doctrine and reject the moral relativism of the modern world. “For the son of God to be born of 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 of the Knights of Columbus, the Catholic fraternal organization. “God assumed from the beginning that the wise of the world would view Christians as fools, and he has not been disappointed.”

  Scalia relished the skepticism of critics. “Be fools for Christ,” he implored his fellow believers. “Have the courage to suffer the contempt of the sophisticated world.” Scalia’s mindset, of course, was precisely the opposite of Kennedy’s; unlike his colleague, Scalia courted the scorn of 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 of taxidermy, with his kills mounted and displayed on the walls. For behind his desk, Scalia borrowed a magnificent Gilbert Stuart portrait of George Washington from the Smithsonian. But the painting was overshadowed by the gigantic head of an elk whose nose reached practically across the room as if to make the acquaintance of the first president. And on the small table in front of the sofa, where Scalia entertained visitors, was a smaller b
ut even more provocative display—a wooden duck, a reminder that the justice had become perhaps the best-known duck hunter in the country.

  Dick Cheney was the executive branch counterpart to Nino Scalia, an object of loathing and suspicion among their political adversaries. The case before the Supreme Court that brought them together revealed 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 of business. Two public interest groups, Judicial Watch, a conservative outfit, and the Sierra Club, the liberal environmental organization, sued the vice president, demanding that he release all of the work papers and communications produced by the task force. Cheney refused, claiming that the executive 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 forgotten, its recommendations largely ignored. The fact that Cheney’s group conferred with many energy companies was widely known, completely expected, and entirely proper. Not even the plaintiffs seriously suggested that the task force records would reveal any illegality or impropriety. The case was simply part of 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 provided services to oil rigs in the Gulf of Mexico. In 2002, Scalia learned that Carline was an admirer of the vice president, whom Scalia knew from their days together in the Ford administration. At Carline’s suggestion, Scalia invited Cheney to join them. Given the complexity of everyone’s schedules, the trip could not be arranged until January 2004. By coincidence, three weeks before the trip, the Court granted cert on Cheney’s appeal of the case involving the records of his energy task force.