The Oath: The Obama White House v. The Supreme Court Page 7

  These years were a crucial time in the history of international judiciary. The fall of Communism in the Soviet Union and Eastern Europe set off a flurry of constitution writing and the appointment of judges to enforce the laws. American Supreme Court justices were coveted participants in the process, and no one relished the opportunities more than Kennedy. (O’Connor did a lot of work in this area, too.) Salzburg in particular became a critical crossroads in this process, with much of the action taking place at the Schloss Leopoldskron, a former palace that was used as a set in several scenes of The Sound of Music. The schloss was the headquarters of the Salzburg Seminar, a venerable international exchange program.

  Kennedy spent his summers in the company of judges from around the world, who came to tap his expertise and enthusiasm. But the influence went two ways. Kennedy was and remained a conservative on most subjects, but the issues on which he moved left invariably coincided with the views of the foreign judges he met. In Europe and most of the civilized world, for example, the death penalty is viewed with revulsion. (Even to be considered for membership in the European Union, a country must abolish the death penalty.) Gay rights and even same-sex marriage have made progress faster in Europe than in the United States. By the time he reached the Supreme Court, Kennedy was well to the left of his near contemporary Scalia on the death penalty and gay rights.

  Foreign judges also embraced international institutions and international law with far greater enthusiasm than their American counterparts. As McCain noted in his Wake Forest speech, Kennedy earned the enmity of American conservatives by citing the laws of other nations in his opinion in Roper v. Simmons, which struck down the death penalty for juveniles. By 2005, the international judicial elites viewed George W. Bush with special disdain, abhorring the Texas swagger that produced, among other things, the Iraq War. As Kennedy knew better than most, judges around the world held a special reverence for the Geneva Conventions, which attempt to regulate the treatment of prisoners in wartime. And the Geneva Conventions were at the heart of Hamdan v. Rumsfeld.

  In Hamdan’s case before the Supreme Court, a key issue was whether the American government was required to treat the detainees in accord with the Geneva Conventions. Paul Clement, who had been promoted to solicitor general, said in the oral argument, “I don’t think he’s protected by the Geneva Conventions, but that’s largely because he chose not to comply with the basic laws of war.” In public and private, the Bush administration had described the detainees not as soldiers but as terrorists.

  Souter pressed Clement on the conventions. “Well, do you agree that it applies as part of the law of war?” he asked.

  “Well, I don’t think, consistent with the position of the executive, that the Geneva Convention applies in this particular conflict,” Clement answered.

  “But that, I guess, is the problem that I’m having,” Souter replied.

  Making his first argument before the justices in Hamdan, Neal Katyal insisted the government had to prove that its procedures complied with the Geneva Conventions. He clearly impressed Kennedy, who played his words back to Clement, saying, “He says there is a structural invalidity to the military commission.… And the historic office of habeas”—a legal action asking to free a wrongfully imprisoned individual—“is to test whether or not you are being tried by a lawful tribunal. And he says, under the Geneva Convention, as you know, that it isn’t.”

  “Well, and we disagree with those claims,” Clement replied.

  A 4–4 vote would have affirmed Roberts’s judgment on the D.C. Circuit, but Kennedy voted with the liberals, and the military commissions were struck down. Stevens wrote the opinion for the Court and, with characteristic directness, stated that the United States must comply with the Geneva Conventions and, accordingly, the law “requires that Hamdan be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Kennedy wrote a concurring opinion that was, in his fashion, more expansive: “Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.” Either way, the point was the same—another clear rebuke to the Bush administration’s methods of conducting war on terror.

  With the exception of Hamdan, Roberts’s first year was generally a quiet one. As a rule, most of the eighty or so cases a year heard by the Supreme Court attract little attention from the general public. They involve the interpretation of federal statutes, the criminal sentencing practices of the federal courts, or disagreements between circuit courts on any number of issues. There are always several tax cases, a few bankruptcy matters, and a case or two involving the unique legal status of Native Americans. Among law clerks (and occasionally among justices), these low-profile controversies are known, uncharitably, as “dogs.”

  Sometimes, though, there are cases that are so powerfully obscure, so utterly insignificant while at the same time so maddeningly complex, that the justices (and certainly their clerks) stare at the briefs and wonder—what were we thinking? Why? Why? Holding the briefs at some distance, like a mysterious discovery from the back of the refrigerator, the denizens of One First Street, steeling themselves against boredom and fatigue, begin reading.

  One such dog—a veritable Great Dane—hit the Court’s docket toward the end of Roberts’s first year. Each petitioner for certiorari to the Court includes a section called Questions Presented, which the lawyers use to define the issues in a way that will entice the justices to accept the case for review. In this one, the questions were:

  1. What is the scope of the probate exception to federal jurisdiction?

  2. Did Congress intend the probate exception to apply where a federal court is not asked to probate a will, administer an estate, or otherwise assume control of property in the custody of a state probate court?

  The what exception? The stupefying dullness of these questions, and of the case as a whole, was apparent to all, and the matter of Marshall v. Marshall would have passed into obscurity but for one thing. The legal name of the plaintiff may have been Vickie Lynn Marshall, but she was better known by her stage name—Anna Nicole Smith.

  It later became a kind of sport among the law clerks to speculate whether any of their bosses had heard of Anna Nicole before the briefs in the case first crossed their desks. The consensus (for all nine) was no. Her renown, such as it was, appeared so far on the cheesy end of the celebrity spectrum that it was indeed possible that her name did not ring a bell. Breyer cheerfully acknowledged to his clerks that he had never heard of her, but he also enjoyed a good laugh more than most of his colleagues, so he started referring to her, and her case, as “the stripper.”

  This was not precisely accurate. Her name at birth was Vickie Lynn Hogan, and she was the second child born to her sixteen-year-old mother. At the age of nineteen, with a child of her own, she became an exotic dancer (not a stripper, exactly) in one of Houston’s lesser clubs. To add to her appeal, according to a biographer, she had several rounds of plastic surgery “to create her infamous 42DD bra size, the product finally of two implants on each side and a total of three pints of fluid.” She also began using the name Anna Nicole Smith.

  One day a man in a wheelchair named J. Howard Marshall II stopped in to watch her at a place called Gigi’s. Many years earlier, Marshall had been a professor at Yale Law School, where he had cowritten scholarly articles with his faculty colleague William O. Douglas. Marshall left academia for the oil business and became an early investor in the company later known as Koch Industries (which would later have its own place in Supreme Court history). At the time he was wheeled into Gigi’s, Marshall was worth as much as $1.6 billion.

  The first time they met, Marshall and Anna Nicole spent the night together, and they married two years later, on June 27, 1994. Marshall was eighty-nine, and Anna Nicole twen
ty-six. He died thirteen months later, on August 4, 1995. In the meantime, Anna Nicole had become famous as a model and an actress of sorts as well as the subject of an early reality television series.

  Marshall did not mention Anna Nicole in his will, and he left virtually his entire fortune to his son E. Pierce Marshall. (Another son, J. Howard Marshall III, was also excluded from the will.) A protracted legal struggle over the estate ensued in courts all over the United States. Notwithstanding the omission in the will, one court awarded Anna Nicole $474 million, which another knocked down to $88 million, which still another reduced to zero. Five years after Marshall’s death, a federal court in California and a state court in Texas both asserted jurisdiction over the will, and it was this dispute that eventually wound up before the justices. When they heard arguments in this arcane matter of federal jurisdiction, the courtroom was nearly as crowded as it had been for Bush v. Gore.

  Responding to the buzz in the audience, the two justices most inclined to show off, Scalia and Breyer, dominated the argument with questions. Breyer may not have heard of Anna Nicole at the start of the case, but he had clearly studied the material about her. “The fact that three pages of the living trust, according to the judge, were created after the event of that trust and slipped in without his knowledge,” he said to Pierce’s lawyer, “I mean, it’s quite a story.”

  Anna Nicole herself wore a subdued black suit for the occasion, and, according to her spokesman, she wept during the argument because she was overwhelmed by loving memories of her late husband. As it happened, the Court ruled unanimously in Anna Nicole’s favor and returned the case to federal court in California. Roberts assigned the case to Ginsburg, the Court’s leading expert on federal procedure.

  The postscript to Marshall v. Marshall was melancholy, even tragic. About a month after the Court’s decision, Pierce Marshall died suddenly, at the age of sixty-seven. Three months later, Anna Nicole’s twenty-year-old son died of a drug overdose. Five months after that, Anna Nicole herself died of an accidental drug overdose in a hotel room in Hollywood, Florida. Anna Nicole’s estate continued the litigation against Pierce’s estate (over the proceeds of J. Howard II’s estate). In an extremely rare development, the Supreme Court agreed to hear the case a second time, in 2010, to consider an issue relating to bankruptcy law. The case was by then known as Stern v. Marshall, as the lead plaintiff was Howard Stern, Anna Nicole’s paramour. (He was not the radio shock jock, though they were often confused.) Without Anna Nicole’s presence, the second oral argument drew little notice. The Court ruled 5–4 against her estate, but the litigation continues in 2012.

  More than his colleagues, Roberts brought a literary flair to opinion writing. Inevitably, then, given the circumstances, Roberts began his opinion for the Court in the second Anna Nicole case with a quotation from Bleak House, by Charles Dickens. “This ‘suit has, in course of time, become so complicated, that … no two … lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it’; and, sadly, the original parties ‘have died out of it.’ ”

  4

  THE LEGACY OF APPENDIX E

  As the Court convened on the first Monday in October 2006, the beginning of the second full year of the Roberts Court, Ruth Bader Ginsburg had more on her mind than the new lineup of cases. Someone in her family had cancer. Again. The disease haunted her life.

  Ruth Bader was born in 1933. Her father was a furrier and her mother cared for Ruth and Marilyn, her older sister, in their Brooklyn home. Few people were buying furs at the height of the Depression, so the family struggled. When Ruth was a toddler, Marilyn was stricken with meningitis and died. Ruth was raised as an adored only child, escorted by her mother to cello lessons and the local public library, which was located above a Chinese restaurant. When Ruth was thirteen, her mother was diagnosed with cervical cancer. Throughout Ruth’s high school years—when she was a cheerleader, editor of the school paper at James Madison High School, and the designated “rabbi” at her summer camp—Celia Bader endured the agonies of cancer treatment in the 1940s. She died the day before Ruth’s graduation. After the funeral, the Bader house filled with mourners, but only the men were allowed to participate in the minyan, the quorum for the official prayers. The teenaged Ruth took note.

  Ruth went to Cornell, where on a blind date she met Martin Ginsburg, who was a year older and also from Brooklyn, though he was raised in more prosperous circumstances, on Long Island. Ethnicity notwithstanding, they were almost comically mismatched. Ruth was shy, bookish, and reserved; Marty was ebullient, outgoing, and amusing. Each one remained that way for a remarkable half-century-plus of marriage. Their personalities could scarcely have differed more, but as a partnership based on love and respect, their union served as a happy model for all who knew them.

  They married just after she graduated, in 1954. Ruth followed Marty to Oklahoma, where he was completing his service in the army. This corner of the military had entered a postwar lull, and Marty found a good deal of time on his hands. He took the opportunity to read Escoffier and turned into an accomplished chef, which his wife, emphatically, was not. Their daughter Jane was born in 1955, and the family moved to Cambridge, where Marty was a year ahead of Ruth at Harvard Law School. She was one of nine women in a class of more than five hundred. (Ruth again noted the rules limiting female freedom, often without rhyme or reason. For example, at Cornell, women were required to live in the dorms; at Harvard, they were forbidden from living in the dorms.)

  While they were law students, Marty was stricken with testicular cancer, then as now a devastating disease. Through two surgeries and extensive treatments, Ruth cared for Marty, took class notes for him (as well as herself), typed his papers, made law review, and tended to their young daughter. It is said that these years made Justice Ginsburg somewhat intolerant of her law clerks’ complaints of overwork. Marty survived, of course, and the couple had a son a few years later.

  The Ginsburgs moved to New York, where Marty practiced tax law at a big firm and Ruth spent her final year of law school at Columbia. She then began a career in teaching law, first at Rutgers, in New Jersey. In her early years as a professor, she specialized in federal civil procedure, a subject she continued to find fascinating throughout her long career. (Rehnquist shared this unusual fondness, and it contributed to the warm relationship between the two.) In the fall of 1970, though, Ruth was thinking about doing some work for the budding women’s movement. One evening, as the couple was working in their adjoining home offices, Marty handed Ruth a few pages from a recent tax court decision. “Read this,” he said.

  “I don’t read tax cases,” she told him.

  “Read this one,” he said.

  In the five minutes it took to read the brief opinion, Ruth Ginsburg realized that a new chapter in her career was about to begin.

  ——

  Charles E. Moritz lived in Denver and worked as a book editor. In 1958, Moritz, who never married, brought his elderly mother to live with him, hiring a part-time caregiver a few years later. Under the tax law at that time, a single woman who paid for the care of a dependent could take a deduction; a single man who made the same expenditure could not. Representing himself before the tax court, Moritz wrote in a one-page brief, “If I were a dutiful daughter instead of a dutiful son, I would have received that deduction. That makes no sense.” (Both Ginsburgs later described Moritz’s homemade brief as one of the finest they’d ever seen.)

  After reading the case, Ruth said to Marty, “Let’s take it.” The husband and wife represented Moritz pro bono and won their appeal in the Tenth Circuit, in Denver. The Court found that Moritz was entitled to receive the same deduction as a woman would have received. (It came to about $600.) As it happened, though, by the time the case was decided, Congress had prospectively changed the law to eliminate that particular sex-based differential; the legal issue now
appeared to be moot. But Erwin Griswold, the solicitor general under Presidents Johnson and Nixon (and the former dean of Harvard Law School), thought the Moritz decision was so significant, and so wrong, that he asked the Supreme Court to reverse the Tenth Circuit decision. Griswold told the Court that it was important to preserve the principle of treating men and women differently under the law. Take the case, the solicitor general urged, because the Tenth Circuit’s decision “casts a cloud of unconstitutionality upon the many federal statutes listed in Appendix E.”

  What was Appendix E? Griswold had prevailed upon the Department of Defense to use one of its first computers to scour federal laws and regulations to find all rules “containing differentiations based upon sex-related criteria.” There were hundreds of them, and it would not have been possible for a mere law professor, in those days before simple computer databases, to track them down. The Supreme Court declined to hear the appeal, but Appendix E gave Ginsburg a road map for the next decade of her life—she wanted to undo as many of that long list of laws as possible. She later said Appendix E was a “treasure trove.” Moritz turned out to be the only case where Marty joined Ruth on a brief. He went back to tax law, and she became a founding director of the Women’s Rights Project for the American Civil Liberties Union, as well as the first tenured woman professor at Columbia Law School.

  When Ginsburg first contemplated bringing women’s rights cases to the Supreme Court, her prospects did not look promising. The Court had a long history of sanctioning discrimination against women. In 1873, the Court ruled that states had the right to bar women from the practice of law. As one justice explained, “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” In 1961, the Court unanimously upheld a Florida law that made jury duty mandatory for men but voluntary for women. Despite some changes in recent years, Justice John Marshall Harlan II observed, “woman is still regarded as the center of home and family life.” The question for Ginsburg was how to change this mind-set—in a Court made up of men.