The Nine (58 page)

The Court puts off its most contentious cases for the last weeks—and the toughest of all for the last day. That final day of a term always offers an unvarnished picture of the justices. By that point, they are tired and grumpy. In the headlong rush to finish, they have spent entirely too much time with each other and their law clerks and too little on the obligations of everyday life. At the stroke of ten on June 28, 2007, as the justices emerged from behind the velvet curtains, it was clear that a majority needed haircuts.

Samuel Alito, in the junior justice’s chair on the audience’s far right, stared blankly into the middle distance. He had been an appeals court judge for fifteen years before becoming a justice, but the unique burdens of the high court weighed on him as they did on all newcomers. Pasty-faced, phlegmatic, conservative in demeanor as well as conviction, Alito fought sleep from the moment he sat down.

The tiny Ginsburg was all but swallowed up in the next chair toward the middle, her head barely visible above the bench. Immaculate as ever, unlike her weary colleagues, she stared in evident fury straight ahead of her. The term had been a disaster, and she had no intention of pretending otherwise.

In the best of circumstances, David Souter loathed ceremonial occasions like this one. In a venerable custom, before many oral arguments, the Court still allows lawyers to be sworn in as members of the Supreme Court bar in person. The proceeding usually takes about ten minutes and concludes with the chief justice welcoming the new group. Unlike his colleagues, Souter never cracks a smile at what he regards as a total waste of time. So, too, on this day, Souter seethed at having to sit through a pointless ritual at the end of another unhappy year.

Scalia looked fine, his eyebrows dancing in satisfaction at the year’s accomplishments. He hadn’t won every case, and his colleagues had not gone as far or as fast as he would have preferred, but it had still been the best term for Scalia in a long, long time.

Roberts, in the center seat, showed the first traces of gray in his hair, but his face was as unlined as when he’d carried Rehnquist’s casket into the building twenty-two months earlier. His confidence had deepened. It was his Court, and everyone knew it.

Stevens, to the chief’s right, looked the same as ever, two months after his eighty-seventh birthday. (At the time, his older brother, William, was still practicing law part-time in Florida in his ninety-first year.) With his bow tie, unfashionably large tortoise-shell glasses, and inscrutable expression, John Stevens gave nothing more away than he did at the bridge table in Fort Lauderdale, where he would soon be going.

Kennedy’s studied earnestness could not conceal his joy. No justice in history had had a term like his; in the twenty-four cases decided by votes of 5–4, Kennedy was in the majority in every single one. And he had two more majority opinions, and a crucial concurrence, to announce. After an early-morning workout on the elliptical trainer, this seventy-year-old man glowed.

The last two seats on the bench enjoy the dubious privilege of immediate proximity to the press section. On this day, Nina Totenberg of NPR sat closest to the justices, and Clarence Thomas swung so far back in his chair that Stephen Breyer blocked her view of him—and his of her. Before Alito’s arrival, Thomas had spent more than eleven years at the other side of the courtroom from the reporters, an arrangement much more to his liking. Thomas’s chair was adjusted to allow him to lean back much farther than his colleagues, and he, unlike Alito, didn’t look like he was trying to keep his eyes open. Even by Thomas’s own peculiar standards, this had been an extraordinary year. Over an entire Court term, Thomas had sat through one hundred and four oral arguments and not asked a single question.

At the end of the bench, Breyer twitched, leaning forward and then back, his hand straying from the thick stack of papers before him to his bald head and back. Breyer always fidgeted more than his colleagues, but he looked on this day as if he wanted to jump out of his skin. This epochal term on the Court had changed Breyer more than anyone. He had lost cases before, of course, but he had always responded with energy and hope—as when he rallied the liberal clerks out of their despair after
Bush v. Gore
. Now, the conservative onslaught had darkened Breyer’s naturally sunny temperament. Desperate for productive work throughout this dismal spring, he had thrown himself into lobbying Congress for the pay raises for judges. At least on the other side of First Street, Breyer had a chance of winning.

Three cases remained. Kennedy announced the first, when the Court didn’t even offer the pretense of minimalism and overruled a ninety-six-year-old precedent. Since the case, known as
Dr. Miles
, in 1911, the Court had held that antitrust law forbade manufacturers from setting minimum prices for their products. The idea was that minimum prices discouraged competition and raised costs for consumers. Henceforth, according to Kennedy and the four conservatives, minimum prices would sometimes be allowed.

As always, Kennedy gave a longer summary of his opinion than the others tended to do, and Breyer, two seats to his right, rolled his eyes in irritation. “Justice Stevens, Justice Souter, Justice Ginsburg, and I have filed a dissenting opinion,” Breyer began, in his singsong voice. “I want here to emphasize one point: stare decisis.” That was his theme for the day and for the year: that the conservatives were abandoning the rule of precedent without justification.

In the next case, it was Kennedy again, this time siding with the four liberals. They struck down a death sentence for a Texas man who suffered from mental illness. This case reflected true judicial minimalism, because the Court set down no new rules and simply ordered the lower court to give the man a new hearing. Thomas, the Court’s most reliable supporter of executions, wrote a dissent for Roberts, Scalia, and Alito, but he declined to speak from the bench.

Then, finally, it came down to the last case of the year, the combined appeals on the Louisville and Seattle school desegregation cases, and Roberts announced he would deliver the opinion himself. Few justices in history have taken to opinion-writing as quickly as Roberts. The new chief is good-natured, to be sure, but he is also intensely competitive, and he writes his opinions as he did his briefs when he was a litigator—with crystalline logic, pungent rhetoric, and vivid examples. Once more the Court was limiting a precedent rather than overturning it outright—now it was O’Connor’s
Grutter
opinion—but the message was the same as in the other cases. The conservative majority had arrived.

Like any warrior, Roberts took the high ground, and at the Supreme Court, there is no rampart more protected than
Brown v. Board of Education
, the unanimous landmark decision of 1954 where Chief Justice Earl Warren forbade official segregation in public schools. To Roberts, any plan that assigned even a single student for a single year to a school based on his race violated
Brown
. “Before
Brown
, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons,” the chief justice read in his flat midwestern accent. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Breyer then spoke for twenty-seven minutes, one of the longest spoken protests in the Court’s history, summarizing a dissenting opinion that he called “twice as long as any other I have written.” Kennedy agreed with the result in the Louisville and Seattle cases, but not with all of Roberts’s opinion. In a vague and confusing concurring opinion of his own, Kennedy suggested that some race-conscious plans might be permissible, but not those in these two cities. Many big-city schools were in fact already moving away from the explicit race-consciousness of Louisville and Seattle, concentrating more on raising test scores than mixing races. Thus, the practical effect of the day’s decisions was left rather mysterious and may turn out to be modest.

But Breyer wrote at such length, and spoke with such passion, because of something more than the immediate stakes. In part, he (joined again by all three liberals) was simply offended at the hijacking of
Brown
by the conservatives. “The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration,” he said. “And it is a cruel distortion of history to compare Topeka, Kansas, in the 1950s, to Louisville and Seattle in the modern day.” In part, too, Breyer saw planted in Roberts’s opinion the end of all affirmative action—in employment, in business, and in government, as well as in education. The “color-blind” Constitution, long favored by Scalia and Thomas and now apparently by Roberts and Alito, would end it all. (In a brief dissent that was more bewildered than angry, Stevens made the remarkable assertion, “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”)

But Breyer, most fundamentally, was talking in his long opinion about the Court. For the second time that day, he asked, “What has happened to stare decisis?” He listed
Grutter
and six more cases that now appeared to be dead letters. “The plurality’s logic writes these cases out of the law,” he said, and then added words that did not appear in the published version of his dissenting opinion: “It is not often in law that so few have so quickly changed so much.”

At this direct slap, Alito roused himself and stared across the bench at Breyer. Roberts didn’t change expression, but the muscles in his jaw twitched. Above all, Breyer was taking a stand against the agenda that was born in the Reagan years, nurtured by the Federalist Society, championed by the right wing of the Republican Party, and propelled by the nominations of Roberts and Alito. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse
Roe v. Wade
and allow states to ban abortion. As Breyer knew better than anyone, the two new justices, plus Scalia, Thomas, and (usually) Kennedy, put all those goals tantalizingly within reach.

As soon as Breyer finished, Roberts, graceful as always, closed the year by paying tribute to Harry Fenwick, the Court’s food preparation specialist, who would be retiring two days later after thirty-eight years of service. “Thanks for everything, Harry,” Roberts said. Then the chief justice declared a recess until the first Monday in October.

EPILOGUE

THE STEPS—CLOSED

O
n the day that President Bush nominated John Roberts to the Supreme Court, the future chief justice reflected upon the great symbol at the heart of Cass Gilbert’s design—the steps. “I always got a lump in my throat whenever I walked up those marble steps to argue a case before the Court,” Roberts said, “and I don’t think it was just from the nerves.” Over the years, countless Americans have shared Roberts’s sense of awe as they entered Gilbert’s temple of justice. Soon, however, no one else will. The steps will be closed to the public as an entranceway to the Court.

Rehnquist made the renovation of the Supreme Court building a priority during his final years as chief justice. Like many government building projects, a fairly modest restoration metastasized into an over-budget, much-delayed shambles, which may (or may not) be completed around 2009. And like much else in Washington after September 11, 2001, the design decisions about the renovation were made with obsessive attention to the issue of security. Most notably, the public entrance up the front steps—the defining feature of Gilbert’s concept for the structure—was deemed an undue risk. So a new entrance will be gouged into the side of the steps, near the base of the building. Visitors will still be allowed to depart down the front steps, and watch Gilbert’s vision recede behind them.

Whether the closing of the steps turns out to be a metaphor for deeper change at the Court will be determined in part by the justices but even more by the American people. More than any other influence, the Court has always reflected the political currents driving the broader society. In the early days of the Republic, when regional conflict predominated, that tension could be seen on the Court. Presidents felt obligated to replace, say, a California justice with another from the same state. (Later, of course, it passed almost without notice that the Court for many years had two justices, Rehnquist and O’Connor, from the relatively unpopulated state of Arizona.) In the nineteenth and twentieth centuries, the great tide of European immigration put religion near the center of politics, and the tradition of a “Catholic seat” and a “Jewish seat” arose. The fact that President Clinton drew little comment by appointing two Jews to the Court proved the passing of this era. Likewise, there is little significance that there are now five Catholic justices. The most important liberal in the Court’s history, William Brennan, was Catholic, too.