War of the Whales (55 page)

Finally, there was nothing left to do. Reynolds lay on top of his bed and stared at the ceiling while CNN recapped the day’s news. The Dow had plunged 508 points in its latest heart-stopping free fall following the Lehman Brothers meltdown. Iceland’s financial system was cratering, and several European banks appeared close behind. Reynolds didn’t have any money in the market, but it occurred to him that if the next day brought news of another major bank default, it might crowd out reporting on the Supreme Court arguments. It was hard enough to generate sympathetic media attention for stranded whales during wartime, much less in the midst of a global economic collapse.

Beyond the profound shift in the political landscape, so much had changed on a personal level since Reynolds had first confronted the Navy over ship shock back in 1994. Wetzler and Jasny had joined his legal team, gotten married, and started families. Just that week, Jasny’s wife was expecting their second son, so Michael was back west with his family instead of pacing the hallways of the hotel. After spearheading NRDC’s international sonar campaign with Jasny for four years, Wetzler had moved on to NRDC’s Chicago office to work on other cases.

Reynolds’ family had gone through its own life cycle during the 13-year sonar campaign. His parents were both gone now. His son and two daughters had grown from infants into adolescents. And his second marriage, which had begun with a surge of romantic optimism in the early 1990s, was finally and irretrievably finished. He’ d tried to keep things afloat, hoping for a renewal or at least a stay until the kids were up and out. But his and Susan’s life together had become untenable, and all that remained were the divorce negotiations. The best he could hope for now was to spare the kids some of the pain of the breakup, and to get things with his soon-to-be ex back on a civil footing so they could be decent parents, even if under separate roofs.

Many of his colleagues from his early days at the Center for Law in the Public Interest had gone on to lucrative careers in private practice. Some lived in big houses in the canyons and had box seats at the ballparks. Reynolds still lived in the 1920s-era house he’ d bought near the beach in Venice 20 years earlier, and he drove a ten-year-old Ford Focus with fender dents he’ d never bothered to repair. He didn’t care much about the car, though he sometimes felt bad for his kids when he picked them up at school. His legacy to his children wasn’t going to be financial. That much was clear. If he’ d failed to give them the kind of happy home life he’ d been blessed with, at least they could feel proud of the conservation work he’ d done.

Reynolds pulled his dark blue suit from the closet and laid it across the bed. He’ d bought the suit years earlier while in Bangkok, Thailand, for a meeting of the World Conservation Congress. It had been so inexpensive he’ d bought two of them. Since then, the suits had served triple duty at weddings, funerals, and court appearances. On closer inspection, he realized that the gabardine fabric had grown shiny and a bit threadbare.

Then he noticed a hole near the right shoulder of his jacket. A small circle of white batting showed through the dark fabric, too big to sew closed. He remembered a trick he’ d learned from his father—his role model since youth in the art of frugality. Once, en route to a choral concert he was conducting in Riverside, his father realized that he’ d left his black bow tie at home. Stopping quickly at Kmart, the only bow tie they could find featured garish black and white checks. So his father bought a black Magic Marker and colored in the white squares. He assured Joel that no one would notice.

Three blocks from the hotel was a CVS drugstore that stayed open till midnight. Reynolds was grateful for an excuse to take a late-night walk. It was a balmy October evening, and each time he crossed an intersection, he glimpsed the illuminated obelisk of the Washington Monument on his left. He found a navy blue Sharpie pen for $1.89. Back at the hotel, it took only a minute to dot in his repair. Not an exact match for the suit color but close enough to escape notice, he hoped.

Reynolds awoke before dawn for the 10 o’clock oral arguments. The Supreme Court distributes fewer than 100 seats to the public on a first-come, first-serve basis, and the line on the sidewalk outside the court was already full by 6:30, with the majority of visitors appearing to be uniformed naval personnel. Reynolds recognized some friendly faces from NRDC’s Washington, DC, office. Naomi Rose from the Humane Society was there with her husband, dolphin researcher Chris Parsons.

Reynolds was relieved to see that his 16-year-old son, Sam, had made it to the court in time to secure a place in line. For this special occasion, Reynolds had flown Sam in from Los Angeles the evening before to hear the oral arguments.

Reynolds met Kendall inside the building, where they were ushered into the clerk’s conference room for the traditional preargument greeting from the clerk. Once inside the chamber itself, Reynolds was again surprised by the small scale and intimacy of the Supreme Court chamber. To the left of the bench, raised up like box seats in an old-fashioned theater, was the press gallery, with the most senior Supreme Court reporters seated closest to the justices. Nina Totenberg of NPR and the
PBS NewsHour
had the prime perch up front.

As the public spectators filed into the rear of the gallery, Reynolds noticed that the front row of invited guests, facing the justices’ dais, was filled with admirals in full dress whites. He shook hands with Admiral Daly, who had recently earned his third star and a promotion to deputy commander and chief of staff at US Fleet Forces Command.

Before Daly left Washington for Norfolk, the newly confirmed solicitor general, Gregory Garre, had asked him for a briefing on the military details of the case he’ d be arguing, which Daly had been pleased to provide. Daly had wanted to be here today, both to show the flag and to see how well the solicitor general had mastered the facts of the case.

At 10 o’clock sharp, the marshal of the court instructed everyone to rise as the black-robed justices filed in and took their assigned seats, by seniority, on either side of the chief justice. For all the tension surrounding the outcome, Reynolds delighted in the high drama of the scene. Beneath the theater of the judicial garb, the solemn chambers, and immutable rituals lay the ideological battle lines among the justices. And underlying the political blood feuds was the incalculable human factor, multiplied by nine. One woman, eight men. Their only common feature was their unassailable power to uphold or rewrite the law in the world’s most powerful democracy.

After six years of overlapping sonar lawsuits and more than a year of nonstop work on this one case, it was shocking how brief the oral arguments were. Not much longer than back-to-back rounds of
Jeopardy!
—and with just as strict a clock.

Gregory Garre had the first 30 minutes to argue the Navy’s case. During his opening, Garre did his best to stake out his central theme of national defense.

JUSTICE KENNEDY:

I take it that you are here because you find the decision of the Ninth Circuit, and I take it of the district court, prejudicial for the government on an ongoing basis; and what are the principal reasons for that?

SOLICITOR GENERAL GARRE:

Because of its impact on national security, Justice Kennedy.

Justices Souter and Ginsburg soon began picking apart Garre’s contention that a federal agency has the authority to sidestep environmental protections by declaring an emergency. Souter pressed him to acknowledge that the Navy had brought the “emergency circumstances” on itself by waiting until the exercises had begun to conduct a complete Environmental Impact Statement. Justice Scalia waded in to throw the solicitor general a lifeline.

JUSTICE SCALIA:

Look, the problem you face—and maybe you’re being whipsawed—is that . . . at the time the Environmental Assessment was issued, it was a good faith completion of the Navy’s responsibilities. And that’s the argument being made against you. It assumes the Environmental Assessment wasn’t enough. And I’m not sure that . . . assumption is valid.

SOLICITOR GENERAL GARRE:

Well, that’s right. And as I indicated earlier—I want to be clear—the Navy believes that its Environmental Assessment was not only prepared in good faith, but was appropriate and reached the right conclusions.

Before his time elapsed, Garre made sure to assert, “No marine mammals will be killed as a result of these exercises . . . They hear the [sonar] sound, and they go in the opposite direction. It also has some temporary effect on their feeding patterns.”

Then it was Kendall’s turn to argue for NRDC. As soon as he began speaking, several justices—particularly Roberts—interrupted to make their points veiled as questions. The chief justice wondered aloud why District Judge Cooper hadn’t weighed the harm of sonar to marine mammals against “the potential that a North Korean diesel-electric submarine might draw close to Pearl Harbor undetected.” Alito asked skeptically if a judge could be considered an expert on antisubmarine warfare, adding, “Isn’t there something incredibly odd about a single district judge making a determination on a defense question that is contrary to what the Navy has made?” When Alito and Scalia started ganging up on Kendall, Ginsburg interjected a response that allowed him to reclaim the train of his argument.

Reynolds followed carefully every word, every inflection of the justices’ comments. He listened particularly intently to whatever Kennedy had to say. But the much-scrutinized “swing” justice had learned to keep his cards close to his chest, though he did remark at one point that when the president and the Defense Department “jointly made the determination that this [sonar training] was necessary for the national defense . . . they certainly must be given great weight.”

Thomas, as usual, said nothing at all during the oral arguments, keeping his eyes closed most of the time. The only surprising line of questioning, to Reynolds’ ear, came from Justice Breyer, who they’ d presumed would be friendly to their arguments. At one point, Breyer made a statement that seemed to sum up the government’s national security position more succinctly than the solicitor general had managed to:

JUSTICE BREYER:

Look, I don’t know anything about this. I’m not a naval officer. But if I see an admiral come along with an affidavit that says—on its face, it’s plausible—that you’ve got to train people when there are these layers [in the water], all right, or there will be subs hiding there with all kinds of terrible weapons, and he swears that under oath. And I see on the other side a district judge who just says, “You’re wrong,” I then have to look to see what the basis is, because I know that district judge doesn’t know about it either. So, the basis so far I’m thinking on this one is zero.

MR. KENDALL:

There was also a prior exercise in Hawaii. You will recall from the brief that we had a prior litigation that resulted in the consent decree in [which] the Navy agreed to train with a surface ducting powerdown.
^*
So, they had previously told the same judge that they were capable of training in surface ducting conditions with that powerdown, else they would not have agreed to that decree. The problem that the judge had is that the Navy cannot be judge of its own cause. Deference does have its limits . . .

JUSTICE BREYER:

Generalities. You see, of course, I agree with you as a generality. What I am missing here is the specifics, because I am nervous about it, as you can see. And what I am nervous about is that there just wasn’t enough on the other side, on your side.

Near the end of Kendall’s argument, Breyer interrupted to ask rhetorically, “How does the basic thing work? Because to a layperson, when I think of the armed forces preparing an Environmental Impact Statement, I think, the whole point of the armed forces is to hurt the environment [
laughter from the gallery
]. I don’t understand how it’s supposed to work. Of course they are going to do something that’s harmful.”

To which Kendall responded without missing a beat: “I think the point of the armed forces is to safeguard our freedoms while causing the least damage possible to our environment.”

And then, at 11:05, the oral arguments were over, and everyone spilled out onto the courtroom steps. Nina Totenberg commandeered a corner of the stairs for her on-camera commentary and an interview with Reynolds. NRDC’s entire team, joined by lawyers for the California Coastal Commission, posed for pictures, and then Reynolds posed with his son.

Being interviewed by Nina Totenberg on the steps of the US Supreme Court following oral arguments in the sonar case, November 8, 2008.

Afterward, the team converged once again at the Paul Hastings conference room for a debrief of the morning’s argument. As seasoned court watchers, they knew it was impossible to predict from the justices’ questions how they would line up on a vote. They’ d just have to wait and see.