The Nine: Inside the Secret World of the Supreme Court

The international influence shown by Kennedy in Lawrence was next exhibited in a case concerning the death penalty. In 2004, the Court heard argument in Roper v. Simmons, a case involving whether or not minors could be subjected to the death penalty. Like with Lawrence, the Court had allowed this in a case during the 1980s. However, changes in the law since then had led to the Missouri Supreme Court declaring the execution of minors to be unconstitutional.

The Eighth Amendment prohibited “cruel and unusual punishment,” and this is what Kennedy focused on during the oral argument. His questions were about what constituted “unusual” and whether laws and ideas in other countries should have any bearing on how to determine whether an act is “unusual” in the U.S. Breyer pointed out that both the framers of the Constitution and Abraham Lincoln took into account ideas of foreign nations, particularly from England. Kennedy then looked at the issue from a different perspective, noting that Americans often believed that what they did should influence others abroad, suggesting that perhaps it should work both ways.

Afterward, the vote was 5-4 against the death penalty for minors, again overturning a precedent dating to the 1980s. Once again, Kennedy was assigned the task of writing the opinion. Toobin notes that “the heart of the opinion—and certainly the most unusual part—was Kennedy’s reliance on international evidence to reach his conclusion” (196). Kennedy wrote that the U.S. was the only country that continued to execute juveniles, even among very authoritarian countries. That needed to be taken into consideration, he argued, even if it were not the main issue in the decision. Scalia, writing in dissent, asserted that Kennedy’s reliance on international law set no standard and seemed to be used here merely because it agreed with his thinking, whereas other areas of difference between U.S. and European law, which were numerous, seemed to cause Kennedy no concern.

If the right found fault with Kennedy, the left criticized Scalia, who—given his temperament—was all too happy to fight back. In early 2004, this came to a head over a case involving Vice President Dick Cheney. Scalia had taken up hunting when he was assigned to supervise the Fifth Circuit, which includes some of the South. This involves social engagements, and he was often invited to go hunting.

The controversy arose when Scalia invited Cheney on a hunt because his host in Louisiana admired the vice president. At the time, however, a case involving Cheney was due to be argued before the Supreme Court. Shortly after the 2000 election, Cheney had convened a task force on energy, himself acting as chair, which issued a report and disbanded after several months. Two public interest groups sued him to release the records, but he refused. The case had worked its way through the court system and would now be heard by the Supreme Court that April, three months after the hunting trip that both Scalia and Cheney went on. The Sierra Club, one of the parties suing for release of the records, asked Scalia to recuse himself. He refused. Toobin writes that the stakes in the case were very low and Scalia was right not to recuse himself. 

Justice O’Connor, like Kennedy, began to be out of step with conservatives during this time, and that is the focus of Chapter 16. Also like Kennedy, she traveled around the world in her capacity as justice. She was together with Stephen Breyer in India when the September 11 attacks occurred in 2001. When she got home, she wanted to visit Ground Zero, the site of the attacks on the World Trade Center. She had had a commitment scheduled at New York University Law School for the end of September, and used that opportunity to go. Before her speech at NYU, she chose to address the attacks and their inevitable impact on the nation. She foresaw the norms of national security, surveillance, immigration, other issues being altered by this event, noting that the tension between security and civil liberties would be of some concern.

As O’Connor softened her position on some issues and began taking international law more into consideration, she became more liberal overall. On some issues, like the death penalty, she remained a staunch conservative, and on others, such as race, she occupied the middle ground. One of her first major opinions, in 1989, had cast this mold, and she continued to maintain it. The case involved a quota in the city of Richmond, Virginia for providing contracts to minority-owned businesses. A company named Croson had sued when it lost a contract because the city had to meet its quota of minority contractors. Croson argued that this violated the Equal Protection Clause, and O’Connor wrote the opinion for the majority that agreed with Croson.

Race in the law had largely been determined by a footnote to a case in 1938, which stated that laws which seemed to disadvantage racial and other minorities would attract what came to be known as “strict scrutiny” (212).This was used in the 1960s to strike down many Jim Crow laws. In the 1970s, as more laws involving affirmative action were passed, the conundrum became whether these should also be negated based on the same standard of strict scrutiny. While the laws were designed to help African Americans, who had long been discriminated against, they could also disadvantage whites.

This is what O’Connor faced in writing the opinion in the Croson case, which had the potential to invalidate all race-based programs, even those designed to help African Americans. However, she didn’t go that far, seeking middle ground, as usual. The problem, she wrote, was that the city of Richmond had not identified a need for its policy. Her ruling meant that action could be taken when warranted—namely, when it was meant to counter identifiable discrimination. She was the swing vote on issues of affirmative action since the Court was otherwise evenly divided. This was the situation when two cases arose in 2003 regarding admissions at the University of Michigan.

The cases arose because of the role that race played in admissions to the university: African Americans were given extra consideration in order to ensure a diverse student body. This happened in both undergraduate admissions, where extra points were added to a minority applicant’s score, and admission to the law school, which considered race on an individual basis. Two white students sued the school, a prospective undergraduate and prospective law student, arguing that had they been African Americans with the same records, they would have been admitted. It had taken six years for their cases to make it to the Supreme Court, and the trend appeared to be in their favor. However, the university had strong supporters who vouched for their policy. Former President Gerald Ford wrote an op-ed in the New York Times supporting affirmative action. A number of CEOs of Fortune 500 companies wrote an amicus curiae, a brief in support of one party in a case, on the university’s behalf. Many retired military figures did the same, arguing that affirmative action was necessary in the service academies to ensure a diverse office corps.

O’Connor’s ability to find the middle ground was tested in the two University of Michigan cases, known in short as Grutter and Gratz, and she knew that the decision who have a large impact on education all across the country. The key case providing precedent for this, known as Bakke, was from 1978, in which strict quotas for minority students were struck down. However, Justice Lewis Powell had written for the majority that race could still be considered as one of many factors—just not the main factor. At a time when affirmative action was employed to redress past discrimination, Powell argued instead that racial diversity alone was beneficial to all races, as it exposed students to a variety of ideas, cultures, and experiences.

In oral argument, which took place at the beginning of April 2003, the justices focused on the “green brief” (223)—so called because of its green cover—submitted by the former members of the military, appearing to take its significance into account. The timing of the case also mattered: the U.S. had just invaded Iraq the month before, and with the war going well, the military was held in high regard at that moment. The justices did not seem to be questioning whether the goal of diversity was right or wrong, but rather whether the university’s policy carried it out properly. One concern O’Connor had was how long it might need to be in force. When the counsel for the university replied that Bakke had already been established for 25 years, O’Connor got an idea for maintaining the balanced position she always preferred.

In conference, the undergraduate case, Gratz, was decided in favor of the rejected student, while the law school case, Grutter, was decided for the university. The difference between them was the more quota-like application in undergraduate admissions; because the law school applied a more nuanced, individualistic approach, its affirmative action program was permitted. In writing the opinion, O’Connor left it to the universities themselves to determine the value of racial diversity as a goal in itself (thus preventing the decision from being applied to other areas such as employment). And because Bakke had then been in force for 25 years, she noted that the decision for Grutter would also be limited to that time period, after which race should no longer matter in admissions. 

This chapter deals with the continued rightward shift of the Republican Party in the 2000s, and the distance it created with even conservative members of the Supreme Court. The issue that arose shortly after the start of the Iraq War in 2003 had to do with Guantanamo Bay, an area of Cuba that the U.S. had leased since 1898 for military use. The U.S. government began bringing captured prisoners there from Afghanistan and surrounding countries but labeling them “enemy combatants” rather than “prisoners of war” (235), denying them rights under the Constitution or the Geneva Convention.

At first this caused little stir in the U.S., with the country on a virtual war footing. Likewise, no one would take the case of any of the prisoners until a left-wing group agreed to do so. Initially, the government’s stance was that those at Guantanamo had no right to even bring a case because they were not on American soil or under its jurisdiction. Lower courts agreed, which was appealed to the Supreme Court. Eventually, three separate cases made their way to the Court, which were known in short as Rahul, Hamdi, and Padilla.

In the first case, the attorney for the government emphasized that the U.S. was at war and that had no jurisdiction over Guantanamo. Under questioning, he admitted that war or no war, the U.S. had the right to keep combatants there indefinitely, a claim of expansive executive authority. Similar claims were made in the other two cases. When Ginsburg asked about safeguards against torture, the answer essentially was that the military policed itself and would not do such a thing.

That same day, new reports broke the story of the abuse of prisoners by the U.S. military at Abu Ghraib prison in Iraq. This and a memo by the administration on torture came to light as the Court was deciding these three cases. In both Rahul and Hamdi, they decided that detainees did have the right to challenge their detention in the courts. Padilla was dismissed on a technicality, in that the plaintive should have filed in a different state. Stevens, writing for Rahul, and O’Connor, writing for Hamdi, both emphasized judicial independence. O’Connor especially noted that war did not authorize “a blank check for the president when it comes to the rights of the Nation’s citizens” (235-36).

The latter half of the chapter deals with Rehnquist’s relationship with and attitude toward the Court at this point in time. Toobin writes he was tiring physically and becoming cynical about the Court. He no longer believed that the written opinion mattered much (hence his decision not to take either Rahul or Hamdi for himself). Only the votes mattered, and he now had trouble corralling those for majorities in issues that he felt strongest about. Nearly 80, he could have retired, but he had nothing to replace his work (his wife had died and his children were grown) and decided he’d rather continue. Then, in the fall of 2004, he learned that he had an aggressive form of thyroid cancer. 

The events of 2005 and the increasing political polarization are the main topics of this chapter. George Bush won re-election in 2004, as did Senator Arlen Specter of Pennsylvania, who was poised to become the new chairman of the judiciary committee. An offhand remark he made illustrates the heated political tenor that had taken hold in Washington. Specter told the press that as chairman he would hold Roe v. Wade to be settled law and that any nominee to the Supreme Court who expected to be confirmed should too. There was an immediate backlash, with many conservatives demanding that he be denied the chairmanship; they saw Bush’s victory as a way to appoint someone who met their views on repealing abortion, among other things. Specter was forced to back down in order to keep the post, stating that he would keep an open mind to all nominees and not apply any “litmus test” (248).

Rehnquist made his first appearance since announcing his illness when he attended Bush’s inauguration in January 2005 to administer the oath of office. He had been working from home, listening to recordings of arguments and submitting a vote, but his absence was more evidence of the leftward shift of the Court. This mostly took place in the voting of O’Connor and Kennedy, but Justice Souter was also a part of it. Although he had considered retiring after the debacle of Bush v. Gore, he would not be eligible for a full pension until 2005, and that probably helped keep him on the bench. However, he also seemed to be somewhat reinvigorated, especially in maintaining a fair-minded balance on the Court and a bulwark against the extremism of the Republican Party. The case that term that illustrated his approach was MGM v. Grokster, involving issues of online copyright and privacy. Souter united the Court with a balanced opinion despite the predictions of a lack of consensus.

In early 2005, a national drama unfolded that had an impact on the court and reflected the deep divisions in society and politics. In Florida, a man named Michael Schiavo went to court to be allowed to remove the feeding tube of his wife, Terry, who had been in a vegetative state since 1990. He felt he was following her wishes, but her parents disagreed and sued to prevent this. The situation became a symbol of cultural touchstones like abortion that involved the “right to live,” with Democrats generally supporting the husband and Republicans supporting the parents. After much legal action, it came to a head when Michael was permitted to remove Terry’s feeding tube, and did. Her parents appealed to the majority leader of the House of Representatives, Tom DeLay, who mobilized Congress to pass a bill specifically for this case, requiring a federal court in Florida to consider the arguments once more. It did and rejected the parents’ request; appeals to higher courts, including the Supreme Court, were denied, and Terry died at the end of March.

This led to a backlash against the judiciary. DeLay threatened to impeach the justices and other judges who he blamed for Terry Schiavo’s death. One Republican senator connected judicial behavior and decisions like those in this case with two violent and fatal attacks on judges that had occurred in the previous weeks—almost an implicit threat that such violence would continue unless judges changed their ways. The Supreme Court was not isolated from this: one woman in Connecticut had mailed the justices cookies laced with rat poison, and both O’Connor and Ginsburg had received death threats. O’Connor, in particular, was incensed over this incursion into the independence of the judiciary and took every opportunity to hammer home the importance of this independence in her speaking engagements. It would be her last defense of the institution she loved. Her husband had advancing Alzheimer’s disease, and that summer she decided to retire to take care of him.