The Nine (34 page)

Photo 17

Alito at his confirmation hearing on January 11, 2006.

Photo 18

Martha-Ann breaks down in tears at the hearing as Senator Lindsey Graham describes the attacks against her husband.

15

“A LAW-PROFESSION CULTURE”

N
ot everyone was pleased by the ruling in
Lawrence v. Texas
. The case turned out to be a critical moment in the culture wars. Justice Kennedy’s opinion was hailed on major editorial pages, in law schools, in big American cities, and in foreign capitals. But those voices, as Justice Scalia was quick to point out, were not the Court’s only constituency. In the struggle between elite opinion and popular will, there were no guaranteed winners.

Lawrence
cemented the breach between Kennedy and Scalia. Born within a few months of each other and nominated by the same president only a year apart, the former law school contemporaries and jogging partners had been heading in opposite directions for some time, but the post–
Bush v. Gore
Kennedy became unrecognizable to Scalia. Indeed, in his opinion for the Court in
Lawrence
, Kennedy seemingly went out of his way to produce a catalog of everything in modern constitutional law that most repelled Scalia. Like
Roe v. Wade
,
Lawrence v. Texas
was based on the “right to privacy,” which Scalia did not believe existed. Kennedy drew at length from
Casey
, the 1992 landmark that he had produced in secret collaboration with O’Connor and Souter, most notably these oft-quoted lines: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In his dissent in
Lawrence
, Scalia sneered at what he called
Casey
’s “famed sweet-mystery-of-life passage.”

Scalia did more than simply ridicule Kennedy’s words.
Lawrence
reflected what Scalia, as an originalist, most despised—a Court that shifted according to contemporary trends rather than by the immutable rules set down by the framers. But Scalia made a deeper observation. For all of Kennedy’s talk about how the world had changed since 1986, Scalia knew that many Americans—perhaps even most of them—shared his own revulsion for homosexuality. The decision in
Lawrence
did not spring from anything close to unanimous public opinion on the issue; rather it sprang from
one kind
of opinion. “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct,” Scalia wrote in his dissent, adding, “The Court has taken sides in the culture war.”

Scalia knew that the public—the real public—was on his side on at least some issues, perhaps even most of them, but especially about the clear subtext of the
Lawrence
case—gay marriage. Kennedy, wary of pushing his argument too far, had said pointedly in his majority opinion that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

But Scalia shot back with even greater directness: “Do not believe it…. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.” True to Scalia’s prediction, just five months later, with heavy reliance on the
Lawrence
precedent, the Supreme Judicial Court of Massachusetts held that gay people must be allowed to marry, too.

By that point, Kennedy had decided to press forward on an equally controversial issue—the death penalty.

Although influenced by his summers in Salzburg, Kennedy wasn’t even the most ardent internationalist on the Court. Breyer was.

In the way that actors once sought the perfect mid-Atlantic accent, Breyer found the perfect mid-Atlantic life. After graduating from Stanford, he won a Marshall Scholarship to study at Oxford. He returned to the States for Harvard Law School, then moved to Washington to serve as a law clerk to Justice Arthur J. Goldberg. There he met a young Englishwoman named Joanna Hare, who was then an assistant in the Washington office of the London
Sunday Times
. She came from an aristocratic (and wealthy) British family; her father was John Hare, 1st Viscount Blakenham, a British peer and statesman who served as a leader of the Tory Party in the 1950s and 1960s. The couple married in England, and Joanna Breyer later became a psychologist, treating young patients and their families at the Dana-Farber Cancer Institute in Boston. ( Justice Breyer was also fluent in French, a fact that, given the relationship between the Bush administration and France, he did little to advertise.)

At Harvard Law School, on the First Circuit Court of Appeals, where he served from 1980 to 1994, and on the Supreme Court, Breyer eagerly sought the friendship of his counterparts in other countries. He was the first justice in modern times to invoke foreign law as an aid to interpreting the American Constitution. He was cautious at first. In 1999, the Court refused to hear the appeal of a prisoner who argued that spending more than two decades on death row amounted to cruel and unusual punishment, in violation of the Eighth Amendment. Breyer wrote a brief dissent from the denial of certiorari, which was the kind of opinion that had little significance compared with, say, a majority opinion of the Court; such writing was a traditional way for justices to try out new ideas. So in his dissent in
Knight v. Florida
, Breyer quoted legal opinions from Jamaica, India, Zimbabwe, and the European Court of Human Rights to observe that “a growing number of courts outside the United States…have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.” Breyer carefully noted that these views could not bind American courts, but he thought their observations worthy of note. Still, even this cautious invocation of foreign law drew a swift rejoinder from Clarence Thomas, who said in a brief opinion that the Supreme Court should never “impose foreign moods, fads, or fashions on Americans.” With that brief exchange, the battle was on.

It was Kennedy who took the concept to the next level. The issue was one that mattered a great deal to his foreign colleagues. On October 13, 2004, the Court heard argument on whether or not states could execute minors—that is, murderers who committed their crimes before they turned eighteen.

The issue was especially contentious because, as with
Lawrence
, the Court had considered it just a few years earlier. In 1989, Scalia had written in
Stanford v. Kentucky
that states could execute sixteen-and seventeen-year-old offenders. But in 2003, the Missouri Supreme Court had ruled in
Roper v. Simmons
that changes in the law since
Stanford
meant the Constitution now forbade the execution of juvenile offenders.

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’?”