The Nine (5 page)

The signs of transition at the Court were physical as well as ideological. It was one of the rare times in Court history when four retired justices were alive. Warren E. Burger, Lewis F. Powell, William J. Brennan Jr., and Thurgood Marshall were still making occasional visits to the Court, all of them walking embodiments of both the sweep of the Court’s history and its relentless retreat into the past.

Burger, the white-maned former chief justice, who had left the bench in 1986, maintained a surpassing ability to annoy his colleagues, even in retirement. He had departed the Supreme Court to lead a commission on the bicentennial of the Constitution, feeding, perhaps, his taste for pomp, which was always stronger than his interest in jurisprudence. (The celebration in 1987 was widely ignored, even in legal circles.) Worse, Burger’s taste for bureaucratic empire building had led to the construction of a huge structure for the Federal Judicial Center on a desolate plot of land near Union Station. Retired justices of the Court traditionally maintained chambers in the Supreme Court building, but among the hazy justifications for the FJC was that it would provide a new home for retired justices. Characteristically, Burger neglected to check with the justices themselves to see if they had any interest in uprooting themselves from Cass Gilbert’s marvelous structure. None had.

Powell, the Virginia gentleman and centrist who controlled the outcome of so many important decisions, remained as popular as ever and even, in one way, influential. In 1986, the year before he retired, he had cast the deciding vote in
Bowers v. Hardwick
, which upheld Georgia’s right to criminalize consensual gay sodomy. Byron R. White’s opinion for the Court was brusquely dismissive of the very notion of a constitutional protection for gay sex. But in 1990, Powell told a law school audience that he “probably made a mistake” in joining the majority in that case. Powell’s admission kept the controversy about
Bowers
alive and signaled that his favored disciple, O’Connor, might also have doubts about having voted the same way.

Burger and Powell passed without much notice on their visits to the Court, but Brennan always drew a crowd. The history of the Court abounds with long tenures, but even three decades does not guarantee that a justice will leave much of a legacy. Forgotten justices like James M. Wayne (thirty-two years on the Court), Samuel Nelson (twenty-seven), and Robert Grier (twenty-four) illustrate that longevity and obscurity can coexist. But Brennan’s thirty-four years ranked among the most consequential tenures the Court had ever seen. His opinion in
Baker v. Carr
led to the rule of one person, one vote;
New York Times Co. v. Sullivan
transformed the law of libel to expand First Amendment protections for the press; his opinion in
Eisenstadt v. Baird
made the result in
Roe v. Wade
almost inevitable. But even more than the opinions he wrote himself, there was his role as the Court’s master vote counter, first with his great friend Earl Warren and then as the wily leader of the Court’s shrinking but still influential liberal wing.

Brennan’s influence didn’t end with retirement, either, and not just because hundreds of his opinions remained precedents of the Court. He grew especially close to his successor, David Souter. “I’d stick my head in his chamber door, and he’d look up and say, ‘Get in here, pal,’ and when I was ready to go he’d call me pal again,” Souter said at Brennan’s funeral in 1997. “He wouldn’t just shake my hand; he’d grab it in both of his and squeeze it and look me right in the eye and repeat my name. If he thought I’d stayed away too long, he’d give me one of his bear hugs to let me know that I’d been missed…. And he might tell me a few things that were patently false, which he thought I might like to hear anyway. He’d bring up some pedestrian opinion that I’d delivered, and he’d tell me it was not just a very good opinion but a truly great one, and then he’d go on and tell me it wasn’t just great but a genuine classic of the judge’s art. And I’d listen to him, and I’d start to think that maybe he was right.” Brennan’s seven years with Souter put a stamp on the younger man’s career.

Thurgood Marshall was the least seen of the retirees. He was the only member of the Court since Warren who would have held a place in American history even if he had never become a justice. As an architect of the NAACP Legal Defense and Education Fund’s assault on segregation, he had argued and won many of the civil rights landmarks of the 1940s and 1950s, including
Brown v. Board of Education
in 1954. Lyndon Johnson had put him on the Court in 1967, but Marshall’s tenure had been unhappy. The causes he cared about were in eclipse for most of those years, and he spent his last years fighting ill health and trying to hang on until a Democratic president could appoint his successor. “If I die, just prop me up!” he would instruct his law clerks.

So Marshall’s resignation in 1991, a week before his eighty-third birthday, came as a surprise. “I’m getting old, and coming apart,” he explained at a freewheeling press conference the next day, where he sat slumped over in a chair, looking disheveled. He was asked whether he thought President George H. W. Bush had an obligation to appoint another minority justice in his place. “I don’t think that should be a ploy,” he answered, “and I don’t think it should be used as an excuse, one way or the other.” A reporter followed up, “An excuse for what?” Marshall’s answer seemed directed at his most likely successor. “Doing wrong,” he said. “Picking the wrong Negro…. My dad told me way back…there’s no difference between a white snake and a black snake. They’ll both bite.”

Unwritten Supreme Court protocol called for a wall of separation between the sitting justices and the confirmation process. Nominees were never so presumptuous as to make contact with the Court before they were confirmed, and justices generally refrained from commenting, even in private, about their possible new colleagues. So it was, at first, with the confirmation hearings of Clarence Thomas, which began on September 10, 1991.

There was never much doubt that Thomas would be the nominee. A year earlier he had been confirmed for the United States Court of Appeals for the D.C. Circuit, and the prospect of his replacing Marshall had been much discussed then. The dilemma facing Bush and the Republicans was clear. If Marshall left, they could not leave the Supreme Court an all-white institution; at the same time, they had to choose a nominee who would stay true to the conservative cause. The list of plausible candidates who fit both qualifications pretty much began and ended with Clarence Thomas.

On July 1, 1991, President George H. W. Bush introduced Thomas as his nominee at a press conference at his vacation home in Kennebunkport, Maine. There was awkwardness about the selection from the start. “The fact that he is black and a minority has nothing to do with this,” Bush said. “He is the best qualified at this time.” The statement was self-evidently preposterous; Thomas had served as a judge for only a year and, before that, displayed few of the customary signs of professional distinction that are the rule for future justices. For example, he had never argued a single case in any federal appeals court, much less in the Supreme Court; he had never written a book, an article, or even a legal brief of any consequence. Worse, Bush’s endorsement raised themes that would haunt not only Thomas’s confirmation hearings but also his tenure as a justice. Like the contemporary Republican Party as a whole, Bush and Thomas opposed preferential treatment on account of race—and Bush had chosen Thomas in large part because of his race. The contradiction rankled.

Still, there was much to admire in Thomas, as the early days of his confirmation hearings showed. Thomas began his testimony with a personal story that was extraordinary by any measure. He had grown up in poverty in Pin Point, Georgia, without a father and with a mother who earned twenty dollars every two weeks as a maid. She was so poor, in fact, that she had to send her two boys to live with their grandparents. “Imagine, if you will, two little boys with all their belongings in two grocery bags.” Hard work put him through Holy Cross College and Yale Law School, and he had thrived during his career in government, as an ever-rising official in the federal bureaucracy during the Reagan administration.

Still, as soon as Thomas began answering questions, problems emerged. Four years earlier, Robert Bork’s nomination had been defeated because he expounded broadly about his well-established, and very conservative, judicial philosophy. Consequently, the conventional wisdom had become that nominees should avoid taking substantive stands on most legal issues. But Thomas took the approach to an extreme. In awkward, wooden answers, he gave the impression that he had no views, not simply that he was declining to express them. In one infamous exchange, he told Senator Patrick Leahy that he had never even discussed
Roe v. Wade
.

Still, there was little organized opposition to Thomas, and his confirmation looked assured. On Friday, September 27, the Judiciary Committee split 7–7 on Thomas, but even that tepid nonendorsement meant that the full Senate would give him an up-or-down vote. There was little reason to think he might lose.

Then, on Saturday, October 6, the name Anita Hill leaked to the press, and the rest of the Thomas confirmation battle became a tawdry national obsession. Hill had been a young lawyer on Thomas’s staff, first at the Department of Education and then at the Equal Employment Opportunity Commission. During those years, she had confided to friends that her boss had made a series of bizarre sexual comments and overtures to her. In the summer leading up to Thomas’s confirmation hearings, Hill had discussed with some of those friends whether she should come forward with what she knew about the nominee. Through these conversations, Hill’s name reached Democratic staffers on the Judiciary Committee and then several reporters. Once her name became public, the committee decided that she should tell her story in public.

Over seven surreal hours on Friday, October 11, Hill gave testimony that soon became part of American folklore. She said Thomas had talked about his large penis, about his skill at giving oral sex, and about pornographic films starring Long Dong Silver. There was “one of the oddest episodes,” when Thomas looked at a soda can in his office and asked, “Who has put pubic hair on my Coke?” Later that night, after Hill’s marathon testimony, in a confrontation that would become equally famous, Thomas returned to the hearing room. He denied Hill’s allegations in their entirety and denounced the proceeding as a “high-tech lynching for uppity blacks.” Thomas rejected Hill’s allegations of mistreatment, but otherwise refused to answer any questions about his relationship with Hill or his personal life.

The nation watched as the hearings continued through the weekend, with Republican senators accusing Hill of “erotomania” and perjury, and of making up her testimony from her reading of
The Exorcist
. There were supporting witnesses for both sides, and the hearings didn’t end until 2:03 a.m. on Monday, October 14, less than forty-eight hours before the Senate was scheduled to vote.

At the Supreme Court, a handful of clerks had caught parts of the hearing on the few televisions that were scattered in offices on the second floor of the Court. But it wasn’t just custom that led the Court to ignore the circus on the other side of First Street. There was more important news, closer to home. Nan Rehnquist, the chief’s wife, was dying.

When he became chief justice in 1986, Rehnquist arrived with one great advantage. He wasn’t Warren Burger.

In his seventeen years as chief, Burger had managed to alienate all of his colleagues. The greatest breach, and the most surprising, was with Harry Blackmun. No closer friends had ever served together on the Court. They had met in kindergarten in St. Paul, Minnesota, and grown up together. In 1933, Blackmun was best man at Burger’s wedding. Burger made his name first in national politics, serving in a senior post in the Eisenhower Justice Department, and he engineered both his own and then Blackmun’s appointment to the federal court of appeals. Burger became chief justice in 1969, and a year later, after the nominations of Clement Haynsworth and G. Harrold Carswell failed, Burger inveigled President Nixon to name Blackmun in their place. In their early days on the Court, the two men were known as the Minnesota Twins.

The relationship soon soured. In part, the differences between the two men were simply ideological, as Blackmun moved closer to Brennan and Marshall on the left. But it was more the way Burger ran the Court that came to madden Blackmun and his colleagues. The main duty of a chief justice is to chair the Court’s conference every Friday when it is in session. At those secret meetings, held in the chief’s conference room, the nine justices review the argued cases and cast their votes. When he is in the majority, the chief justice assigns who will write the opinion for the Court; when the chief is in dissent, the senior associate justice in the majority makes the assignment.

The problem, it seemed, was that Burger could not run the conference. Discussions meandered aimlessly and ended inconclusively. Justices sometimes thought that Burger would switch his vote to keep control of opinions or even try to assign cases where he was not in the majority. (William O. Douglas, then the senior associate justice, thought that was how Burger assigned Blackmun to write
Roev. Wade
.) Potter Stewart, who was appointed by Eisenhower in 1958, grew so frustrated with Burger that he took an unprecedented form of revenge. Stewart responded eagerly to an approach from Bob Woodward, who had just become famous for his work on Watergate, letting the journalist know that he would cooperate with an extended investigation of the Burger Court. Stewart’s interviews provided a basis for
The Brethren
, written by Woodward and Scott Armstrong and published in 1979. The book, full of vivid inside detail that had never before been divulged to the public, portrayed Burger as a pompous, egomaniacal bumbler. (Stewart wound up resigning in 1981, at the unusually young age of sixty-six, opening the seat that went to O’Connor.)