The Nine (59 page)

Today, the fundamental divisions in American society are not regional or religious but ideological. Roberts, Scalia, Kennedy, Thomas, and Alito were not appointed because they are Catholic but because they are conservative. The base of the Republican Party—from James Dobson and Jay Sekulow among the evangelicals to Ted Olson and Leonard Leo among the Federalists—recognized that they could use their influence to shape the Court. They organized more, mobilized more, and
cared
more about the Court than their liberal counterparts. And when their candidate won the presidency, these conservatives demanded more—a pair of justices who were precisely to their liking (and the ejection of one nominee, Harriet Miers, who was not). With admirable candor, and even greater passion, conservatives have invested in the Court to advance their goals for the country.

In public at least, Roberts himself purports to have a different view of the Court than his conservative sponsors. “Judges are like umpires,” he said at his confirmation hearing. “Umpires don’t make the rules; they apply them.” Elsewhere, Roberts has often said, “Judges are not politicians.” None of this is true. Supreme Court justices are nothing at all like baseball umpires. It is folly to pretend that the awesome work of interpreting the Constitution, and thus defining the rights and obligations of American citizenship, is akin to performing the rote, almost mindless task of calling balls and strikes. When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor, has written, “It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly.” Constitutional cases, Posner wrote, “can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”

For this reason, Breyer’s wan longing for stare decisis will stir few hearts. Breyer and his liberal colleagues (joined on this occasion by Kennedy) did not care about stare decisis when they voted in
Lawrence v. Texas
to overturn the Court’s barely seventeen-year-old decision in
Bowers v. Hardwick
. Rather, they believed that the time had come to recognize that it was an abomination to allow criminal punishment of consensual homosexual sex and voted accordingly. On that occasion, as so often, ideology trumped precedent. It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices’ freedom to interpret is vast but not absolute.

Still, when it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy—ideology—and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideologies that will shape the Court and thus the nation.

So one factor—and one factor only—will determine the future of the Supreme Court: the outcomes of presidential elections. Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely. The days when justices surprised the presidents who appointed them are over; the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All of the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the presidents who appointed them. That will almost certainly be true, too, of the replacements for the three justices most likely to depart in the near future—Stevens, Souter, and Ginsburg.

This is as it should be. Cass Gilbert’s steps represent at some level a magnificent illusion—that the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the Court we deserve.

AFTERWORD
TO THE ANCHOR EDITION

T
hen, in the 2007–2008 term, the Supreme Court took a breath. There were, as ever, some important cases on the docket, but the year as a whole had an air of contingency. The justices were doing their work and completing their assignments, but they left the impression that they, no less than the rest of the country, were waiting for the results of the presidential election.

It is always difficult to know, of course, how much of the relative quiet of the term, particularly compared to the drama of the previous year, was due simply to the luck of the draw; fewer important cases happened to be in the pipeline. But there were small signs, too, that the conservatives—especially Chief Justice Roberts—had at least a moment’s hesitation about the Court’s headlong rush to the right in the previous year. Breyer’s warning on the last day of that term—“It is not often in the law that so few have so quickly changed so much”—appeared to have an effect. Thanks to Breyer’s caution, and the decisions at the end of that term, Roberts’s honeymoon with the Democrats who supported him was over. Roberts’s efforts to portray himself as a consensus builder or a centrist looked hollow, or even deceptive.

Among congressional Democrats (and even some Republicans), the 2007 decision that generated the most outrage was Lilly Ledbetter’s job discrimination case against Goodyear Tire and Rubber Company, which the justices threw out under a new and highly restrictive reading of the statute of limitations. Ledbetter herself became a celebrity of sorts, and a bill in Congress to change the law in her favor was christened the Lilly Ledbetter Fair Pay Act. With a veto promised by President Bush, the law did not pass both houses of Congress, but the fairly broad support for it represented a clear sign of bipartisan displeasure. So, coincidentally or not, the 2007–2008 term turned out to be a good one for suits claiming employment discrimination. In five such cases, the Court ruled for the plaintiff each time—and always with at least seven votes. One case was unanimous, and only Thomas voted for the corporate defendants in each of the other four. Those lawsuits, decided early in the term, suggested that the new year would not be another conservative rout.

In one respect, though, the 2007–2008 term resembled prior years because Sandra Day O’Connor, even in retirement, remained the justice best known to the public, and the one recognized for her life as much as for her work.

The new chapter of her life began in November 2007, when Veronica Sanchez, a television news reporter in Phoenix, called a local nursing home to do a story about the phenomenon of “mistaken attachments” among patients with Alzheimer’s disease. In this syndrome, patients can forget their relationships with their spouses and other relatives and “fall in love” with the people they see everyday, usually other patients. At the last minute, Sanchez’s original story on the subject fell apart, but the nursing home directed her to another facility, the Huger Mercy Living Center, where she was told there were two families who were willing to cooperate. One of them, the director of the center told Sanchez, was Sandra Day O’Connor’s.

Sanchez, of course, was flabbergasted, but she spoke to Scott O’Connor, the justice’s son, who lives in Phoenix, and he assured the reporter that his mother would approve the story. Scott ultimately gave Sanchez an on-camera interview, and he allowed her crew to photograph his father with the object of his apparent affection. The story on KPNX television caused a worldwide sensation, focusing attention on this little-known aspect of Alzheimer’s disease and the accompanying trauma for the family.

O’Connor’s decision to disclose this painful family secret surprised many of her friends, but it reflected her practical, problem-solving nature. By going public, O’Connor thought she could comfort or help other families in similar situations; she could not resist the chance to be of assistance. A few months later, O’Connor spelled out the story in her own voice, in testimony before the Senate Special Committee on Aging. She said Alzheimer’s was “a subject that is very dear to my heart and to the hearts of the millions of American families who love and provide care to relatives who have Alzheimer’s disease. As you know, I became one of these caregivers in 1990 when my husband, John, was diagnosed with Alzheimer’s. Living with this disease has been sad and difficult for my entire family.” (The date of John’s diagnosis had never before been made public.) O’Connor asked the senators for additional funding for research on the disease and its effect on the families of its victims.

The story about John remained, however, a sidelight in the former justice’s peripatetic travels around the country. Most of the time, she gave speeches about the twin causes that she had made her focus—judicial independence and civic education for young people. To that end, O’Connor became a spokeswoman for a nonprofit organization called Games for Change, which created video games placing children in positions of decision-makers, like judges. “Had someone told me when I retired from the Supreme Court, that I would be presenting at a conference on digital media, I would have reacted with extreme skepticism,” she said at one such conclave in New York. Even in this ostensibly apolitical venture, O’Connor reflected the alienation from the Republican cause that had been so obvious during her last years on the bench. She was drawn to the video game project after seeing the “increasingly vitriolic attacks against the Judiciary,” as in the Terri Schiavo case. The games, like her speeches, were an attempt to educate the public on the need for strong and independent judges. She quipped, “I always thought that an activist judge was a judge that got up every day and went to work.” Well into her eighth decade, O’Connor still did.

The Court’s decisions, earlier in the decade, banning the death penalty for juvenile offenders and the mentally retarded took place in a changing political climate for executions. Polls showed that support for the death penalty, while still substantial, was lower than at any point since the 1970s. Explanations for this change varied, but it almost certainly had something to do with declining crime rates and many highly publicized examples of innocent prisoners freed from death row as a result of new DNA evidence. Emboldened by the changing environment, death penalty opponents took on a new target—the method of executions used by most states. Defendants argued that lethal injection amounted to cruel and unusual punishment, in violation of the Eighth Amendment.

The case which reached the court,
Baze v. Rees
, became another example of how the liberals—specifically Stevens and Breyer—were a different breed than their earlier counterparts, like William Brennan and Thurgood Marshall. The evidence in the case was ambiguous; the execution protocol, known as a “cocktail,” had been established in a haphazard way, but there was not much proof about how much pain it caused defendants. This uncertainty was enough to push Breyer, who was always searching for facts rather than theories, to side with the conservatives. “I cannot find, either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the ‘significant and unnecessary risk of inflicting severe pain’ that petitioners assert,” Breyer wrote in an opinion concurring in the judgment.

More surprising, perhaps, was that Stevens also joined the majority, which meant the vote in the case was 7–2 to uphold lethal injections. In his separate opinion, Stevens announced that he had seen enough of the death penalty—that, like Justice Harry Blackmun more than a decade earlier, years of exposure to death cases had turned him into an abolitionist. “I have relied on my own experience,” Stevens wrote, “in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” But in his clear, matter-of-fact way—very different from Blackmun’s theatrics—Stevens said he would respect the precedents of the Court and thus join the majority in upholding lethal injections. Reserved, almost diffident, Stevens had less difficulty than most of his colleagues in separating his legal from personal conclusions. The opinion was as mysterious as Stevens’s long and distinctive tenure.

In the same lethal injection case, Thomas contributed one of the more bizarre opinions in his tenure. He used the case to compile a history of execution grotesqueries, proving, in his view, that the original understanding of the Eighth Amendment allowed the imposition of pain on the condemned. For example, the penalty for treason in eighteenth-century England, Thomas wrote, quoting an old document, was that “you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters.” Thomas’s point apparently was that anything—anything!—short of this kind of torture was permissible under the Eighth Amendment. To his credit Thomas had pushed his originalism to its logical extreme, even at the cost of endorsing a barbarism that has, fortunately, long vanished from American life.