The Oath (8 page)

In that final month before Election Day, Obama had a clear lead in the polls and a final obstacle to overcome, the last of the three debates with McCain. Each campaign season, it was a tradition of sorts for the moderator to ask one question about abortion and Supreme Court appointments; on October 15, 2008, it fell to Bob Schieffer to raise the issue with the candidates.

McCain answered first, saying he would never impose a “litmus test” for his prospective appointments, but also making clear that he thought
Roe v. Wade
was “a bad decision.”

Obama responded, “It is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance.

“Now I would not provide a litmus test, but I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue, and it is a moral issue and one that I think
good people on both sides can disagree on. But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote. So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.”

On November 4, 2008, Barack Obama was elected president, with 365 electoral votes. He received 69 million popular votes to McCain’s 59 million, representing a margin of 53 percent to 46 percent. At the time of the election, the American economy was nearing free fall. The collapse of the bubble in housing prices had led to huge losses in financial firms that had sold securities based on mortgages. To prevent those firms from going out of business, Congress passed the Troubled Asset Relief Program (TARP), which Bush had signed on October 3, authorizing $700 billion in bailouts. The major banks survived, but business activity nearly ground to a halt. About 700,000 Americans per month were losing their jobs. Working from transition headquarters in a Chicago high-rise, Obama and his staffers spent most of their time figuring out how to address the crisis.

Still, the work of judicial selection, including for the Supreme Court, now moved from abstraction to reality. In August, after Obama had clinched the Democratic nomination, a lawyer in New York received a confidential assignment from the transition team, which was just then being formed. Preeta Bansal, who was then a partner at the law firm Skadden, Arps and formerly solicitor general of New York State, was asked to prepare a series of memorandums about how a President Obama might approach the federal judiciary. She projected the number of likely vacancies, examined the ethnic and professional backgrounds of current federal judges, and compiled the first list of possible nominees for the new president to consider. There were other issues, too. Should Obama announce his first nominations as a group, as Bush did, or one at a time? (Obama chose one at a time.) Should the new administration
cooperate with the American Bar Association, which had traditionally rated nominees but which had been pushed out of the process by recent Republican administrations? (Obama’s team decided to reestablish the connection, but only after securing a pledge from the ABA that the group would act quickly.)

As Obama himself now recognized, there was no longer time for abstract discussions—or even intentional evasions—on the subject of the Supreme Court. About a week after the election, while the group was still working in Chicago, Obama summoned Gregory Craig, the future White House counsel, and David Axelrod, his top political aide, to discuss judicial nominations for the first time.

“It looks like we might have a Supreme Court appointment soon, so we need to be ready,” Obama told them. “I have a list.”

THE ERA OF GOOD FEELINGS

T
he transition at the Supreme Court from William Rehnquist to John Roberts was not as dramatic as the one at the White House from George W. Bush to Barack Obama. In the stillness of the Court’s marble halls, though, any change seemed dramatic. Everyone on the Court was fond of quoting a remark by Byron White, who had served for more than thirty years: “When you change one justice, you change the whole Court.” As of early 2006, after no changes in membership for more than a decade, there were suddenly two new justices, including a new chief, in the space of four months.

To compound the sense of disorientation for the justices, the Supreme Court building was in the midst of a major renovation project. The building had opened in 1935, and there had never been a full update of its major systems. Rehnquist had begun studies for the project in the late nineties, and then, after September 11, 2001, the plans had to be reconfigured to accommodate the new emphasis on security. Ground was broken in 2003, and by the following year the justices were taking turns being thrown out of their offices, and into temporary quarters, for several months at a time.

When Roberts and Alito joined the Court, the remaining justices were all middle-aged or older. The youngest was Thomas, at fifty-seven, and Souter was next, at sixty-six. Scalia, Kennedy, Ginsburg, and Breyer were all in or soon to be in their seventies. Stevens was the oldest, at eighty-five. Like most other people in their cohort, the justices did not take easily to change—in colleagues or in lodgings. Under Rehnquist, they all won some cases and lost some, but they knew where they stood, with the chief and with each other. There are few more isolating jobs
than justice of the Supreme Court. The telephones rarely ring in their chambers. Year after year, the justices have no one to talk to about the most important aspects of their work except one another and their law clerks. The stakes for any change were high.

Roberts understood this and asserted his authority with some finesse. During his confirmation hearing, Roberts said he hoped the Court could speak more often with a single voice—in unanimous opinions. In his first year, the whole Court pulled together in helping Roberts achieve this goal. During the Rehnquist years, the justices had reached unanimous rulings in about a third of all cases. During Roberts’s first year, that percentage ticked up to about 45 percent.

Roberts provided a snapshot of his personality early in his first term, on October 31, 2005.
Central Virginia Community College v. Katz
concerned a fairly obscure issue in bankruptcy law. Toward the end of the argument, as Ginsburg was asking a question, what sounded like an explosion went off in the courtroom. The police officers reached for their sidearms.

“A lightbulb exploded,” O’Connor said. “A lightbulb exploded.”

As everyone resumed their focus, Roberts quipped, “It’s a trick they play on new chief justices all the time.” No one laughed harder than O’Connor.

There was really only one important case on the docket during Roberts’s first full year—and the chief could not participate in it. It was the appeal of
Hamdan v. Rumsfeld
, the case that helped seal Roberts’s nomination to the Court. (At the very moment that Bush was weighing whom to appoint, Roberts joined the decision in the D.C. Circuit in Bush’s favor.) Because Roberts had already ruled on the case, he recused himself from playing a part in the Supreme Court’s deliberations. Eight justices would render the next verdict on the Bush administration’s treatment of the detainees at Guantánamo Bay.

The case illustrated how the politics of the country affected the justices—both in the cases before them and in the conclusions they reached.
Hamdan
itself had begun in the unlikeliest of ways. After 9/11, and the Bush administration’s decision to open the facility at Guantánamo, the legal concerns of the detainees there were hardly a mainstream issue. The Pentagon assigned a handful of military lawyers to
represent the prisoners, but these unlucky counselors had few resources and little support. Then in May 2003, Air Force Lt. Col. Will Gunn, the chief defense counsel for the tribunals, received an unsolicited e-mail from Neal Katyal, a thirty-three-year-old professor at Georgetown University Law Center and a former Breyer clerk. “I hope this e-mail reaches you, as I’ve tried to find your contact info from a variety of different sources,” Katyal wrote. “I’m writing,
in the event that you do lead the defense team at the military tribunals, to offer my help.” Lacking any better offers, Gunn invited Katyal to work with Charlie Swift and Philip Sundel, the navy JAGs who would be handling the first cases.

It was a deeply unfashionable undertaking. Only a year and a half had passed since the terrorist attacks. The war in Iraq had just begun, and it enjoyed tremendous public support. Only the Center for Constitutional Rights, a stalwart of the left, had raised loud and consistent objections to the Bush administration’s legal basis for the war on terror. The big law firms and major law schools were mostly silent. Even so, the first legal challenges to the detention policies began working their way through the courts. The administration had argued that the facility at Guantánamo, which was on Cuban soil, should be treated like a foreign battlefield; accordingly, the courts shouldn’t be ordering American troops to help with the defense in such dangerous conditions.

The Guantánamo cases, known as
Hamdi
and
Padilla
, came before the Court for oral argument on April 28, 2004, and Ginsburg pressed the Bush lawyers about the logical extension of their arguments. If the Guantánamo detainees were outside the reach of the American legal system, she asked, were there any legal limits on how they could be treated? Could they be tortured? “Suppose the executive says, ‘Mild torture, we think, will help get this information.’ It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command. Some systems do that to get information.”

“Well,” Paul Clement, the deputy solicitor general replied, “our executive doesn’t.”

That very night, CBS News’s
60 Minutes II
broadcast the first photographs of the treatment of Iraqi prisoners at Abu Ghraib. The photographs, which showed extensive abuse by American soldiers, created a national scandal. By that point, too, a year after the invasion, the war had settled into a bloody stalemate. In all, the political tide was turning against the war, and in June 2004 the justices issued their
first rulings against the Bush policies. Stevens, in his opinion for the Court, made short work of the argument that Guantánamo was like a battlefield. The American military “exercises exclusive jurisdiction and control” over the base, he wrote; Donald Rumsfeld, the secretary of defense, sent these dangerous prisoners to such a remote location precisely because it was so secure from outside interference. O’Connor, a reliable vector for public opinion, was even more contemptuous of the Bush administration’s position: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

By the time Katyal argued the
Hamdan
case before the eight sitting justices on March 28, 2006, the Iraq War had deteriorated further and the political climate surrounding the issue of Guantánamo had been transformed. In
Hamdi
, the Court had rejected the notion that the detainees were not entitled to any due process at all. In response to that initial defeat at the Court, the Bush administration had set up a system of military commissions that gave the detainees the right to a kind of truncated trial. The
Hamdan
case was a challenge to the adequacy of these hearings.

The case served also as a useful introduction to the Roberts Supreme Court. Scalia, Thomas, and Alito were sure votes to uphold the president’s policy and Roberts’s ruling in the D.C. Circuit. Stevens, Souter, Ginsburg, and Breyer, on the other hand, would definitely vote to strike down the new rules. In this case—and so many that followed—the verdict would be rendered by Anthony Kennedy.

Kennedy was weeks away from turning seventy years old. He was Ronald Reagan’s third choice to fill the seat vacated by Lewis Powell in 1987. (Bork had been voted down by the Senate, 58 to 42, and Douglas Ginsburg, a judge on the D.C. Circuit, had withdrawn following news reports that he had smoked marijuana as a young law professor at Harvard.) Since his appointment, Kennedy’s hair had receded and whitened, but in all other respects he had thrived on the Court. Age had not withered his sinewy six-foot frame. When Kennedy began to speak, he often hesitated, almost stuttered, in what appeared to be an attempt to show humility, but he invariably found the right cruising speed, especially in front of an audience. He spoke (as he wrote) in
grand and vague phrases—about “the poetry of the law,” “the defense of liberty,” and “dignity,” his favorite word. To anyone who asked, Kennedy insisted that he did not enjoy his role as the crucial vote on the Court. Few believed him.