The Oath: The Obama White House v. The Supreme Court

by Jeffrey Toobin

  Rather than challenge McCain or present an alternative vision for the courts, Obama chose to discuss only the subjects that had been working for him. When it came to the Constitution, it was clear that Obama’s agenda was the opposite of change. In an interview with the Detroit Free Press, just one month before Election Day, he displayed characteristic caution. In the course of a single short answer, it was possible to watch Obama’s mind in action. He was asked which justices would serve as models for his own Supreme Court appointments. “There were a lot of justices on the Warren Court who were heroes of mine, Warren himself, Brennan, [Thurgood] Marshall,” Obama said, but then he appeared to realize that he might be endorsing an unduly liberal agenda, so he added: “But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”

  Obama went on: “Generally, the court is institutionally conservative. And what I mean by that is, it’s not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn’t give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.”

  But times were different now, Obama said. “I’m not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology. I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges.” To some, this answer looked like political caution. Embracing Souter and Breyer, instead of Brennan and Marshall, was unlikely to cause offense or cost him votes. It is true that the answer was very, very careful—but it did accurately reflect Obama’s temperament as well as his views about the Supreme Court. After Obama became president, some of his supporters urged him to nominate the kind of judges he “really” wanted—outspoken liberals. But that supposition misread the man. He “really” wanted judges like Souter and Breyer.

  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.”

  3

  THE ERA OF GOOD FEELINGS

  The 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.

  All the justices (except Souter and, in recent years, Stevens) traveled the world. It was one of the perks of a job that paid considerably less than their law clerks made as soon as they entered private practice. (The chief justice makes $223,500, the associate justices $213,900.) They all received multiple invitations to attend conferences or do some light teaching all over the world. Thomas enjoyed the New York University villa in Italy. Scalia and Ginsburg traded reviews of opera festivals in Europe. Breyer visited his wife’s family in England and friends in France. (He speaks fluent French.) Roberts himself was teaching in London when Bush nominated him for the Court.

  Few justices reveled in the international scene as much as Kennedy. There was some irony in this distinction because Kennedy appeared to be, at the time of his appointment, the most provincial of men. He grew up in Sacramento and still lived in the house where he was raised. He had gone to Stanford, then to Harvard Law School, but soon returned to his hometown to take over his father’s firm and teach part-time at the local law school, McGeorge.

  In fact, during all those years, Kennedy nursed a considerable wanderlust. When he was still a teenager, h
is uncle, an oil driller, hired him to work on rigs in Louisiana and Canada. While he was in college, he studied for several months at the London School of Economics. (Later, he would recall with affection how much the range of student views differed from those at home. “You had to sit in the room according to your place on the ideological spectrum, and, to give you an idea of what it was like, the Communists—the Communists!—were in the middle!”) His father’s law practice focused heavily on lobbying California state government, especially for the liquor industry. But when young Tony joined the family firm he took it in a more cosmopolitan direction; for instance, he helped create the legal basis for American companies to open factories, known as maquiladoras, in Mexico. In the small world of Sacramento, Tony Kennedy was also a presence in Republican politics and an ally of Edwin Meese, who became a top aide to Governor Ronald Reagan.

  Kennedy’s scholarly bent, and Republican connections, led Gerald Ford to appoint him to the Ninth Circuit in 1975. (Kennedy was only thirty-nine.) He kept his chambers in Sacramento and could have contented himself, as many circuit judges do, with a life of reading briefs and writing opinions. He wouldn’t have had to travel farther than the Ninth Circuit’s headquarters in San Francisco. But Kennedy took an assignment from Chief Justice Warren Burger to supervise the territorial courts in the South Pacific, which meant that the young judge had to travel to Guam, Palau, Saipan, American Samoa, Australia, New Zealand, and Japan. Despite his heavy schedule, Kennedy kept teaching at McGeorge, which had set up a summer program in Salzburg, Austria. Starting in 1990, Kennedy would spend about a month there every summer.