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

by Jeffrey Toobin

  In short, by the time O’Connor took up the cause of judicial independence, the partisan battle lines were clearly drawn on the issue. Republicans supported judicial elections; Democrats wanted appointive systems. O’Connor joined the Democratic side, loudly and passionately. Earlier in her tenure, she was more ambivalent about these issues, but her embrace of judicial independence paralleled her move to the left on a variety of other matters. O’Connor’s passion for the issue reflected her own experience as an elected official—real-world experience that was keenly missed at the Court. She knew what it was like to raise money for elections, and she knew how money could corrupt the judicial process. It was not an abstraction to her. She understood how political decisions were made, and she could communicate the earthy reality in a characteristically direct way. Urging the members of a state bar association to lobby for more funding for the courts, she told them, “Make sure to drop in some sob stories. If things get really bad, buy some beer and Mexican food, and have them all over.” (O’Connor herself, who enjoyed a scotch, was fond of quoting her husband: “You don’t have to have a drink to have a good time, but why take the chance?”)

  O’Connor stepped into one of the hottest political fights in the nation in 2010. The previous year, the Iowa Supreme Court had ruled unanimously that the Iowa constitution required that same-sex couples be allowed to marry. Three of those justices happened to be facing retention elections in 2010, and a conservative Republican activist organized a campaign to defeat them. Alone among national public figures, O’Connor traveled to Iowa to defend the three judges. “Justice Souter and I both look at the Court as the one safe place where a person can have a fair and impartial hearing to resolve a legal issue, and we have to keep that,” O’Connor said. “We have to address the pressures being applied to that one safe place … to have it where judges are not subject to outright retaliation.” Despite O’Connor’s efforts, all three of the Iowa justices were voted out of office. (In Iowa, O’Connor described her mission as supporting judicial independence, not same-sex marriage per se. Her views on gay rights had evolved enormously, too. In 1986, O’Connor had voted with the majority in Bowers v. Hardwick, which upheld a Georgia prosecution of a gay man for having consensual sex. In 2003, in Lawrence v. Texas, O’Connor was part of the majority that overturned Bowers. By 2010, there was little doubt that O’Connor favored full equality, including marriage rights, for gay people.)

  In Nevada, also in 2010, O’Connor’s venture into electoral politics turned into an embarrassment. Shortly before the election, she went to Las Vegas to support a ballot initiative that would have moved the state to a primarily appointive system for judges. Through a series of snafus, supporters of the initiative used O’Connor’s voice on robocalls that went out to about 50,000 voters—in the middle of the night. (One woman called the local newspaper to complain that, since she had a son in intensive care, she thought the call meant that he had died.) Through the Supreme Court public affairs office, O’Connor put out a statement that she had not authorized the use of her voice in this way. In any event, O’Connor’s side in the initiative lost.

  The change in O’Connor’s circumstances was striking. She had gone from being one of the most powerful people in the country to an itinerant speechmaker who was not nearly as sure in her footing as a political player as she had been as a judge. O’Connor placed herself in an awkward position by taking such an outspoken role in elective campaigns. She had retired from the Supreme Court but remained a federal judge. Conservatives complained that she had violated ethical norms. She hadn’t—the rules were vague—but the questions were unpleasant. She weathered them and went right back out on the road. O’Connor could have done what most retired justices do—pick up an honorary degree here or there, teach a class every once in a while. But O’Connor saw what was happening to her country—and her Court—and she couldn’t let go.

  ——

  O’Connor had an unusual conversational tic. She divided the world into things (and people) that were “attractive” and “unattractive.” The distinction had little to do with appearance, but more with O’Connor’s general sense of how things would be perceived in the world. O’Connor kept up her politician’s radar for public sentiment. When the Court abruptly changed course and overruled its prior decisions, that was unattractive. Colin Powell was attractive. John Ashcroft was unattractive.

  John Roberts was the very definition of attractive. When he became chief justice, O’Connor already knew him as a skilled and accomplished oral advocate before the Court. She was dazzled, like so many others, by his graceful and learned testimony before the Senate Judiciary Committee. O’Connor overlapped with Roberts for only about four months on the Court—from October 2005 to January 2006—but it was long enough for her to be enchanted with his debut. She told the story of his graceful handling of the exploding lightbulb all the time and went so far as to write a gushy tribute to the new chief justice in Time. “The stars must have been aligned that January morning in 1955 when John G. Roberts Jr. was born in Buffalo, N.Y., because almost everything thereafter led him straight to the Supreme Court of the U.S.,” the story began. The new chief justice had made the transition to the Court “seamlessly and effectively,” she wrote, concluding, “I’m certain he will serve a long tenure in the role and be an effective leader not only for the Supreme Court but for all the federal courts in the nation.”

  Then O’Connor started seeing the decisions. It wasn’t one, or two, or even three of them. Abortion, civil rights, women’s rights—it was as if the Roberts Court had made a special project of targeting O’Connor’s legacy in particular. Hers had been the crucial vote in Casey in 1992 to save the core of Roe v. Wade—and then Gonzales v. Carhart jeopardized it. O’Connor had preserved affirmative action in Grutter in 2003—and Roberts belittled it in Parents Involved, the Seattle school integration case. O’Connor had projected onto Roberts her idea of what a chief justice, and what a Republican, should be. But if she had chosen to look more closely, it was always clear that Roberts reflected his own era of the Republican Party, not O’Connor’s.

  In private, O’Connor had a disparaging word for what she saw in Roberts—an agenda. Rehnquist was different, she said. He had taken each case one at a time; he had not tried to force his vision of the Constitution on the Court. This was actually revisionist history on O’Connor’s part. Rehnquist was just about as conservative as Roberts was, but Rehnquist didn’t have the votes to enact his agenda. Roberts, in most cases, did. (In slightly different ways, O’Connor, Souter, Ginsburg, Breyer, and even Stevens all created a kind of posthumous cult of William Rehnquist. He was moderate! He played fair! He respected precedent! Rehnquist was great! Those were the good old days! These reimaginings of him had more to do with these justices’ distaste for Roberts than with a realistic assessment of Rehnquist.)

  Mostly O’Connor kept her views about the Roberts Court private. Given her wide circle of friends, frequent travels, and outgoing nature, her opinions were hardly a secret. But Citizens United prompted her to shed her public reserve. The main reason the retired O’Connor had come to favor an appointive judiciary over an elected one was to limit the power of money in campaigns. And here the Court was casting aside decades of limits on campaign finance. “This rise in judicial campaigning makes last week’s decision in Citizens United a problem, an increasing problem, for maintaining an independent judiciary,” O’Connor said at a conference at Georgetown University Law Center just a few days after the decision. “No state can possibly benefit from having that much money injected into a political campaign.” Like Carhart II, the partial-birth abortion case, Citizens United illustrated the importance of the Alito-for-O’Connor shift on the Court. If she had remained, that 5–4 decision would have gone the other way.

  But as she knew better than anyone, O’Connor had left the Court, and she had to live with the consequences of her decision. Her health was still good, but midway through her ninth decade, she was more prickly and
less patient than she used to be. There were two questions that she especially disdained, and she was asked them all the time. The first was about Bush v. Gore. Did she think she voted the right way? “It wasn’t the end of the world,” she said, in a typical response, at a conference in Aspen. “They had recounts of the votes in four counties by the press, and it did not change the outcome at all. So forget it. It’s over!” Her defensiveness invited speculation about the state of her conscience on the subject.

  The other question was whether she regretted stepping down from the Court. To know O’Connor was to recognize that she did not traffic in regrets. The rancher’s daughter had no truck with whining about what might have been. Asked about what the Roberts Court had done to her legacy, she said at one point, “What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear.’ But life goes on. It’s not always positive.”

  David Souter’s life, on the other hand, was pretty close to always positive—or at least close to what he always wanted.

  Just a few months before George H. W. Bush nominated him to the Supreme Court in 1990, Souter was confirmed as a judge on the First Circuit. (He had been a justice on the New Hampshire Supreme Court for several years.) If Souter had stayed on the First Circuit, he would have had chambers in Concord, gone down to Boston about once a month for arguments, and lived in his old family home in Weare. It was the life he wanted. Now, twenty years later, Souter finally had it.

  By the time Souter returned to New Hampshire full-time, the old family farm house was literally disintegrating under the weight of all his books. So he bought a newer one closer to Concord and started the laborious process of moving his possessions. Efficiency was never a Souter strong suit, so he spent months shuttling between the two houses, not living entirely in one place or the other. As a retired justice, Souter was eligible to sit on the First Circuit, but that court was short-handed and Souter soon had a substantial caseload. The Supreme Court, however, only gave him a secretary based in Washington, not Concord, so his chambers on Pleasant Street were strewn with disorderly piles of papers and books. Souter didn’t mind. He went running through the hills every morning. He retired at sixty-nine, and a year or two in New Hampshire made him look five years younger. (He did miss his friends in Philadelphia, where he had been the Third Circuit justice for many years. He thought about visiting, but Philadelphia (!) just seemed too far to go.)

  Souter put the Supreme Court behind him—almost. In May 2010, he agreed to give the commencement address at Harvard and get a few things off his chest. Souter had watched with impatience as Roberts, in his confirmation hearing, had compared himself to an umpire, limited only to the mechanical process of calling balls and strikes. Likewise, Souter had spent a generation confronting the resolute certainties of Scalia and Thomas that they could find the answer to any legal question in the plain text or the original meaning of the Constitution. Souter did not believe there was any such certainty. (He didn’t share his predecessor William Brennan’s liberal certainties either.) Rather, Souter built his jurisprudence around embracing the complexities and contradictions built into the Constitution.

  “The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises,” he told the crowd at Harvard, citing the Pentagon Papers case, where the values of a free press conflicted with the need for national security. “A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways.” To Souter, originalism and textualism were based on false promises. “If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.” Their meaning for living people, not the intent of the framers—those, in Souter’s genteel way, were fighting words. In temperament and style of living, Souter was probably closer to the eighteenth century than any other justice, but he recognized the folly of trying to re-create the world of the framers and then render decisions as they would have done. In all the important ways, Souter was a modern man.

  The Harvard speech was very much an aberration. Souter was out of the game, and happily so. When he was on the Court, Souter had longed to take the time to read (reread, actually) Proust and Dickens, and that was what he was finally getting around to doing.

  One thing gnawed at him. Before he left Washington, he had meant to take something of the Court with him. He wanted a souvenir, a keepsake, that might remind him of his days as a justice, but he never found the right thing.

  Then, some time after he returned to New Hampshire, Souter had an idea. When he was a boy, he had collected stamps, and the postmaster in Weare used to save copies of the new issues for him. He remembered that when he was about eleven years old, there was a three-cent stamp with a picture of the Supreme Court building. Souter burrowed into his files and found the stamp, and he noticed that it featured the windows where he had had his chambers for many years. Souter put the stamp in a frame. That was good enough for him.

  17

  SOFTBALL POLITICS

  Stevens’s announcement of his departure, in April 2010, was no surprise. Neither was Obama’s reaction to filling a second vacancy on the Court. The president thought the nomination and confirmation of Sotomayor had been a great success. So he decided to start with the same list of candidates and make his choice in the same way he had selected his first justice.

  From the perspective of the White House, however, the world now looked very different. Sotomayor was nominated during Obama’s honeymoon, which was long over by the time Stevens retired. There had been no significant recovery from the devastating recession, and the blame for this failure was starting to attach to Obama. In January, Scott Brown had won a dramatic upset victory in the race for the late Senator Edward Kennedy’s seat in Massachusetts. That election took the Democratic majority in the Senate below the filibuster threshold of sixty. That same month, the Citizens United decision had reminded the White House just how much harm the Supreme Court could do to them. In light of his political weakness, Obama wanted to place the right justice on the Supreme Court while also looking to avoid a big fight in the Senate.

  The three losing finalists for the Souter seat had been Kagan, Diane Wood, and Janet Napolitano. As before, though, Napolitano was doomed by her success as secretary of homeland security. Obama liked the job she was doing there, and nominating a politician, with a history of public positions on controversial issues, was problematic in the best of circumstances. Since she was out, Obama wanted to consider more options.

  Merrick Garland joined the finalists. Bill Clinton had put Garland on the D.C. Circuit in 1997, and he had been a moderate liberal on that Court for more than a decade. He was viewed as an easy bet for confirmation, if not an especially politically advantageous choice. With the uncertainty surrounding the coming midterm elections, Obama was looking at a substantially reduced Democratic majority in the Senate during the second half of his term. It was wise to keep Garland in reserve in case he needed Republican support for confirmation. “I need a play I can run in 2011 or 2012,” Obama said to an adviser.

  Garland had graduated from Harvard College and Harvard Law School, and after his name leaked as a possible nominee, Obama received some criticism for educational snobbery. With Stevens leaving, the Supreme Court would consist of five products of Harvard Law School and three of Yale. (Ginsburg’s law degree came from Columbia, though she spent her first two years at Harvard.) Was that a healthy thing? Were there only two law schools in the whole country? Obama wanted some diversity.

  He added Sidney Thomas to the list. Thomas had an impeccably non–Ivy Leag
ue pedigree. He was a graduate of Montana State University and the University of Montana Law School whom Clinton nominated to the Ninth Circuit in 1995. A protégé of Max Baucus, the state’s senior senator, he was also among the most liberal judges on the most liberal appeals court in the country. (Some in the White House did relish the idea of a liberal “Justice Thomas” on the Supreme Court.) The White House made a point of leaking the fact that Thomas had been brought in for an interview with Obama, but he was never a realistic candidate.

  Again, the real choice came down to Diane Wood and one other candidate, this time Elena Kagan.

  Kagan went into the contest with what might be called the John Roberts advantage. Through his work in the Reagan White House, Roberts knew many of the most important Republican lawyers in the country. It was true that Roberts hadn’t written much when he was appointed to the Supreme Court, but that didn’t matter a lot, because these people knew him. They had been in that gilded foxhole together. Roberts didn’t have to prove his conservative or intellectual bona fides. He was an insider.

  So was Kagan. In the Clinton White House, she had worked closely with Rahm Emanuel, who was currently the White House chief of staff. Kagan and Cynthia Hogan, Biden’s chief counsel, had been associates together at Williams & Connolly, and then Hogan had hired Kagan to assist Biden in the Ginsburg confirmation hearings in 1993. (That meant Biden knew Kagan as well.) Ron Klain, Biden’s chief of staff, was a law school peer of Kagan’s and one of her closest friends. Danielle Gray, the young lawyer who wrote the first vetting memos on Supreme Court candidates, had been her student at Harvard. As for Wood, the brother of Susan Davies, the deputy White House counsel, had once been a law clerk for her, but that could scarcely compare to Kagan’s lineup of friends and advocates.