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When the Supreme Court agreed to hear NRDC v. Winter, Reynolds and Kendall both knew that having Kendall out front during oral argument would increase their chances of winning. They needed all the help they could get. They’ d be appearing before the most conservative Supreme Court since the 1930s, and the most activist judicial panel anywhere in the country that had consistently favored government and corporate interests for the past five years.1 In the prior term, the Supreme Court had reversed eight out of ten cases it had reviewed from the San Francisco–based Ninth Circuit Court of Appeals. Reynolds figured he was better off having a major-firm litigator of Kendall’s caliber and reputation, and a long list of Fortune 500 clients, making the case against Navy sonar. Kendall had already argued several times in the Supreme Court, so there was no question that he was up to the task. And he was entitled to his moment at center stage. From the start, he and his firm had delivered the kind of added firepower that Reynolds needed in a case of this intensity and complexity—especially with the Navy determined to appeal all the way up to the Supreme Court.
As the court date approached, Reynolds’ biggest fear wasn’t simply losing but the risk of losing badly: a so-called hard landing. In a worst-case scenario, a hard landing could make bad law under a range of environmental statutes, establishing bad precedent and even reversing decades of legal gains—not just by NRDC but by other advocacy organizations as well. In overturning NRDC v. Winter, the court could make sweeping rulings on national security versus the environment or undermine the power of the courts to restrict agencies of the executive branch. It might also impose strict limitations on who had standing in environmental lawsuits or raise the bar for injunctive relief in future cases. To bolster their arguments, Reynolds and Kendall reached out to other groups and individuals to submit amicus, or “friend of the court,” briefs arguing specific points of law.
In the meantime, the Navy Office of Information launched a public relations charm offensive, inviting reporters and politicians on overnight destroyer tours, placing articles in magazines about the Navy’s green stewardship of the ocean environment, and lobbying newspaper editorial boards. NRDC mounted a counteroffensive, and Reynolds had to juggle his work on the case with meeting editorial boards, writing op-ed essays, and being interviewed on radio and television. At every opportunity, he emphasized that NRDC and its co-plaintiffs had no intention of interfering with the military’s combat mission or national security. All they were asking was that the Navy observe the laws of the land and avoid harming marine mammals during training exercises.
To date, NRDC had held its own with the Navy in terms of favorable newspaper editorials—including from the New York Times, the Washington Post, and the Los Angeles Times—which was one meaningful measure of how his case was doing in the court of public opinion. Just as importantly, coverage by the major papers, newsweeklies, and networks had spiked now that the Supreme Court was hearing the case. Regardless of what the nine justices decided, the broader public had finally been introduced to the topic of acoustic threats to whales and what NRDC was asking the Navy to do to reduce them.
OCTOBER 7, 2008, 3:00 P.M.
Georgetown University Law Center, Washington, DC
On the day before the court was scheduled to hear NRDC v. Winter, Reynolds and Kendall were staging their third moot court in two weeks to polish Kendall’s oral arguments. At the two previous mock sessions, or moots, as they are called, law school professors at UCLA and Harvard had played the roles of specific judges, posing questions in the style of Chief Justice John Roberts or Antonin Scalia or Anthony Kennedy. Kendall had reserved the final moot for Georgetown University Law Center, which boasted the optimal stage for a dress rehearsal moot court: a precise replica of the Supreme Court chambers. Not only were the law professors seated in the position of the justices, but the dais was raised to the exact height of the original, precisely 18 feet in front of the facing counsel’s table. Behind the justices stood the same four neoclassical pillars, burgundy curtain, and hanging clock as in the actual courtroom a half mile away.
During oral arguments before the Supreme Court, each side is allotted a strict time limit of 30 minutes. But your carefully prepared 30-minute argument is likely to be interrupted by one or more justices within the first 20 seconds. Sometimes two judges will ask you questions almost simultaneously or address their remarks to each other. The challenge for the lawyer making an oral argument is to answer the justices’ questions directly and courteously, while never losing sight of the main points that you want to convey.
The focus of this final moot, and of much of the previous week’s preparation, was the presumed swing vote among the nine justices: Anthony Kennedy. If NRDC had a chance of preventing the high court from reversing its lower court victories, it lay in convincing Kennedy. Reynolds assumed that Chief Justice Roberts and Justices Scalia, Clarence Thomas, and Samuel Alito made up the four-justice bloc that had already voted to hear the case. The government needed to persuade only one other justice to reach the majority required to overturn. Justices Ruth Bader Ginsburg, David Souter, and Stephen Breyer were expected to be more sympathetic to NRDC’s position and therefore more likely to vote to affirm, despite the wild card of the military in this particular case.
The ninth justice, and the only one who had served in the military during wartime, was the elderly John Paul Stevens, who had been a naval intelligence officer during World War II. Would that incline him, Reynolds wondered, to defer to the Navy’s assessment of national security? But if Stevens was lost, the case was lost, so they focused on Kennedy, the likeliest swing vote decider in this case.
Reynolds and his team had combed through years of Kennedy opinions; even those he wrote when he was a judge on the Ninth Circuit Court of Appeals. But they found little to go on. The most encouraging decision was Kennedy’s break, during the previous term, with his conservative colleagues to cast the fifth and deciding vote to overturn indefinite internment of foreign fighters at Guantanamo Bay, Cuba, based on a habeas corpus petition. His rationale, one potentially applicable in the sonar case, was the notion that even the government must comply with the law of the land.
After lunch, NRDC’s entire legal team reconvened at the offices of Paul, Hastings, Janofsky & Walker, a corporate firm that had prepared one of the four amicus briefs submitted in support of NRDC and had agreed to lend one of its conference rooms for use as a war room. One last time, they peppered Kendall with questions, critiquing his responses, proposing nuances, and trying to anticipate the reactions of the nine justices and the potential traps that some of them might lay. About midafternoon, the meeting broke up, and Kendall returned to his hotel room to finish preparing his argument and get some sleep.
As Reynolds walked back to his own hotel, passing the White House and the monuments that lined the Great Mall, he tried to stop preparing and just enjoy the moment. The next morning, NRDC’s most high-profile sonar case would be argued in front of the highest court in the land. Perhaps it was a fitting climax to his 12-year battle with the US Navy, but it was not where Reynolds had wanted things to end up. He understood that they faced long odds. His young associates—Jasny, Wetzler, and Horowitz—liked to place joke bets before a big court date, if only to release some of the tension: If we win this case, they’ d wager, we’ll all take our families to Paris for the weekend. If we lose, we’ll have to watch Paris Hilton videos for a month. What Reynolds didn’t know was that his associates had handicapped NRDC’s odds against winning at 8–1.
Reynolds was convinced that NRDC had the better legal arguments in the case. But he knew that justice is less a meritocracy than a complex matrix of politics, personalities, and legal precedent. And Supreme Court justices, unlike lower-court judges, don’t have to worry about their decisions being reversed on appeal, which gives them a lot more latitude in their rulings.
What worried Reynolds most was the high court’s tradition of deferring to the military during wartime.
Perhaps the most egregious historical example was the Supreme Court’s 1944 decision to uphold the government’s right to confine more than 100,000 American citizens of Japanese descent in internment camps following the attack on Pearl Harbor—based solely on the military’s anxiety that some of them might be disloyal and give aid to the enemy. In his 6–3 majority opinion in Korematsu v. United States, Chief Justice Harlan F. Stone wrote: “We cannot reject as unfounded the judgment of the military authorities . . . that there were disloyal members of that [Japanese American] population, whose numbers and strength could not be quickly and precisely ascertained.” While Korematsu would stand as an embarrassing black eye in Supreme Court case history, it illustrated to Reynolds how otherwise thoughtful judges could subordinate their judicial review to perceived national security threats during wartime.
OCTOBER 7, 2008, 11:00 P.M.
Henley Park Hotel, Washington, DC
Finally, there was nothing left to do. Reynolds lay on top of his bed and stared at the ceiling while CNN recapped the day’s news. The Dow had plunged 508 points in its latest heart-stopping free fall following the Lehman Brothers meltdown. Iceland’s financial system was cratering, and several European banks appeared close behind. Reynolds didn’t have any money in the market, but it occurred to him that if the next day brought news of another major bank default, it might crowd out reporting on the Supreme Court arguments. It was hard enough to generate sympathetic media attention for stranded whales during wartime, much less in the midst of a global economic collapse.
Beyond the profound shift in the political landscape, so much had changed on a personal level since Reynolds had first confronted the Navy over ship shock back in 1994. Wetzler and Jasny had joined his legal team, gotten married, and started families. Just that week, Jasny’s wife was expecting their second son, so Michael was back west with his family instead of pacing the hallways of the hotel. After spearheading NRDC’s international sonar campaign with Jasny for four years, Wetzler had moved on to NRDC’s Chicago office to work on other cases.
Reynolds’ family had gone through its own life cycle during the 13-year sonar campaign. His parents were both gone now. His son and two daughters had grown from infants into adolescents. And his second marriage, which had begun with a surge of romantic optimism in the early 1990s, was finally and irretrievably finished. He’ d tried to keep things afloat, hoping for a renewal or at least a stay until the kids were up and out. But his and Susan’s life together had become untenable, and all that remained were the divorce negotiations. The best he could hope for now was to spare the kids some of the pain of the breakup, and to get things with his soon-to-be ex back on a civil footing so they could be decent parents, even if under separate roofs.
Many of his colleagues from his early days at the Center for Law in the Public Interest had gone on to lucrative careers in private practice. Some lived in big houses in the canyons and had box seats at the ballparks. Reynolds still lived in the 1920s-era house he’ d bought near the beach in Venice 20 years earlier, and he drove a ten-year-old Ford Focus with fender dents he’ d never bothered to repair. He didn’t care much about the car, though he sometimes felt bad for his kids when he picked them up at school. His legacy to his children wasn’t going to be financial. That much was clear. If he’ d failed to give them the kind of happy home life he’ d been blessed with, at least they could feel proud of the conservation work he’ d done.
Reynolds pulled his dark blue suit from the closet and laid it across the bed. He’ d bought the suit years earlier while in Bangkok, Thailand, for a meeting of the World Conservation Congress. It had been so inexpensive he’ d bought two of them. Since then, the suits had served triple duty at weddings, funerals, and court appearances. On closer inspection, he realized that the gabardine fabric had grown shiny and a bit threadbare.
Then he noticed a hole near the right shoulder of his jacket. A small circle of white batting showed through the dark fabric, too big to sew closed. He remembered a trick he’ d learned from his father—his role model since youth in the art of frugality. Once, en route to a choral concert he was conducting in Riverside, his father realized that he’ d left his black bow tie at home. Stopping quickly at Kmart, the only bow tie they could find featured garish black and white checks. So his father bought a black Magic Marker and colored in the white squares. He assured Joel that no one would notice.
Three blocks from the hotel was a CVS drugstore that stayed open till midnight. Reynolds was grateful for an excuse to take a late-night walk. It was a balmy October evening, and each time he crossed an intersection, he glimpsed the illuminated obelisk of the Washington Monument on his left. He found a navy blue Sharpie pen for $1.89. Back at the hotel, it took only a minute to dot in his repair. Not an exact match for the suit color but close enough to escape notice, he hoped.
OCTOBER 8, 2008
US Supreme Court
Reynolds awoke before dawn for the 10 o’clock oral arguments. The Supreme Court distributes fewer than 100 seats to the public on a first-come, first-serve basis, and the line on the sidewalk outside the court was already full by 6:30, with the majority of visitors appearing to be uniformed naval personnel. Reynolds recognized some friendly faces from NRDC’s Washington, DC, office. Naomi Rose from the Humane Society was there with her husband, dolphin researcher Chris Parsons.
Reynolds was relieved to see that his 16-year-old son, Sam, had made it to the court in time to secure a place in line. For this special occasion, Reynolds had flown Sam in from Los Angeles the evening before to hear the oral arguments.
Reynolds met Kendall inside the building, where they were ushered into the clerk’s conference room for the traditional preargument greeting from the clerk. Once inside the chamber itself, Reynolds was again surprised by the small scale and intimacy of the Supreme Court chamber. To the left of the bench, raised up like box seats in an old-fashioned theater, was the press gallery, with the most senior Supreme Court reporters seated closest to the justices. Nina Totenberg of NPR and the PBS NewsHour had the prime perch up front.
As the public spectators filed into the rear of the gallery, Reynolds noticed that the front row of invited guests, facing the justices’ dais, was filled with admirals in full dress whites. He shook hands with Admiral Daly, who had recently earned his third star and a promotion to deputy commander and chief of staff at US Fleet Forces Command.
Before Daly left Washington for Norfolk, the newly confirmed solicitor general, Gregory Garre, had asked him for a briefing on the military details of the case he’ d be arguing, which Daly had been pleased to provide. Daly had wanted to be here today, both to show the flag and to see how well the solicitor general had mastered the facts of the case.
At 10 o’clock sharp, the marshal of the court instructed everyone to rise as the black-robed justices filed in and took their assigned seats, by seniority, on either side of the chief justice. For all the tension surrounding the outcome, Reynolds delighted in the high drama of the scene. Beneath the theater of the judicial garb, the solemn chambers, and immutable rituals lay the ideological battle lines among the justices. And underlying the political blood feuds was the incalculable human factor, multiplied by nine. One woman, eight men. Their only common feature was their unassailable power to uphold or rewrite the law in the world’s most powerful democracy.
After six years of overlapping sonar lawsuits and more than a year of nonstop work on this one case, it was shocking how brief the oral arguments were. Not much longer than back-to-back rounds of Jeopardy!—and with just as strict a clock.
Gregory Garre had the first 30 minutes to argue the Navy’s case. During his opening, Garre did his best to stake out his central theme of national defense.
JUSTICE KENNEDY:
I take it that you are here because you find the decision of the Ninth Circuit, and I take it of the district court, prejudicial for the government on an ongoing basis; and what are the principal reasons for that?
&
nbsp; SOLICITOR GENERAL GARRE:
Because of its impact on national security, Justice Kennedy.
Justices Souter and Ginsburg soon began picking apart Garre’s contention that a federal agency has the authority to sidestep environmental protections by declaring an emergency. Souter pressed him to acknowledge that the Navy had brought the “emergency circumstances” on itself by waiting until the exercises had begun to conduct a complete Environmental Impact Statement. Justice Scalia waded in to throw the solicitor general a lifeline.
JUSTICE SCALIA:
Look, the problem you face—and maybe you’re being whipsawed—is that . . . at the time the Environmental Assessment was issued, it was a good faith completion of the Navy’s responsibilities. And that’s the argument being made against you. It assumes the Environmental Assessment wasn’t enough. And I’m not sure that . . . assumption is valid.
SOLICITOR GENERAL GARRE:
Well, that’s right. And as I indicated earlier—I want to be clear—the Navy believes that its Environmental Assessment was not only prepared in good faith, but was appropriate and reached the right conclusions.
Before his time elapsed, Garre made sure to assert, “No marine mammals will be killed as a result of these exercises . . . They hear the [sonar] sound, and they go in the opposite direction. It also has some temporary effect on their feeding patterns.”
Then it was Kendall’s turn to argue for NRDC. As soon as he began speaking, several justices—particularly Roberts—interrupted to make their points veiled as questions. The chief justice wondered aloud why District Judge Cooper hadn’t weighed the harm of sonar to marine mammals against “the potential that a North Korean diesel-electric submarine might draw close to Pearl Harbor undetected.” Alito asked skeptically if a judge could be considered an expert on antisubmarine warfare, adding, “Isn’t there something incredibly odd about a single district judge making a determination on a defense question that is contrary to what the Navy has made?” When Alito and Scalia started ganging up on Kendall, Ginsburg interjected a response that allowed him to reclaim the train of his argument.
War of the Whales: A True Story Page 38
