The Nine

by Jeffrey Toobin

  Senator Kennedy resumed pushing for Stephen Breyer. Like many other things about the earlier selection process, news of Clinton’s dismal interview with Breyer had leaked. So Kennedy, ever resourceful, sent the president a videotape of a witty speech Breyer had given to a group of visiting judges from Russia. See, the Massachusetts senator was saying, he’s not such a stuffed shirt. Breyer was fortunate, too, that Nussbaum had been replaced as White House counsel by Lloyd Cutler, a Washington corporate lawyer with a great fondness for Breyer.

  For Clinton, though, the real issue was Richard Arnold, the federal appeals court judge from Little Rock.

  Arnold belonged to frontier aristocracy. In the early part of the century, his maternal grandfather, Morris Sheppard, had served as a senator from Texas for almost three decades. His daughter married into the Arnolds of Texarkana, where the men had been practicing law for generations. Born in 1936, Richard received a classical education, studying Latin and Greek first at Phillips Exeter Academy and then at Yale, where he graduated first in his class. In a debate with students from Oxford and Cambridge who quoted Cicero in Latin, Arnold clinched the argument by replying from memory with the next passage of the work. Arnold was likewise valedictorian at Harvard Law School, class of 1960, ahead of his classmate Nino Scalia. He clerked for Justice Brennan on the Supreme Court. Such were his intellect and charisma that Arnold was nearly a legend before he even began practicing law.

  Arnold settled in Arkansas, working alternately in private practice and government service, mostly for Governor and then Senator Dale Bumpers. He wrote a new constitution for the state. In 1978, President Carter nominated him to the district court and, two years later, to the Court of Appeals for the Eighth Circuit. In a remarkable testament to the esteem in which the Arnold family was held, the first President Bush named Richard’s younger brother Morris to the same court in 1991. They were the only brothers in American history to serve on the same federal court of appeals.

  In the legal profession, an Arnold nomination would have been greeted with something close to acclamation. Richard’s politics were moderate; in his best-known ruling, in 1979, he forbade the state of Arkansas from limiting high school girls to half-court basketball while allowing boys to play full court. More than any ideology, Arnold was better known for his eloquence and fairness, and he was admired across the political spectrum. After Blackmun stepped down, more than a hundred federal judges wrote a joint letter to Clinton asking that he nominate Arnold—their action remains unprecedented. Scalia, his law school classmate, called Arnold and asked, “Would it help if I screamed how awful you are?” Clinton himself adored, even looked up to Arnold. They were occasional golfing partners, and as with everything else, Arnold excelled at the game.

  There was only one problem. Arnold, who was fifty-eight, had been diagnosed with cancer almost two decades earlier. In blunt terms, Clinton didn’t want to nominate Arnold if he thought the judge was soon going to die.

  Steven Umin, a Washington lawyer and close friend of Arnold’s since their days at Yale College, understood that Arnold’s health would be the major issue in his candidacy for the Court. He thought the only way to address the issue was head-on. Two of Umin’s former law partners, Edward Bennett Williams, and Larry Lucchino, later a prominent baseball executive, had been treated for lymphoma by Lee Nadler, a professor at the Dana-Farber Cancer Institute at Harvard Medical School. Nadler was among the world’s foremost authorities on Arnold’s disease. Most relevantly, Nadler had helped push Paul Tsongas out of the race for president in 1992, saying that the former senator’s cancer remained life-threatening. (Tsongas died of the disease in 1997.) Umin thought if Nadler would offer a positive prognosis for Arnold, who had a similar illness to Tsongas’s, Clinton would surely appoint him to the Court.

  Through Mack McLarty, the White House chief of staff (and himself a great fan of Arnold’s), Umin arranged for Clinton himself to call Nadler and ask him to review Arnold’s medical file. A pugnacious character with abundant self-confidence, Nadler turned Clinton down. “Mr. President, you can ask me to do anything you want,” Nadler said. “But if somebody is going to ask me to look at this guy’s records, it’s got to be him. Then I would report to him, and he could share the report with you.”

  Amused by the doctor’s moxie, Clinton said he was sure Arnold would approve and he would see that the records were sent to Nadler promptly. In their one telephone conversation during this period, a follow-up to Clinton’s call, Arnold told Nadler, “Just do the right thing, doctor. Tell the truth.”

  A few days later, Arnold’s records arrived at Nadler’s home, outside Boston. The first clue to the seriousness of Arnold’s condition was the size of the file—thousands of pages, which stacked ten feet high. The judge had been diagnosed in 1976, eighteen years earlier, with low-grade non-Hodgkin’s lymphoma. He was treated immediately and suffered few ill effects. But Arnold’s disease did not follow a usual course. In 1991, a lymphoma was found in his colon. In 1993, he had radiation to eliminate tumors in his sinuses. Also that year, Arnold received chemotherapy to eliminate malignant cells in his blood and bone marrow.

  The paradox was that Arnold had continued to function more or less normally. The disease was not debilitating. Some people lived with these kinds of recurrences for many years. But Nadler saw that the tumors were changing biologically, making them harder to treat. At the least, years of difficult chemotherapy were in Arnold’s future. On the morning of Friday, May 13, Nadler called Arnold, who was sitting on an appeal in Minneapolis, and told him his conclusions. “Lee, you have no choice,” Arnold said. “You have to say no.”

  At 1:00 p.m. that day, Nadler reached Clinton, who was on a speakerphone in the Oval Office. The conversation began in a lighthearted vein, when Nadler said he could hear that Clinton was eating lunch.

  “What are you eating, Mr. President?”

  “A Big Mac and fries,” Clinton said.

  “As an oncologist, I don’t think that’s so smart.”

  Nadler said there was no way he could say that Arnold’s disease “would not interfere” with his duties as a Supreme Court justice. He had cancer all through his body. What Arnold needed was skilled, continuing care.

  “Any way we can turn you around on this?” Clinton asked. There wasn’t, said Nadler.

  At 3:45, Clinton asked his staff to leave him alone to think about what to do. A half hour later, he reached Arnold at the Memphis airport, where he was changing planes on the way home to Little Rock. Clinton was weeping when he said he wasn’t going to appoint him.

  Far from holding a grudge against Nadler, Arnold asked to become his patient. His distinguished service on the judiciary continued, as did his cancer treatments. In time, though, chemotherapy became less effective, and he died on September 23, 2004, at the age of sixty-eight. Eight Supreme Court justices, including Stephen Breyer, issued statements mourning Arnold’s passing, an unprecedented set of tributes to a lower-court judge.

  At 6:15 p.m. on May 13, Clinton went on television to nominate Breyer. The announcement was peculiar, because the White House, eager to make the evening news, didn’t even bother to wait for Breyer to come down from Boston, so the president stood alone in the Rose Garden. This search had taken just thirty-seven days, compared with the eighty-seven-day marathon to pick Ginsburg, but this selection, too, ended with a kind of disappointment for Clinton. His words were perfunctory as he talked about Breyer, and the president’s face bore traces of the sadness he felt in learning the severity of Arnold’s illness. Still, with Breyer as with Ginsburg, the nomination would come to be seen as a great success. Clinton had again selected a justice who won close to universal praise and reflected the president’s own values and views with great precision.

  When Breyer finally did make it to the White House the following Monday, he made a subtle allusion to the disaster of his previous visit. “I’m glad I didn’t bring my bicycle down,” he said. At fifty-five, Breyer had an almost childlike glee at bei
ng nominated. Clinton remembered that even though Breyer had been all but publicly humiliated in the contest for White’s seat, he still came to Ginsburg’s swearing-in.

  The gesture was characteristic. Breyer was the sunniest individual to serve on the Supreme Court in a great many years. Optimism was the core of his character. He had a résumé that was almost as dazzling as Arnold’s—Stanford, Marshall Scholar at Oxford, Harvard Law School, clerkship for Justice Arthur J. Goldberg, then tenure at a young age at Harvard Law—but the biggest influence on him came at a less exalted institution.

  Breyer was a product of a specific place and time—San Francisco in the 1950s. When he became famous, much later, the only one of his alma maters that he would invariably mention in speeches was Lowell High School. “That doesn’t mean a lot to you, but it means a lot to me,” he would say, to puzzled audiences. Lowell was the most elite public school in the city, with competitive admissions, and the place sizzled with the ambitions and smarts of recent immigrant offspring. This was not the San Francisco of the following decade, of Haight-Ashbury and the Summer of Love, but rather a growing metropolis that was both cozy and booming. In summers, Breyer worked as a “hasher” (a slinger of hash) in a city-owned camp in the Sierras where the families of firemen, policemen, doctors, and lawyers mingled happily. Few places, before or since, matched San Francisco of that era for civic harmony and commitment to community. (As Breyer would always note of this period, the options were not quite as open for blacks and women.) For forty years, Breyer’s father worked as a lawyer for the San Francisco school system. His mother was a homemaker who volunteered with the Democratic Party and the League of Women Voters.

  For all his degrees, the most important part of Stephen Breyer’s education began in the midseventies when he commuted from Harvard to Washington to work as a counsel for the Senate Judiciary Committee, then chaired by Edward Kennedy. There, Breyer eventually became chief counsel and encouraged Kennedy to embrace a cause that moderated his image as a doctrinaire liberal: deregulation—of the airlines, of trucking, and of the natural gas industry. It was an unusually harmonious and productive time for the committee, and Breyer won the admiration of senators across the political spectrum.

  This turned out to be especially important in 1980, when Jimmy Carter nominated Breyer to the First Circuit. Ronald Reagan had already won the election when Breyer came before the committee, and the Republican chairman, Strom Thurmond, had no reason to let the lame duck president fill a precious seat on the court of appeals. But Kennedy prevailed upon Orrin Hatch to ask Thurmond to let Breyer through. Calling Breyer “a member of the family,” for his work on the committee, Hatch won over the venerable chairman. Breyer was the last judge confirmed before Carter left office. Amid similar good feelings, the Senate confirmed his nomination to the Supreme Court by an 87–9 vote on July 29, 1994.

  Breyer arrived at the Court bearing an uncynical love of government. He believed that government existed to serve people and solve problems, and to a great extent, that it did. More to the point, Breyer admired and trusted Congress and thought that the people’s representatives generally worked in the people’s interest. After the first or second time, most justices wearied of attending the president’s State of the Union address, fretting about the question of when to applaud and generally disdaining their awkward status at the occasion. But Breyer felt his attendance was a gesture of solidarity with the other branches of government, and he never missed it—even when he was the only justice there.

  In other words, as Stephen Breyer began his first full term on the Court, he was profoundly out of step—with the country, with the Congress, and even, to some extent, with his new colleagues. The country, it seemed, had turned on the very idea of government and especially on its personification, the members of Congress. On November 8, 1994, voters unseated the Democratic majority in both the House and the Senate. That same day, as it happened, the Court heard arguments in a case that threatened everything Breyer believed in—United States v. Lopez.

  The members of the Federalist Society and others who wanted the Court to undermine the constitutional basis for a strong federal government needed a case where the issue was raised. So in the strange serendipity that often yields important cases, the matter of Alfonso Lopez Jr. appeared with exquisite timing.

  On March 10, 1992, Lopez, a twelfth grader, arrived at Edison High School in San Antonio carrying a concealed .38 caliber handgun and five bullets. Acting on an anonymous tip, school authorities confronted him, and Lopez disclosed the weapon. He was arrested and charged under Texas law with possession of a firearm on school premises. But the state charges were dismissed the next day when federal agents accused him of violating the Gun-Free School Zones Act of 1990, which prohibited possession of a gun at or near a school. Lopez would have walked quietly away from the case if he had been sentenced to probation. But the judge gave him six months, which interfered with Lopez’s plans to join the Marine Corps, so he asked his public defender to appeal. The facts of the case were simple; the law, it turned out, was not.

  By the time Lopez’s case began working its way through the courts, the ideas championed by the Federalist Society had coalesced. The society itself had grown to forty thousand members, with an annual budget of more than $3 million. The movement even got a name, courtesy of Judge Douglas H. Ginsburg, who was once briefly famous. After Robert Bork’s nomination failed in the Senate, Reagan named Ginsburg, then a forty-one-year-old judge on the D.C. Circuit, as his replacement. Ginsburg’s nomination quickly collapsed, however, following news reports that he had smoked marijuana while he was a law professor. Ginsburg soldiered on as a fervently conservative appeals court judge, and he later published an article in Regulation, a libertarian magazine published by the Cato Institute. Ginsburg wrote in an admiring tone about the state of constitutional law before 1937, when the Supreme Court struck down virtually all efforts to regulate the economy. The Court had relied on doctrines like the Commerce Clause, which now represented what Ginsburg called the “Constitution in Exile.” “The memory of these ancient exiles,” he wrote, “banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty—even if perhaps not in their own lifetimes.”

  In short, the Constitution in Exile movement represented a direct threat to the modern welfare state, and the United States v. Lopez case loomed as its first major test in the Supreme Court.

  As usual, O’Connor had an early question for Drew S. Days III, the solicitor general, who was defending the constitutionality of the guns-in-schools law.

  “Is the simple possession of something at or near a school ‘commerce’ at all? Is it?”

  “I think the answer to that is that it is,” Days answered.

  “I would have thought that it wasn’t,” O’Connor replied in her direct way, “and I would have thought that it, moreover, is not interstate.”

  It was an inauspicious start to Days’s argument, which went downhill from there. O’Connor, Kennedy, Rehnquist, and Scalia demanded to know how Congress could presume to regulate mere gun possession, near a school or otherwise.

  But the subtext of the questions was almost as significant as the words themselves. The justices oozed contempt for Congress, which they clearly regarded as a bumbling, only quasi-respectable institution.

  “Can you tell me, Mr. Days,” Scalia said, with a smirk, “has there been anything in our recent history in the last twenty years where it appears that Congress made a considered judgment that it could not reach a particular subject?”

  Laughter drowned out the beginning of Days’s answer.

  At another point, Days said that Congress had a “rational basis” for connecting school violence to commerce.

  In response, Souter quipped, “Benjamin Franklin said, ‘It is so wonderful to be a rational animal, that there is a reason for everything that one does.’ ” Again, laughter filled the
courtroom.

  Through most of its history, the Supreme Court had close ties to Congress. Many justices were ex-senators. But the Rehnquist Court had no such connections. Rehnquist and Scalia had worked only in the executive branch, O’Connor and Souter in state government, Kennedy, Stevens, and Ginsburg in private practice and law schools. Thomas, who observed his customary silence during the Lopez argument, had worked briefly on the staff of Senator John Danforth of Missouri, but the searing experience of his confirmation hearings permanently soured him on Congress. Breyer alone felt any sort of kinship with this coordinate branch of government.

  It was still early in Breyer’s career on the Court, so he had not yet asserted himself as the powerful presence in oral arguments that he would become. But finally, frustrated at both Days and his colleagues, Breyer unloaded on the public defender who was representing Lopez. “So what would you say about the obvious argument, the simple argument against your position, that this isn’t a borderline case?

  “The guns move in interstate commerce, likely, the books do, the desks do, the teachers might,” Breyer said. “People will not move to places in this country where children are being killed in schools by guns, and in fact, if the Federal Government can’t do something about it, maybe the whole economy will go down the drain in a thousand obvious ways.” Breyer referred to a case from 1942 where the Court said that homegrown wheat was sufficiently connected to interstate commerce to be regulated under the Commerce Clause. “If some homegrown wheat affects interstate commerce, which I guess is a borderline question economically, certainly guns in schools do really affect commerce.” All Breyer had done was summon the unquestioned state of constitutional law for more than a half century.

  But Breyer’s advocacy (in the form of his questions) did not persuade a majority of his colleagues. On April 26, 1995, the Court ruled 5–4 that Congress had violated the Commerce Clause in passing the Gun-Free School Zones Act. Rehnquist’s opinion (joined by O’Connor, Scalia, Kennedy, and Thomas) represented the first time since 1935 that the justices had invalidated a law on the grounds that Congress exceeded its authority under the Commerce Clause. The rhetoric of the opinion meshed with that of Newt Gingrich, the newly installed Speaker of the House. Quoting James Madison in Federalist No. 45, Rehnquist wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The scope of “big government” was officially under assault from both sides of First Street.