The Nine

by Jeffrey Toobin

  Stevens asked, “How long do you think it will take to try this case?”

  “It’s impossible to say,” Bennett answered, more prophetically than he knew. “I can tell you the president has spent, personally spent, a substantial amount of time on this case already. The very nature of this case is so personal that it would require his heavy involvement.”

  Scalia usually embraced expansive claims of executive power, but not this time. There was no way, he asserted, that Clinton was so busy. “We see presidents riding horseback, chopping firewood, fishing for stick fish—”

  The audience chuckled.

  “—playing golf and so forth and so on. Why can’t we leave it to the point where, if and when a court tells a president to be there or he’s going to lose his case, and if and when a president has the intestinal fortitude to say, I am absolutely too busy—so that he’ll never be seen playing golf for the rest of his administration—if and when that happens, we can…we can resolve the problem.”

  For Clinton, the timing of the argument couldn’t have been worse. After a desultory campaign by Bob Dole, the Republican nominee, Clinton had just won a solid but hardly overwhelming reelection. In the final days of the campaign, a putative scandal regarding Clinton’s fund-raising practices had preempted any post-election honeymoon Clinton might have enjoyed. In January 1997, the Jones case looked like a convenient vehicle for the justices to take Clinton down a peg, but the controversy was not yet a major threat to his presidency and a constitutional crisis for the nation. As for Clinton himself, he nursed a measure of paranoia about Rehnquist and his role in the Jones case. The swearing-in at his second inauguration took place just seven days after the oral argument in Clintonv. Jones. Clinton told friends that the chief justice shook his hand and said, “Good luck—you’ll need it.” The president took the gesture as vaguely menacing.

  A veiled threat hardly seemed like Rehnquist’s style, but it was true that the Court at that moment was preparing to demolish Clinton’s legal position in the case. As usual for the Rehnquist Court, the tenor of the oral argument turned out to be indicative of the result. On May 27, 1997, the Court ruled unanimously that Clinton could not postpone the lawsuit until he left office. Stevens’s opinion for the Court in Clinton v. Jones reflected the commendable principle that no man should be above the law, but it also showed a stunning naiveté about contemporary law and politics. Stevens dismissed Clinton’s concerns that the Jones case would represent much of a burden in the conduct of his presidency. “It appears to us highly unlikely,” Stevens wrote in an epically incorrect prediction, “to occupy any substantial amount of [Clinton’s] time.”

  As a result of the Supreme Court’s ruling, seven months later, on January 17, 1998, Clinton was forced to answer the questions of Jones’s attorneys at a sworn deposition that took place in Bennett’s office, a few blocks from the White House. The Court was usually pretty savvy about how its decisions would play out in the real world. But Stevens, who was nearing his eightieth birthday cloistered from the hubbub of life in the age of cable news, had not anticipated that Jones’s lawsuit would turn into a magnet for the president’s political enemies—a result that may have pleased some of the other justices. Still, Clinton himself made matters immeasurably worse for himself by lying in his deposition, saying, among other things, that he could not remember whether he was ever alone in the White House with Monica Lewinsky.

  The events resulting from the Court’s decision in Clinton v. Jones became landmarks in American history. While Clinton was facing Jones’s lawyers in January 1998, Kenneth Starr was expanding his investigation of the Whitewater land deal to include possible misconduct by Clinton in the Jones lawsuit. On August 17, as part of Starr’s probe, Clinton was forced to give grand jury testimony at the White House. Four months later, on December 19, 1998, Clinton was impeached by the House of Representatives for perjury and obstruction of justice.

  The vote in the House meant that, for the first time in more than a century, there would be a presidential impeachment trial in the Senate, and under the Constitution the chief justice was obligated to preside. As it happened, Rehnquist may have been the best-qualified person in America for the job. Rehnquist used his free summers to produce a series of bland but readable texts, including Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson, which was published in 1992.

  Trent Lott, the Mississippi Republican who was then the majority leader of the Senate, decided to choreograph Clinton’s trial to match, as closely as possible, the proceedings against the first President Johnson, in 1868. Rehnquist was a stickler for tradition, too, and he enjoyed reviving those musty rituals. Among these traditions was one that was especially painful for the senators. Under the customs of impeachment trials, all one hundred senators had to watch the entire proceedings in silence from their seats in the Senate chamber; in ordinary circumstances, senators generally visit the floor to vote or speak and then disappear.

  As it turned out, Rehnquist had little to do. The Senate heard from no live witnesses, and the “trial” consisted almost entirely of statements by the House “managers”—the members of the Judiciary Committee who served as prosecutors—and Clinton’s defense lawyers. Like any other politically savvy observer, Rehnquist could see that there were never anywhere near two-thirds of the Senate prepared to remove Clinton from office, and he wisely chose to stand back and let the trial grind to its preordained conclusion. The dreary proceedings lasted five weeks.

  In all that time, Rehnquist made only a single substantive ruling. Throughout the managers’ opening statements, they referred to the senators as “jurors.” Democrats wanted to emphasize that the Constitution called on the senators to make a broader, political assessment about the propriety of removing the president, not simply the narrow judgment expected of jurors in a criminal case. After several statements from the prosecutors, Senator Tom Harkin of Iowa rose from his chair and said, “Mr. Chief Justice, I object to the use and the continued use of the word ‘jurors’ when referring to the Senate sitting as triers in the trial of the impeachment of the president of the United States.”

  In his phlegmatic way, Rehnquist said he saw Harkin’s point. “The chair is of the view that the objection of the senator from Iowa is well taken,” he said. “Therefore, counsel should refrain from referring to the senators as jurors.”

  Harkin was delighted. Moments later, he whispered to Senator Daniel Patrick Moynihan of New York, who was seated at the next desk, “I just won my first Supreme Court case!”

  At first, the trial generated a flurry of excitement at the Court, and there was a waiting list for the few seats allotted to the justices and their staff. Soon enough, though, the seats went begging. Rehnquist told anyone who asked that he found the experience boring. Still, there was no denying the sense of history in the Senate chamber on February 12, 1999, when the trial came to an end. For the first time in the trial, there was a nervous catch in Rehnquist’s voice when he said the words, “Is the respondent, William Jefferson Clinton, guilty or not guilty?”

  The outcome had never been in doubt. Impeachment supporters won forty-five votes for the first count and fifty for the second, both well short of the sixty-seven they needed. (Arlen Specter, the crankily independent Republican from Pennsylvania, chose to vote the old Scottish verdict of “Not proven,” which was recorded as a no.)

  With the senators seated solemnly before him, the chief justice announced, “It is, therefore, ordered and adjudged that the said William Jefferson Clinton be, and he is hereby, acquitted of the charges….”

  Later, Rehnquist would sum up his performance in Clinton’s impeachment trial with an apt line from one of his favorite Gilbert and Sullivan operettas, Iolanthe: “I did nothing in particular, and I did it very well.”

  Iolanthe also figured in a change in Rehnquist’s aesthetics. A few years before the impeachment trial, Rehnquist showed up for an argument at the Court in a new robe, one with fou
r gold stripes on each sleeve. Evidently, he was copying the costume of the Lord Chancellor from a local production of the operetta. Since coming to the Court, Rehnquist had toned down the wardrobe that had so horrified Richard Nixon, but he had never before shown much interest in his appearance. “We thought it was a joke,” O’Connor said of the new robe. The stripes on the robe may have been a bit of whimsy, but his colleagues also knew better than to copy them. The most casual justice had become a chief who zealously guarded his perquisites. Occasionally, a hapless advocate would make the mistake of addressing him as “Justice Rehnquist”—and he would snap, “That’s Chief Justice!”

  By this point, Rehnquist was devoting more of his energy to the mechanics of the Court—like the need to renovate the Court’s deteriorating building—than to the substance of its decisions. He was obsessed with getting through the Court’s business. One Sunday around the time of Clinton v. Jones, Washington was hit by a freak snowstorm that deposited twenty-one inches of snow. The city deals notoriously badly with even small amounts of snow, so the federal government was shut down the following day. But Rehnquist thought the Court should never concede to the elements. He ordered the Monday arguments to proceed and directed the Court staff to send jeeps to the homes of the justices.

  The experience turned out to be a kind of Rorschach test for the justices’ characters. Carter Phillips, a prominent advocate before the Court who had to argue on Monday morning, lived near Scalia in the Virginia suburbs and asked if he could catch a lift with him. Scalia agreed and said Kennedy would be coming along as well. The roads were impassable, however, and Scalia had to walk almost a half mile in waist-deep snow just to get to the car. Sweating profusely, wearing a Russian hat and a short-sleeved shirt under his coat, Scalia was livid.

  “This is insane,” he said. “What is the chief thinking? We’re risking our lives out here.”

  But the justices all respected Rehnquist so much (while also fearing him a little) that no one wanted to be late. Worried that time was growing short, Scalia said to the driver, “By the power invested in me, I authorize you to run these lights!”

  “Nino,” Kennedy cautioned, “we don’t have the power to run a red light.” They made it at 9:30, with a half hour to spare. “I even have time to read your brief now, Phillips,” Scalia cracked.

  Another court car went to fetch Breyer and Ginsburg, who lived near each other—Breyer in Georgetown and Ginsburg at the tony Watergate complex. Elegant as always, if also slightly disengaged from the real world, Ginsburg chose to wear a straight skirt and high heels. Because of the snow on the ground and Ginsburg’s outfit, the driver, who usually worked in the clerk’s office, had to lift the tiny justice into the air and deposit her in the car. (Later, Ginsburg wrote the fellow a letter of recommendation for law school.) After they arrived, the industrious Breyer directed traffic in the Court’s basement garage.

  Souter, the self-sufficient New Englander, who had lived with snow for most of his life, rejected all offers of help. He said he would drive himself in his own car—which promptly stalled in a snow-bank. Finally rescued by Supreme Court police officers, Souter wound up being the only one late for Court.

  Rehnquist made no reference to the weather, and the argument went off as planned. (It happened to be the case about the injured railroad employee, which Phillips won unanimously, with Thomas writing his favorite opinion.)

  The biggest change in the chief, though, was in the opinions he produced. As a junior justice, back in the 1970s, he became known for his long and discursive opinions, where he spelled out his conservative philosophy, often in dissent. But his opinions shrank when he became chief justice. In part, Rehnquist was just reflecting his shifting role—from outsider to institutional embodiment of the Court. But fatigue was a factor, too. The chief ran his chambers like an assembly line, with his clerks expected to produce first drafts in ten days or less. Only if they were overburdened would he write a first draft himself. Rehnquist was a brutal editor, stripping his clerks’ work down to the essentials, taking out what he called, with some contempt, “the reasoning.”

  And so in the fall of 1999, the Court reached another turning point. Rehnquist’s age started to limit his effectiveness. More important, the country at large had soured on the Gingrich Republicans who had taken over the House in 1994 and then launched the impeachment drama of 1998. Clinton was more popular than ever, and the nation, basking in unprecedented prosperity, had no discernable appetite for a dramatic lurch to the right.

  In short, in October 1999 the “Rehnquist revolution,” which was never terribly revolutionary in the first place, ground to a halt. On some of the issues that meant the most to him—states’ rights, church-state relations, criminal law, and abortion—Rehnquist lost critical cases. The chief even surrendered in one of the causes that had meant the most to him since his days as a young Republican in Arizona.

  Rehnquist loved to sing, and he always led the caroling at the Court’s annual Christmas party. (Every year or so, a group of law clerks would write the chief justice an earnest letter complaining that the party created an atmosphere of exclusion for non-Christians; Rehnquist, who pointedly never adopted the term “holiday party,” would reply by inviting the young lawyers, in effect, to get over it.) In his early years on the Court, Rehnquist even sometimes wrote the sketches for the occasion. In 1975, as Jeffrey Rosen first reported, he wrote a song about his least favorite Supreme Court opinion, Miranda v. Arizona. Sung to the tune of “Angels from the Realms of Glory,” it went: “Liberals from the realm of theory should adorn our highest bench / Though to crooks they’re always chary / At police misdeeds they blench.” The members of the chorus then fell to their knees and sang, “Save Miranda, save Miranda, save it from the Nixon Four.” Nixon’s nominees were Warren Burger, Harry Blackmun, Lewis Powell, and, of course, Rehnquist himself.

  Miranda embodied everything that Rehnquist detested about the liberal activism of the Warren Court in the 1960s. In the decision, written in 1966 by Earl Warren himself, the Court ruled that any criminal suspect in custody must be read his or her rights. There was no conceivable claim that the framers of the Constitution or Supreme Court justices for a hundred and seventy-five years thought that any such warnings were necessary. Warren and his colleagues had simply invented the requirement to address what they regarded as flaws in the criminal justice system. Rehnquist made clear in opinion after opinion that he didn’t think that the warnings were needed, and that they represented a judge-made impediment to the conviction of guilty and likely dangerous criminals. When the case came up in 1999, Rehnquist finally had a chance to drive a dagger into the case, when the Court granted cert on a case addressing whether Miranda should still stand.

  The real question in the case was, even if Miranda had been wrongly decided in the first place, could the Court walk away from such a well-known precedent? At the oral argument of the case, Breyer made just this point in describing Miranda as “words that I think probably two billion people throughout the world know. He must be warned, prior to any questioning, that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him. All right? Now, that’s a hallmark of American justice in the last—thirty years?”

  The case opened a window on what it meant to be a “conservative” on the Supreme Court—the Rehnquist mode or the Scalia and Thomas approach. To the surprise of many people who followed his career, Rehnquist not only joined the majority in the 7–2 decision upholding Miranda but wrote the opinion himself. Rehnquist’s words in Dickerson v. United States were characteristically terse, and somewhat grudging, with little of his dreaded “reasoning,” but his thinking was plain: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” the chief justice wrote. “Whether or not we would agree with Miranda’s reasoning
and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.” Scalia, joined by Thomas, wrote one of his classic fire-breathing dissents—and illustrated what a conservative Court, untethered to the rule of precedent, would do to landmarks like Miranda (and Roe v. Wade).

  As usual, Scalia couldn’t resist engaging in a little mockery, even of his friend the chief justice. It was true, as Scalia jibed in his dissent, that Rehnquist himself had in the past advocated “an outright rejection of the core premises of Miranda.” And Scalia concluded with the sort of purple prose that attracts attention more than converts: “Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance.” It was clear by this point that Scalia didn’t need better arguments to win over his colleagues; what he needed was different colleagues.

  10

  THE YEAR OF THE ROUT

  By the final years of Bill Clinton’s presidency, the conservative revolution at the Supreme Court was sputtering. On the issues that mattered most to the members of the Federalist Society and their allies—abortion, federalism, church-state relations, the death penalty, among others—the moderates on the Court held sway.

  By this time in Congress, the Republicans, well accustomed to majority status, showed less interest in limiting the size of a federal government that they, to a great extent, now ran. In the sphere of church-state relations, the momentum on the right had also slowed. The career of Jay Sekulow was following a classic Washington trajectory: he came to the capital to do good and stayed to do well.