The Nine

by Jeffrey Toobin

  In one respect, Sekulow did succeed in his goal of creating an American Civil Liberties Union of the right. Like the ACLU, Sekulow’s American Center for Law and Justice built a financial empire based largely on direct-mail (and e-mail) contributions from a loyal base of subscribers. But the differences between the ACLU and ACLJ turned out to be more important than the similarities. Sekulow chose not to create an institution like the ACLU but instead to build a monument to himself.

  Sekulow drew a salary of more than $600,000 per year, but that was only the beginning of the riches he extracted from the complex financial dealings of the ACLJ and its related organizations. He also turned the nonprofit corporation into a family business. ACLJ raised about $14 million a year, but much of that was funneled into another entity called CASE, whose board of directors consisted of Sekulow, his wife, Pam, and his son Jordan. Jay’s brother Gary was chief financial officer for both organizations. Gary, Pam, and Jordan Sekulow all drew salaries for their duties, and Jay’s other son, Logan, was given a late-night comedy show on Christian television sponsored by CASE. According to a review of the groups’ finances by the journalist Tony Mauro, Sekulow’s organizations paid for his full-time chauffeur, leased private planes (one from a company owned by his brother’s wife), and bought several homes—all for the benefit of Jay and his family.

  The centerpiece of Sekulow’s empire was a town house less than a block from the Supreme Court. The ACLJ bought the building for $5 million, then meticulously renovated it, with such features as a hand-painted mural of the Washington skyline in the ground-floor conference room. (The mural cost more than $40,000.) The ACLJ also bought the town house next door to its headquarters for $1.5 million for the use of Sekulow and his family, as well as an $850,000 home in Virginia Beach and a “retreat” in North Carolina. By the late nineties, the convenient D.C. town house allowed Sekulow to become a familiar figure at the Court, whether he was arguing cases or just stopping by to chat up the Supreme Court beat reporters.

  Sekulow kept bringing cases to the Court as well, but in the 1999–2000 term, he discovered the limit of his free speech arguments. The case arose out of one of the central rituals of Texas life—the high school football game.

  The local school board in Santa Fe, a small town in the southern part of the state (not to be confused with the city in New Mexico), had studied the Court’s precedents with care, trying to carve out a role for prayer at the Friday night football games. Following extensive negotiations and litigation, the board established a program where a student elected by his or her peers would give a “nonsectarian, nonproselytizing” prayer before each game. Nevertheless, two students, a Catholic and a Mormon, sued to stop the practice, arguing that the policy violated the Establishment Clause.

  Sekulow, representing the school board, went before the justices with what had worked before: “Santa Fe Independent School District has adopted a neutral policy which simply permits student-led, student-initiated speech at football games,” he said. The policy “allows for the individual student to determine the content of the message. That message may include a prayer at the student’s discretion…. The Santa Fe policy creates a venue for student expression. It is neutral as to religious or secular speech.”

  This time, however, the justices looked behind Sekulow’s characterization of what was happening. The record in the case showed that the entire policy was designed by the school to allow students to lead prayers—not just “speech”—at games. “This is not a neutral speech policy,” Souter said to Sekulow. “It is not merely religious subject matter. It is religious worship. It is an act of religious practice.”

  “And if the student decides to engage in a prayer,” Sekulow answered, “that is speech protected by the First Amendment, and to then say that a policy—”

  “As private speech,” Souter shot back. “The question is whether that speech can be, in effect, involuntarily inflicted upon those who may not want it by the power of the state.”

  Scalia tried to come to the rescue of the school board’s policy, but this time his bombastic style hurt his cause. He attempted to trivialize the dispute by pointing out that the two students who brought the case didn’t even use their real names, which was why the case was called Santa Fe Independent School District v. Doe. “Could I ask you about that? That’s just a curiosity I have in this case. I don’t even know who the plaintiffs are,” Scalia said. “Do people have rights to sue anonymously in federal court? Is anybody who just doesn’t want it known that he’s bringing a lawsuit, he’s ashamed of it for one reason or another, can sue anonymously?”

  But it wasn’t a question of shame—it was fear. The students who had challenged the policy had been pushed, threatened, and placed in so much danger that the local judge directed that their names be taken off the complaint. That, of course, was precisely the point—that the state had harnessed the power of religious conformity to exclude outsiders.

  In an opinion by Stevens, the Court struck down the student-led prayers in Santa Fe by a 6–3 vote, with Rehnquist, Scalia, and Thomas in dissent. The core of Stevens’s opinion was a rejection of Sekulow’s argument that the prayers were merely “private speech” by the students. “These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events,” he wrote. “The expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy.” It was no answer, Stevens continued, to say that students who were offended by the prayers could simply choose to avoid the games. The school district could not “exact religious conformity from a student as the price of joining her classmates at a varsity football game.”

  Sekulow was disappointed, of course, but the defeat in the Santa Fe case, combined with his earlier victories before the Court, actually wound up being a model for how the Supreme Court ought to work. The majority of the Court had settled on a reasonable and comprehensible rule for religious observances on government property—that the government had to allow genuinely private religious activity, but at the same time officials could not sponsor or endorse such rituals. After Santa Fe, the Court stopped getting so many of these cases because the lower courts generally could apply these rules on their own. The Court’s compromise on the issue didn’t satisfy everyone, but it didn’t offend everyone, either—which made it a classic expression of the style of the Rehnquist Nine at this moment in its history. This was not a Court for the true believers—for Scalia, Thomas, and even Rehnquist himself—but rather a Court for the middle-of-the-road majority.

  Mostly, that meant O’Connor. Increasingly, it also meant Stephen Breyer.

  Like most other justices, Breyer took a few years to feel fully comfortable on the Court, but by the last years of Clinton’s term, he had come into his own. On one level, Breyer made an unlikely power broker. He could be breathtakingly oblivious to his surroundings. One of his law clerks never showed up for work until noon; another lay on the floor for long periods because of a back condition. In neither instance did Breyer inquire or even, apparently, notice, as long as his chambers’ work was done. He was also renowned among law clerks for conducting high-volume discussions of Court business in restaurants and other public places. Breyer was so engaged in the work of the Court that he sometimes ignored the exigencies of everyday life.

  But Breyer had been paying attention when he watched his former boss Ted Kennedy push legislation through the Senate, building one coalition at a time, often with sometime adversaries. In the same way, Breyer worked his colleagues—decorously, respectfully, but unmistakably—to try to get them to see things his way. This approach was hardly unique in the Court’s history—it was a crucial part of the Brennan legend—but the Rehnquist Court had no comparable figure. Souter and Thomas were downright reclusive, and Stevens and Ginsburg tended that way; Kennedy, sometimes prickly, often mysterious, also kept to himself; Scalia prided himself on never lobbying, and Rehnquist had
no interest in anything that might disrupt the swift procession of cases from oral argument to conference to opinion.

  Once, around this time, the chief read a draft opinion of one of Scalia’s attacks on O’Connor and immediately summoned him to the phone. “Nino, you’re pissing off Sandra again,” Rehnquist said. “Stop it!” For her part, O’Connor was willing to entertain suitors from her queenly perch at the center of the Court, but she would not deign to hustle for votes. Breyer would.

  Such was the justices’ isolation from one another that the best advocacy could be done only in oral argument, when they were a captive audience for one another. For this reason, Breyer planned his questions with care, not because he was especially interested in the answers but because his questions were a way of making his case to his colleagues. Like the law professor he used to be, Breyer favored hypothetical questions. At times, they could be overly long and complex, and Breyer’s point would be lost; once, mysteriously, he asked a question about taking a pet oyster for a walk in the park. But on other occasions Breyer distilled an issue to its essence. It might be an exaggeration, but not by much, to say that a single question from Breyer on November 10, 1999, brought the “federalism revolution” to a close.

  In the early nineties, several states were making millions of dollars selling the information in their Department of Motor Vehicles databanks to direct-mail operators, insurance companies, and other marketers. Citizens began objecting to the practice, and Congress responded in 1994 by passing the Driver’s Privacy Protection Act, which essentially told states they couldn’t make such sales without the drivers’ consent. South Carolina sued to stop enforcement of the act, asserting that the federal law was a violation of states’ rights.

  The claim seemed to mesh with the Rehnquist Court’s approach to federalism. Here was Congress dictating to the states how they should manage a classic function of state government, administering driver’s licenses. In 1997, the Court had struck down part of the Brady Bill gun control law, saying that the federal government had no right to force states to conduct background checks on gun buyers. As Scalia wrote for the Court in that case, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers…to administer or enforce a federal regulatory program.” Wasn’t the law on driver’s licenses the same thing—a directive to the states to solve a particular problem?

  Breyer thought that the regulation of a massive and complex national economy could only be led by the federal government and that Congress had every right to pass these kinds of laws. But how, he wondered, could he make that point in the context of this case?

  South Carolina was represented by its attorney general, Charles Condon, who was also the plaintiff in the case, known as Reno v. Condon. One of the immutable laws of oral advocacy in the Supreme Court is that elected officials, like state attorneys general, ought not to do it. Especially in the Rehnquist years, when aggressive questioning from the bench was the rule, nonspecialists generally failed miserably to advance their cause in front of the justices. Politicians generally possessed none of the key attributes of good oral advocacy: intimate knowledge of the Court’s precedents, intellectual dexterity with complex concepts, the ability to answer hard questions concisely. (John Ashcroft had a notoriously bad outing in front of the justices when he was attorney general of Missouri; wisely, then, Ashcroft did not follow the informal tradition for each attorney general of the United States to argue a case.) Still, few state attorneys general can set aside their egos long enough to forgo the opportunity to argue themselves. So it was with Charlie Condon.

  “This case is not about protecting privacy,” Condon began, promisingly enough. “The issue in this case is whether thousands of state officials across the country can be pressed into federal service by the Congress to administer a federal regulatory act. The Driver’s Privacy Protection Act is complex, it’s burdensome, and it applies only to the states of the United States.”

  When Condon said, “We’re being puppets of the federal government,” Breyer decided to spring his trap.

  “Isn’t that true of every federal prohibition on what a state government does?” Breyer asked. “I mean, suppose you sell hot dogs at the state park. Don’t you have to comply with the food and drug laws? I mean, those laws may be complicated, and you may have to say what kind of a hot dog and what kind of a stand, and what about—it’s certainly a lot better than the minimum wage, or the—isn’t it? I mean, you have to do a lot less than that. In other words, is your argument on this part just going to set aside all federal regulatory programs that tell states what they can’t do?”

  The question put Condon completely in a box. He could not say that the state could sell inferior hot dogs in its parks. He could not say that the state could pay less than minimum wage. So how did Condon answer?

  “Justice Breyer, that again is a good question, but that goes to the heart of this case. We aren’t selling hot dogs here.” Condon’s answer was so inept that some people in the audience started to laugh. But O’Connor followed up.

  “Well, let me ask you another example,” she said. “Congress passed the Internet Tax Freedom Act, and it told states they couldn’t tax these Internet transactions for a period of time, can’t do it. I suppose under your theory that’s invalid, too. It only dealt with the states and governmental entities. I suppose that’s invalid, is that right?”

  This question was even more ingenious, because O’Connor picked a federal law beloved by conservatives. The federal ban on state taxes on Internet transactions could hardly be characterized as the heavy hand of the liberal federal government. But it was, indeed, a federal restriction on state sovereignty. All Condon could mutter in reply was, “That could raise some concerns.”

  Through his question, Breyer had underlined the folly of trying to wall off the states from federal regulation. It couldn’t be done, and it shouldn’t be done. The case turned into a rout. At the conference, the vote was 8–1 in favor of the federal law. But then Rehnquist, the great patron of states’ rights, assigned the opinion to himself and that prompted Scalia, the would-be dissenter, to make the Court unanimous.

  The chief had not given up on federalism, of course. In the same term, Rehnquist succeeded in invalidating a part of the federal Violence Against Women Act. The disputed provision allowed women who claimed they had been assaulted because of their gender to sue their attackers in federal court. The provision was the kind of political stunt that generated such contempt for Congress among Rehnquist and his allies. Assault victims could always sue in state court; the federal law was largely symbolic, and rarely invoked, and the Court, 5–4, struck it down as a violation of the Commerce Clause. But the effect of the decision in the real world was almost meaningless; it curtailed lawsuits that weren’t being filed anyway. After more than a dozen years as chief justice, Rehnquist had failed to limit the power of the federal government.

  In this year of defeat after defeat, Rehnquist also failed to make progress on abortion—in a case where the facts largely favored his side.

  The Court had largely stayed away from the subject since Casey in 1992. The decision by the Casey troika of O’Connor, Kennedy, and Souter had not settled the issue for all time, but they had resolved most of the major controversies. First-trimester abortions could not be banned; parental consent laws were permissible; spousal notification—O’Connor’s bête noire—was out. Not coincidentally, public opinion had settled in very much along the lines the Court had devised. President Clinton was pleased with the status quo as well. The law on abortion wasn’t broken, so the justices, especially O’Connor, didn’t try to fix it.

  For a little while after Casey, the antiabortion movement floundered, looking for an issue that might restore its momentum in both the political and legal arenas. Then, one day, an anonymous informant slipped an obscure medical paper to Douglas Johnson, a top lobbyist for the National Right to Life Committee. The eight-page work h
ad been prepared for the National Abortion Federation, a group of abortion providers. It was an explicit how-to guide for terminating pregnancies after the twentieth week. The author, Dr. Martin Haskell of Cincinnati, said he had developed a technique where he dilated a woman’s cervix over a period of several days and then moved the fetus to a feetfirst breech-birth position. Using surgical scissors to cut into the skull, he vacuumed out the contents and, with the head reduced in size, removed the fetus from the pregnant woman. Haskell called this procedure “dilation and extraction,” or D&X. (Previously, late-term abortions had been conducted by removing the fetus in pieces.) Johnson saw to it that the paper received wide circulation in the antiabortion movement, which dubbed the practice described as “partial birth” abortion, because the fetus was alive when the procedure began.

  The grisly details had a galvanizing effect both inside and outside the movement. Abortion opponents saw the practice as barbaric and indefensible, nothing less than infanticide. In state legislatures and in Congress, where Republicans now presided, prolife politicians moved quickly to legislate a ban. Supporters of abortion rights were thrown on the defensive. They pointed out that such abortions were extremely rare, amounting to less than one percent of the more than one million abortions performed each year in the United States. And the vast majority of these abortions were done on women who suffered major medical complications or whose fetuses were horribly defective. Still, the images conveyed by the procedure proved to be politically compelling. The Republican Congress passed bans twice in the 1990s, and Clinton vetoed them each time because neither bill had an exception to protect the health of the mother. Abortion opponents had greater success at the state level. Throughout the decade, one state after another passed laws prohibiting the practice. Inevitably, notwithstanding the justices’ reluctance to return to the divisive subject, the Supreme Court would have to decide if these laws could stand.