The hunting expedition, which began on January 5, 2004, turned into something of a fiasco. Scalia, along with one of his sons and a son-in-law, bought round-trip air tickets, but Cheney invited them along on Air Force Two for the trip to the small airstrip in the town of Patterson. Residents had never seen anything like Cheney’s entourage. The government had already made two reconnaissance trips in November and December, and then the vice president’s plane was preceded on arrival day by two Black Hawk air combat helicopters that hovered over the landing area, and followed by a second Air Force jet that carried staff and security aides to the vice president. No photography was allowed as Cheney, Scalia, and about thirteen others got into a line of armored sport utility vehicles.
Carline’s compound was usually described as a hunting camp, but it was actually an enormous barge—about 150 feet by 50 feet—that was anchored in the marsh wherever the hunting was best. On top of the barge was a houselike structure with a few small bedrooms, which the group shared in groups of two or three, although Cheney was given his own. Meals were served family style, and hunting was in two-or three-man blinds. (Cheney and Scalia were never in the same one.)
It was raining when Cheney’s plane arrived, and it never stopped during the two days the vice president remained. (Scalia and his family stayed for four days.) Counterintuitively, the weather apparently was too wet even for ducks, because few of the targeted green-heads and teals were seen and even fewer killed. Carline said it was the worst duck hunting in thirty-five years.
Later that month, the Los Angeles Times, as well as the local Daily Review of Morgan City, Louisiana, disclosed the trip, and the Sierra Club asked Scalia to recuse himself from the energy task force case, which was to be argued in April. Curiously, there are no formal rules governing when Supreme Court justices must withdraw from cases. Unlike judges on the lower federal courts (which do have such rules), a Supreme Court justice cannot be replaced in a given case; ties at the Supreme Court amount to an affirmance of the lower court. Because of these unfortunate consequences, the justices are reluctant to drop out. The general rule said justices should withdraw if their “impartiality might reasonably be questioned”—whatever that meant.
The motion to recuse Scalia reflected a trend in Washington to turn disagreements over substantive issues into matters of personal ethics. In the nineties, Republicans pursued Clinton on many frivolous controversies. Later, without control of either house of Congress, Democrats had limited options for payback, but this attack on Scalia—a kind of petty harassment—was one. There was never any evidence that he and Cheney discussed the case or that Scalia, whose views on the rights of the executive branch were well established, was influenced by the joint outing. In all, the case for Scalia to recuse himself was weak. Cheney had been sued not as an individual but in his official capacity (meaning the case would continue if Cheney left office), and the Supreme Court hears cases against prominent government officials all the time. Most important, by historical standards, the relationship between Scalia and Cheney was hardly unusual; indeed, other executive branch officials and Supreme Court justices have enjoyed much closer friendships.
Breyer, among others, urged Scalia to avoid the controversy, recuse himself, and forget about the whole matter. (This was typical advice from the notoriously conflict-averse Breyer.) Scalia refused. Indeed, after stewing for weeks, he produced an unusual, and unintentionally amusing, public memorandum that was released shortly before the task force case was argued. Scalia’s twenty-one-page jeremiad included commonsense observations (“Many Justices have reached this Court precisely because they were friends of the incumbent President”), detailed historical references (several justices played poker with Roosevelt and Truman), and gratuitous attacks on “so-called investigative journalists” for their errors (the San Antonio Express-News said the duck-hunting trip lasted nine days).
The memo also included a detailed account of the trip and even Scalia’s personal expenses. (His round-trip fare, with an unused half, was still cheaper than buying a one-way ticket, so the ride with Cheney did not save the Scalia clan any money.) Scalia leavened his self-righteousness with a measure of self-pity, noting that he had “becom[e] (as the motion cruelly but accurately states) fodder for late-night comedians.” In its brief, the Sierra Club had helpfully supplied examples, like Jay Leno on The Tonight Show describing an “embarrassing moment” for Cheney when he visited the White House. “Security made him empty his pockets and out fell Justice Antonin Scalia!”
On balance, Scalia seems to have been correct to remain on the case, which ended with a tangled set of opinions that basically resolved the case in Cheney’s favor. (Scalia voted for Cheney’s side; Souter and Ginsburg dissented.) With characteristic bravado, Scalia started referring in public to the Cheney controversy as his “proudest” moment as a justice. “The rest took smarts—that took character,” he said. It speaks to Scalia’s messianic sense of himself that he would choose this insignificant matter—rather than, say, the selection of a president or any number of literally life-or-death controversies.
Scalia’s colleagues were used to his dramatics on and off the court, and they collectively greeted the latest controversy with little more than a roll of the eyes. As O’Connor would often say, “That’s just Nino.” Perhaps Ginsburg put it best in a speech in Hawaii a few months later, when she said a deer killed by Scalia made for delicious venison at their families’ traditional New Year’s feast. “Justice Scalia,” she observed dryly, “has been more successful at deer hunting than he has at duck hunting.”
The personal attacks on Kennedy and Scalia illustrated how the polarized ideological environment radiated into the Court itself. The justices remained cordial toward one another, but ideologues outside the Court treated them as if they were just another set of partisans. The fiction that they dwelled outside politics became increasingly difficult to sustain.
The undertow dragging the Court into politics disturbed all the justices, but especially O’Connor. Splitting the difference came naturally to her, but it wasn’t possible in every case. During the early years of the Bush presidency, a case was heading to the Court that, to a degree almost unprecedented in history, was directed to a single justice—O’Connor. Her struggle in that case to place the Court in the center of American life—and herself in the center of the Court—became her defining moment.
16
BEFORE SPEAKING, SAYING SOMETHING
The problems began with John Ashcroft.
Ashcroft, the former Missouri senator whom Bush named his first attorney general, embodied everything that O’Connor disdained about the modern Republican Party. He was extreme, polarizing, and moralistic—unattractive. One of O’Connor’s favorite former law clerks was Viet Dinh, who in the course of an extraordinary life fled Vietnam as a boat person and later became a professor of law at Georgetown. When O’Connor heard that Dinh had taken a senior job under Ashcroft, she was appalled. “Working with Ashcroft, he’s ruining his career,” she told another former clerk.
But O’Connor was wrong. Dinh was actually enhancing his career by associating with Ashcroft, because it was Ashcroft’s brand of conservatism, not O’Connor’s, that was ascendant in George W. Bush’s Washington. O’Connor herself would come to understand this new reality. The story of O’Connor’s disillusion with the GOP—and with Bush himself—was the story of her last years on the bench and the final transformation of the Rehnquist Court.
There were early hints that the Bush administration would head in a direction that O’Connor did not expect. The Ashcroft choice was one, and September 11 was another. She and Stephen Breyer were together in India on the day of the attacks, planning to meet with local judges, and they had to struggle for days to secure travel arrangements home. But it was O’Connor’s little-noticed reaction to the attacks that showed another way she was slipping away from the Bush orbit.
As with Kennedy, world travel played an important part of O’Connor’s ideological
journey. Even after O’Connor turned seventy, in 2000, she remained the Court’s most indefatigable tourist. (Ginsburg’s secretary, who fielded many invitations from the groups that O’Connor had already visited, joked that O’Connor had been so many places that she must have a secret twin sister.)
In her no-nonsense way, O’Connor took advantage of the fact that she was the only celebrity on the Court, showing the country and the world that a woman could serve at the highest level of government. In that respect, her mere presence was sometimes the only message she wanted to impart, but often, especially in later years, O’Connor tried to get across more pointed ideas. She led a delegation of judges to China for the first court-to-court exchange between the United States and the People’s Republic, for example. There, in a beautifully appointed room in Beijing, O’Connor sat side by side with President Jiang Zemin, sipping tea out of an elegant porcelain cup and talking about his upcoming trip to President Bush’s Crawford, Texas, ranch. As the audience drew to a close, O’Connor leaned over to the Chinese leader and said very slowly and carefully—each had an interpreter—“Mr. President, I cannot leave without reminding you that our country remains deeply concerned about China’s treatment of prisoners of conscience.” Jiang did not reply.
O’Connor wanted to see the ruins of Ground Zero before they stopped smoldering. On September 28, 2001, when travel to New York was still difficult, O’Connor and her husband kept a long-standing appointment to preside over the groundbreaking of a new building at New York University Law School. (This was her seventh visit to NYU—an institution to which she had no special ties—and she made similar repeat visits to many other law schools around the country.) With the grace of a skilled politician, she began her remarks with reflections on the moment in history. “As the Irish-man said, before I speak, I want to say something,” she began. “John and I have come to New York City from time to time, as westerners do, especially in the twenty years since I myself have been an East Coast resident…. We made a detour early this morning, to go down to the end of the island to get a glimpse, if we could, of the incredible damage done on September the eleventh. I am still tearful from that glimpse.” As if on cue, a siren began blaring, the nearly constant background noise of those traumatic days in New York. It wasn’t a day for an ordinary speech, and O’Connor did not give one.
“The trauma that our nation suffered will [alter] and has already altered our way of life,” O’Connor said, “and it will cause us to reexamine some of our laws pertaining to criminal surveillance, wiretapping, immigration, and so on. It is possible, if not likely, that we will rely more on international rules of law than on our cherished constitutional standards for criminal prosecutions in responding to threats to our national security. As a result, we are likely to experience more restrictions on our personal freedom than has ever been the case in our country. We shall be considering and debating among ourselves all the aspects of our nation’s response to terrorism. We wish it were not necessary. We wish we could set the clock back to a time of greater peace and prosperity. But we cannot. We are forced to face the reality of a deadly enemy and of people who are willing to sacrifice everything in order to cause harm to our country. As Margaret Thatcher said, when law ends, tyranny begins.”
O’Connor was careful, as she had to be, to avoid taking any specific positions on issues that might come before the Court, but she was showing considerable prescience—and concern. Even in these first few days after the attack, O’Connor was warning about a coming clash between national security and civil liberties. She had not been impressed by the Ashcroft Justice Department and did not fully trust it to provide the appropriate balance. O’Connor’s prominent reference to “international rules” was no accident. The Bush administration had already made clear its hostility to international law and institutions, and O’Connor was laying down a subtle marker that she, in notable contrast, had a great deal of faith in the worldwide community of judges and lawyers.
The trip to India where she was stranded with Breyer a few weeks earlier was typical of her travel. O’Connor went abroad not, as Kennedy did, principally to indulge in high-flown rhetoric about the rule of law but rather as a problem solver. She had particular interests in juvenile justice and the role of women in law, and she sought out programs on these subjects. It was no coincidence that she found an ally in Breyer, the Court’s leading technocrat. He, too, liked to find practical solutions to problems—how to increase the number of women lawyers, how to provide child care for jurors. Because of their trips, and because they were probably the two least neurotic personalities on the Court, O’Connor and Breyer ultimately became closer than any other pair of justices.
There was an ideological component to O’Connor’s travels, too. She often told the story of an earlier trip to India, when she went to hear an argument before that nation’s highest court, in New Delhi. The case involved a dispute between Hindus and Muslims over government benefits. But as the argument began, O’Connor was surprised to hear the lawyers on both sides citing precedents from the United States Supreme Court in support of their positions. At one point, the lawyers were debating the meaning of an opinion that O’Connor herself had written about the separation of church and state. As O’Connor said in a speech after she returned, “When life or liberty is at stake, the landmark judgments of the Supreme Court of the United States…are studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C., or the state of Washington, or Springfield, Illinois. This reliance, unfortunately, has not been reciprocal.”
O’Connor’s alienation from her party did not happen overnight, nor did it ever amount to a complete breach. Her rebellion took place mostly on issues relating to the culture wars—like abortion, church-state relations, and gay rights—but she hardly turned into an across-the-board liberal. On criminal cases, including the death penalty, she remained a hard-liner; on federalism and states’ rights, she stayed a firm ally of Rehnquist’s. On one issue, fatefully, for the country and within the Court, O’Connor remained poised on dead center—race.
When O’Connor joined the Court in 1981, civil rights still occupied a major part of the justices’ agenda. One of her early major opinions for the Court, in 1989, set out her views on the subject—in typically opaque fashion.
Richmond, Virginia, passed a local ordinance requiring businesses contracting with the city to set aside 30 percent of their sub-contracts for minority-owned enterprises. After losing a contract for installing stainless steel toilets at the city jail because it lacked the required minority subcontractors, the J. A. Croson Company sued the city, claiming a violation of the Equal Protection Clause. The Court agreed, striking down the set-aside program by a 6–3 vote in Richmond v. Croson. O’Connor was assigned to write the opinion.
To do so, O’Connor had to wade into one of the thorniest debates in constitutional law. Five decades earlier, the Roosevelt appointees made sure that the Court vindicated the constitutionality of the New Deal. Henceforth, if Congress or a state legislature approved a statute, the justices weren’t going to interfere with the democratic process. But that approach left a major question unanswered. What if a state passed a law that discriminated against a minority group—as, for example, the Southern states did all the time? What if a state said only whites could vote in primaries or serve on juries? Would the Court let those laws stand, too? The justices answered such questions with the most famous footnote in the Court’s history. In note 4 of United States v. Carolene Products, an otherwise minor case from 1938, Justice Harlan Fiske Stone suggested the Court would treat different kinds of laws in different ways. In cases about economic or property rights, the justices would defer to the political process. But when it came to laws that appeared to be targeted at racial minorities or other “discrete and insular minorities,” the Court would apply “more searching judicial scrutiny.”
As later justices interpreted the famous footnote, this meant that if a law appeared to discriminate against blacks
, the justices would apply what became known as “strict scrutiny” to see if the law was justified. During the civil rights revolution of the 1960s, the Supreme Court repeatedly applied strict scrutiny to all laws that contained racial classifications—all of Jim Crow—and struck them down. As the Court’s precedents evolved, it became clear that if the justices were going to examine a law with strict scrutiny, that law was invariably doomed.
The major complication to this doctrine of law emerged in the 1970s, when governments and companies started programs that were supposed to help blacks and other minorities. These affirmative action initiatives included explicitly racial classifications. Should the Court apply strict scrutiny and strike down laws that were supposed to help blacks in the same way it invalidated laws that were supposed to hurt them? Should the law treat “reverse discrimination” against whites the same way it treated old-fashioned discrimination against blacks? Those were the questions that O’Connor had to answer in the Croson case. Specifically, should the Court apply strict scrutiny to the set-aside program that explicitly required a degree of racial balance?
To answer, O’Connor did what came naturally to her. She split the difference. For O’Connor, there was no doubt that the Richmond ordinance contained a racial classification that disadvantaged whites. “The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race,” she wrote. As such, O’Connor decreed, the plan deserved strict scrutiny from the Court: “The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.” This in itself was a major development; it was the first time that the Court applied strict scrutiny to a law that was intended to help blacks.
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