The Nine (55 page)

In response to questions about his 1985 job application, Alito essentially dismissed the document. “When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues,” he said. As for his current feelings about
Roe
, “I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision making.” Alito repeatedly declined to express a view about whether
Roe
should be overturned. Thus, under the peculiar standards of contemporary political discourse, all eighteen members of the Senate Judiciary Committee were expected to—and did—take a stand on
Roe
during their campaigns; but the only people who actually have a say on
Roe
, future justices, were allowed to refuse to answer.

Alito’s hearing came shortly after the
New York Times
disclosed that the Bush administration engaged in extensive warrantless wiretapping of phone calls to or from outside the United States. Going back to the Reagan years, Alito’s record suggested that he took an expansive view of executive power, though, characteristically, he declined to say much on the subject during the hearings. He did disown one sentence in the 1985 job application, when he said, “I believe very strongly in the supremacy of the elected branches of government.” That was a “very inapt phrase,” Alito asserted, because he actually believed in three
equal
branches. In almost his only substantive answer, Alito added, “I don’t think that we should look to foreign law to interpret our own Constitution”—evidence of how much Kennedy’s crusade on the subject had alienated conservatives. (Roberts had expressed a similar sentiment in his hearings.)

Bad as Alito’s performance was, that of his Democratic inquisitors was worse. Joseph Biden of Delaware resembled a parody of a bloviating politician, talking for twenty-four of the thirty minutes alloted for his initial questions. Ted Kennedy, the Massachusetts veteran of nineteen Supreme Court confirmation hearings, peppered Alito with a long series of manifestly unfair questions about his participation in a case involving the Vanguard mutual funds, in which the judge had invested. (Alito recognized his error and promptly recused himself in a case of such minor significance that it could not have affected his own portfolio.) Kennedy did annoy Alito by asking him about his membership in a group called Concerned Alumni of Princeton, which had conducted distasteful protests about coeducation and affirmative action at the college. But Alito’s role in the group was minor, and he diffused the issue by saying he was merely supporting the return of ROTC to the Princeton campus. Other Democratic senators made halfhearted attempts to engage the nominee on such varied issues as separations of powers, the environment, and law enforcement. Alito dodged with impunity.

In a crowning absurdity, on the third and next-to-last day of Alito’s testimony, Lindsey Graham decided to make a theatrical rush to the nominee’s defense. Graham mocked Kennedy’s line of attack and asked if Alito was a “closet bigot,” then expressed sorrow that Alito’s family “had to sit here and listen to this.” A moment later, Alito’s wife, Martha-Ann, burst into tears and rushed from the committee room. Her reaction was certainly peculiar, since it came during Graham’s ostentatiously sympathetic questioning. Even though there was no reason to think she staged an onset of the vapors, the day’s news focused on her tears, much to the nominee’s benefit. Any momentum in the Democrats’ direction disappeared.

The final vote in the committee, held on January 24, went along party lines, 10–8 for Alito’s confirmation. Senator John Kerry called for a filibuster against Alito, but he did so while on his trip to Davos, Switzerland, signaling a somewhat less than intense focus on the Supreme Court vote. (In a deft bit of mockery, Republicans assailed Kerry for politicking from a ski resort.) Few of Kerry’s colleagues joined his call to arms. When the time came for a vote on the Senate floor, on January 31, Alito’s opponents mustered forty-two votes against him—more than the forty needed for a filibuster. But many of the senators voting no made clear that they would not support a filibuster, so the fifty-eight votes in Alito’s favor amounted to a comfortable margin of victory.

Alito joined the Court almost four months to the day after Roberts, and the two of them struggled to keep up with the sudden onslaught of cert petitions and oral arguments. Their distinct coping mechanisms reflected the modest but real differences between them. Roberts immediately endeared himself to the loyal and long-serving Supreme Court staff by keeping on Rehnquist’s secretaries and some of his law clerks; he brought others with him from the D.C. Circuit. In recent years, some of the conservative justices on the Court had begun hiring slightly older law clerks who had both completed the customary appellate clerkships and spent some time in the Bush Justice Department. Alito took this practice to an extreme, hiring as his first clerk Adam Ciongoli, a thirty-seven-year-old senior vice president of Time Warner who had recently completed a two-year stint as one of John Ashcroft’s closest aides. It is easy to overstate the importance of law clerks, but the appointment of Ciongoli, who had clerked for Alito a decade earlier on the Third Circuit, suggested a closer than usual tie between the new justice and the administration. In any event, the fortuitous absence of blockbuster cases in the first few months of the Roberts Court allowed the justices to become acclimated to their new surroundings.

Curiously, the person most affected by the two appointments appeared to be Scalia, who had just turned seventy. In public, Scalia had joked about the possibility of becoming chief justice, but the recognition that his career had reached a final plateau seems to have encouraged him to shed his inhibitions. For all his theatrics in oral arguments and the panache of his dissenting opinions, Scalia simply did not love the job as much as his colleagues did. As far back as 1996, he had written to Harry Blackmun, “I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and don’t see much use in it anymore.” Ten years later, Scalia was still repeating himself, and he was bored.

It should have been a glorious time for Scalia, with two new like-minded justices joining the Court. But as Scalia contemplated his twentieth anniversary on the bench, his legacy looked modest. Although his famous dissents often produced admiring chuckles among his readers, the dissents only rarely become law. In two decades on a generally conservative Court, his number of important majority opinions was almost shockingly small; asked at a public forum his favorite of his opinions—a common question for the justices in such settings—he came up with an esoteric case interpreting the Confrontation Clause of the Sixth Amendment.

Nor did Scalia have much influence on his colleagues. Most famously, from the beginning of his tenure, Scalia had actively repelled O’Connor, pushing her toward her moderate, swing role. He had a similar effect on Kennedy. Even Thomas had long since passed Scalia, en route to a kind of nineteenth-century conservatism.

And the two new justices, though they almost always voted with Scalia in their early days on the bench, seemed to be cutting independent paths. In his confirmation hearing, Roberts issued a nearly Breyer-style denunciation of Scalia’s originalism, saying, “I think the framers, when they used broad language like ‘liberty,’ like ‘due process,’ like ‘unreasonable’ with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.” Moreover, Roberts’s much-advertised minimalism clashed with Scalia’s more sweeping approach to writing opinions. As part of his “textualism,” Scalia shunned any reference to the legislative history of laws, preferring to interpret only the actual words of a statute rather than the congressional debates leading to a law’s passage. But in one of his very first opinions, Alito did cite legislative history, and Scalia, as he always did, dissociated himself from the reference.

Outside of the Court, Scalia’s frustration manifested itself in juvenile petulance. Few on the Court traveled as much as he did, and no one more enjoyed mixing it up with critical audiences. These confrontations did not always bring out the best in the justice. He called those who did not share his originalist approach “idiots” he invited those disappointed with the result of
Bush v. Gore
to “get over it” he called the international constitutional courts in Europe “the mullahs of the West.” In one episode, on March 26, 2006, at a church in Boston, a reporter shouted a question to him about his religious beliefs. “You know what I say to those people?” he replied, and then flicked his fingers under his chin at the questioner. “That’s Sicilian,” he explained. The next day, the
Boston Herald
wrote that Scalia had made an “obscene” gesture. Two days later, Scalia wrote a letter to the editor of the paper that read in part:

It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture—inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.

Your reporter, an up-and-coming “gotcha” star named Laurel J. Sweet, asked me (oh-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said “That’s Sicilian,” and explained its meaning—which was that I could not care less.

That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini’s The Italians: “The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.’…How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “ ‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene—especially when made by an “Italian jurist.” (I am, by the way, an American jurist.)

To be sure, there was something endearing about Scalia’s unique mix of élan and erudition. He was a justly popular public speaker. But over two decades, Scalia failed to charm his most important audience, his colleagues, and his moxie never translated into influence.

In Roberts and Alito’s first year, there turned out to be only one blockbuster case—the appeal of the fortuitously timed decision that convinced Dick Cheney to support Roberts for chief justice. Once again, the justices would turn to the prisoners of Guantánamo Bay.

Few cases had a more unlikely journey to the Supreme Court than
Hamdan v. Rumsfeld
. The primary instigators of the lawsuit were a small group of military lawyers who, at great risk to their careers, agreed to represent the detainees at Guantánamo. These lawyers, led by Will Gunn of the Air Force and Charles Swift of the Navy, proved to be dogged, if overmatched, in repeatedly challenging the actions of their superiors in the Department of Defense. For help, they turned to a thirty-three-year-old law professor at Georgetown, Neal Katyal, who had served briefly in the Clinton Justice Department after finishing a clerkship with Breyer. With minimal assistance and vastly more experienced adversaries, Katyal constructed a legal assault on the Bush administration’s legal position that changed constitutional history.

In 2004, when the justices had first contemplated the case of the prisoners in Cuba, the Bush administration had argued that the case should have been thrown out forthwith, that the detainees were simply outside the reach of the American legal system, with no rights even to bring a case. The justices had rejected this claim in a pair of opinions that included O’Connor’s tart reminder that “a state of war is not a blank check for the President.” In response, the administration had unilaterally set up a system for allowing the detainees to challenge their incarcerations in abbreviated trials known as commissions. It was this system that the military lawyers, later joined by Katyal, were challenging. For their client, Katyal and his colleagues chose perhaps the least threatening prisoner taken from the battlefields of Afghanistan, Salim Ahmed Hamdan, who was accused of being Osama bin Laden’s driver but not a terrorist or even a fighter.

The young professor had one important advantage in the argument on Tuesday morning, March 28—the extremism of the claims made by the Bush administration. (Katyal was making his first argument before the justices; his adversary, Paul Clement, the solicitor general, was making his thirty-fourth.) Clement argued that in authorizing a response to the attacks of September 11, Congress had implicitly suspended the writ of habeas corpus, something that had been done only four previous times in American history. It was a claim that nearly sent Souter flying over the bench.

“Isn’t there a pretty good argument that a suspension of the writ by Congress is just about the most stupendously significant act that the Congress of the United States can take?” he asked. “And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?”