War of the Whales (54 page)

At 6:00 a.m. on June 24, Reynolds turned on his laptop and logged on to the SCOTUS (Supreme Court of the United States) blog for the real-time announcement of the cases the court had agreed to hear in its upcoming term. He scrolled through the list of petitions pending to where he found the court’s one-word decision on the petition to hear
NRDC v. Winter:
“Grant.”

His heart sank. For the Supreme Court to agree to hear a case, four of the nine justices needed to vote yes. Usually, though not always, a vote to hear a case meant that the judges wanted to review the lower court’s decision and might well be inclined to overturn it. So Reynolds understood that even before the arduous months of preparation to come, the solicitor general likely had at least four justices leaning his way, with only a fifth needed to overturn.

After riding a five-year wave of courtroom victories against Navy sonar, Reynolds feared that the tide was beginning to turn.

28

The Highest Court in the Land

Ever since he was a young lawyer, Joel Reynolds had a compulsion for over-preparation that revealed itself in a recurrent anxiety dream. The setting, progression, and outcome of the dream were always the same. It was his Supreme Bad Dream.

The nightmare begins en route to court. Whether or not the traffic-clogged streets resemble Washington, DC, he knows right away that it’s the Supreme Court he’s trying to get to—and he’s running late.

When he finally arrives, he recognizes the courthouse by its neoclassical design, the 16 Corinthian columns guarding the doorway beneath the inscription: “Equal Justice Under Law.” But everything’s warped. The wide flight of marble steps leading to the doorway feel soft and spongy underfoot, and no matter how quickly he tries to climb them, they seem to propel him backward as if on a down escalator.

Suddenly, against all laws of gravity and physics, he’s standing inside the chambers, face-to-face with the nine black-robed judges arrayed like phantoms behind the raised mahogany bench. His oral argument is about to begin.

The green light flicks on, signaling the start of his allotted time. But when Reynolds looks down to consult his notes, he realizes to his horror that they’re blank. He rifles through his briefcase but finds only blank pages inside. That’s when he realizes he’s not dressed for court. No tie, no white shirt, and no suit!

Reynolds had, in fact, once argued a real-life nightmare in front of the Supreme Court, preparing relentlessly for weeks and in vain to find the elusive arguments—any argument—that might salvage his client’s prospects in the high court. Back in the 1980s, he’ d represented the community living near the Stringfellow Acid Pits, a huge toxic waste dump outside his hometown of Riverside, California. Two dozen corporations and the US Air Force had been dumping toxic waste at the site for years, ultimately contaminating the groundwater aquifer beneath the site. Reynolds first lost the case but then won a reversal from the court of appeals. When the polluters convinced the Supreme Court to review that decision, Reynolds lost 9–0.

The funny thing was, his Supreme Bad Dreams had begun years
before
the Stringfellow case and persisted for decades afterward.

Reynolds at a UC Riverside Distinguished Alumni Award ceremony, spring 2007.

•  •  •

When the Supreme Court agreed to hear
NRDC v. Winter
, Reynolds and Kendall both knew that having Kendall out front during oral argument would increase their chances of winning. They needed all the help they could get. They’ d be appearing before the most conservative Supreme Court since the 1930s, and the most activist judicial panel anywhere in the country that had consistently favored government and corporate interests for the past five years.
¹
In the prior term, the Supreme Court had reversed eight out of ten cases it had reviewed from the San Francisco–based Ninth Circuit Court of Appeals. Reynolds figured he was better off having a major-firm litigator of Kendall’s caliber and reputation, and a long list of Fortune 500 clients, making the case against Navy sonar. Kendall had already argued several times in the Supreme Court, so there was no question that he was up to the task. And he was entitled to his moment at center stage. From the start, he and his firm had delivered the kind of added firepower that Reynolds needed in a case of this intensity and complexity—especially with the Navy determined to appeal all the way up to the Supreme Court.

As the court date approached, Reynolds’ biggest fear wasn’t simply losing but the risk of losing badly: a so-called hard landing. In a worst-case scenario, a hard landing could make bad law under a range of environmental statutes, establishing bad precedent and even reversing decades of legal gains—not just by NRDC but by other advocacy organizations as well. In overturning
NRDC v. Winter
, the court could make sweeping rulings on national security versus the environment or undermine the power of the courts to restrict agencies of the executive branch. It might also impose strict limitations on who had standing in environmental lawsuits or raise the bar for injunctive relief in future cases. To bolster their arguments, Reynolds and Kendall reached out to other groups and individuals to submit amicus, or “friend of the court,” briefs arguing specific points of law.

In the meantime, the Navy Office of Information launched a public relations charm offensive, inviting reporters and politicians on overnight destroyer tours, placing articles in magazines about the Navy’s green stewardship of the ocean environment, and lobbying newspaper editorial boards. NRDC mounted a counteroffensive, and Reynolds had to juggle his work on the case with meeting editorial boards, writing op-ed essays, and being interviewed on radio and television. At every opportunity, he emphasized that NRDC and its co-plaintiffs had no intention of interfering with the military’s combat mission or national security. All they were asking was that the Navy observe the laws of the land and avoid harming marine mammals during training exercises.

To date, NRDC had held its own with the Navy in terms of favorable newspaper editorials—including from the
New York Times
, the
Washington Post
, and the
Los Angeles Times
—which was one meaningful measure of how his case was doing in the court of public opinion. Just as importantly, coverage by the major papers, newsweeklies, and networks had spiked now that the Supreme Court was hearing the case. Regardless of what the nine justices decided, the broader public had finally been introduced to the topic of acoustic threats to whales and what NRDC was asking the Navy to do to reduce them.

On the day before the court was scheduled to hear
NRDC v. Winter
, Reynolds and Kendall were staging their third moot court in two weeks to polish Kendall’s oral arguments. At the two previous mock sessions, or moots, as they are called, law school professors at UCLA and Harvard had played the roles of specific judges, posing questions in the style of Chief Justice John Roberts or Antonin Scalia or Anthony Kennedy. Kendall had reserved the final moot for Georgetown University Law Center, which boasted the optimal stage for a dress rehearsal moot court: a precise replica of the Supreme Court chambers. Not only were the law professors seated in the position of the justices, but the dais was raised to the exact height of the original, precisely 18 feet in front of the facing counsel’s table. Behind the justices stood the same four neoclassical pillars, burgundy curtain, and hanging clock as in the actual courtroom a half mile away.

During oral arguments before the Supreme Court, each side is allotted a strict time limit of 30 minutes. But your carefully prepared 30-minute argument is likely to be interrupted by one or more justices within the first 20 seconds. Sometimes two judges will ask you questions almost simultaneously or address their remarks to each other. The challenge for the lawyer making an oral argument is to answer the justices’ questions directly and courteously, while never losing sight of the main points that you want to convey.

The focus of this final moot, and of much of the previous week’s preparation, was the presumed swing vote among the nine justices: Anthony Kennedy. If NRDC had a chance of preventing the high court from reversing its lower court victories, it lay in convincing Kennedy. Reynolds assumed that Chief Justice Roberts and Justices Scalia, Clarence Thomas, and Samuel Alito made up the four-justice bloc that had already voted to hear the case. The government needed to persuade only one other justice to reach the majority required to overturn. Justices Ruth Bader Ginsburg, David Souter, and Stephen Breyer were expected to be more sympathetic to NRDC’s position and therefore more likely to vote to affirm, despite the wild card of the military in this particular case.

The ninth justice, and the only one who had served in the military during wartime, was the elderly John Paul Stevens, who had been a naval intelligence officer during World War II. Would that incline him, Reynolds wondered, to defer to the Navy’s assessment of national security? But if Stevens was lost, the case was lost, so they focused on Kennedy, the likeliest swing vote decider in this case.

Reynolds and his team had combed through years of Kennedy opinions; even those he wrote when he was a judge on the Ninth Circuit Court of Appeals. But they found little to go on. The most encouraging decision was Kennedy’s break, during the previous term, with his conservative colleagues to cast the fifth and deciding vote to overturn indefinite internment of foreign fighters at Guantanamo Bay, Cuba, based on a habeas corpus petition. His rationale, one potentially applicable in the sonar case, was the notion that even the government must comply with the law of the land.

After lunch, NRDC’s entire legal team reconvened at the offices of Paul, Hastings, Janofsky & Walker, a corporate firm that had prepared one of the four amicus briefs submitted in support of NRDC and had agreed to lend one of its conference rooms for use as a war room. One last time, they peppered Kendall with questions, critiquing his responses, proposing nuances, and trying to anticipate the reactions of the nine justices and the potential traps that some of them might lay. About midafternoon, the meeting broke up, and Kendall returned to his hotel room to finish preparing his argument and get some sleep.

As Reynolds walked back to his own hotel, passing the White House and the monuments that lined the Great Mall, he tried to stop preparing and just enjoy the moment. The next morning, NRDC’s most high-profile sonar case would be argued in front of the highest court in the land. Perhaps it was a fitting climax to his 12-year battle with the US Navy, but it was not where Reynolds had wanted things to end up. He understood that they faced long odds. His young associates—Jasny, Wetzler, and Horowitz—liked to place joke bets before a big court date, if only to release some of the tension: If we win this case, they’ d wager, we’ll all take our families to Paris for the weekend. If we lose, we’ll have to watch Paris Hilton videos for a month. What Reynolds didn’t know was that his associates had handicapped NRDC’s odds against winning at 8–1.

Reynolds was convinced that NRDC had the better legal arguments in the case. But he knew that justice is less a meritocracy than a complex matrix of politics, personalities, and legal precedent. And Supreme Court justices, unlike lower-court judges, don’t have to worry about their decisions being reversed on appeal, which gives them a lot more latitude in their rulings.

What worried Reynolds most was the high court’s tradition of deferring to the military during wartime. Perhaps the most egregious historical example was the Supreme Court’s 1944 decision to uphold the government’s right to confine more than 100,000 American citizens of Japanese descent in internment camps following the attack on Pearl Harbor—based solely on the military’s anxiety that some of them might be disloyal and give aid to the enemy. In his 6–3 majority opinion in
Korematsu v. United States
, Chief Justice Harlan F. Stone wrote: “We cannot reject as unfounded the judgment of the military authorities . . . that there were disloyal members of that [Japanese American] population, whose numbers and strength could not be quickly and precisely ascertained.” While
Korematsu
would stand as an embarrassing black eye in Supreme Court case history, it illustrated to Reynolds how otherwise thoughtful judges could subordinate their judicial review to perceived national security threats during wartime.