The Nine: Inside the Secret World of the Supreme Court

Justice Stephen Breyer is the main subject of Chapter 6. In April 1994, Justice Blackmun announced his retirement, and Breyer, still championed by Senator Kennedy, was among several possible nominees. The person Clinton most focused on, however, was Richard Arnold of Arkansas. A federal appeals court judge, Arnold was universally respected and liked by members of both parties. However, he had been fighting cancer on and off for almost 20 years, and the concern was whether his health would hold up. When a top cancer researcher from the Dana-Farber Cancer Institute reviewed his medical history and concluded that Arnold faced prolonged and serious medical battles, Clinton decided to go with Breyer. Breyer had worked on the Senate Judiciary Committee, which is how he got to know Kennedy. He was a proponent of big government and a cheerleader for the institution of the people’s representatives: Congress. He was thus, as Toobin writes, “profoundly out of step—with the country, with the Congress, and even, to some extent, with his new colleagues” (81).

That fall, the Court accept the case United States v. Lopez, dealing with the reach of federal power. In the case, a high school senior in Texas was charged under the Gun-Free School Zones Act of 1990 for bringing a gun to school. The authority for the law rested on the Commerce Clause of Article I of the Constitution, which gives Congress the power to regulate trade between the states. Since 1937, this had been interpreted widely by the Court to include virtually all economic matters. However, the conservative legal movement begun in the 1980s was seeking to return to a pre-1937 interpretation, which came to be known as the “Constitution in Exile” (83) movement. Most of the justices decided that possession of a gun did not fall under the purview of commerce, and the Court ruled 5-4 against the government. Justice Breyer was the only one of the nine who had strong ties to Congress and that, together with his natural optimism toward government, led to his writing a strong dissenting opinion.

This chapter deals with the role of evangelical Christians in the conservative legal movement of the 1980s and 1990s. The First Amendment addresses religion in public life by stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (86). During this time, a series of Supreme Court cases began shifting the legal environment regarding religion, altering some stances that the Court had long upheld.

The first case arose in 1987, centering on a ban that the Los Angeles International Airport had instituted against distributing religious and other material. The plaintiff was an organization called Jews for Jesus, whose aggressive leafletting had led to the ban. Their lawyer was Jay Sekulow, who joined Jews for Jesus after attending a Baptist college in Atlanta. Rather than arguing for the organization’s freedom to exercise religion, as similar cases usually did, he argued it as a free speech case. The Court unanimously agreed, saying the ban violated the First Amendment.

Sekulow took the same approach in the next case he took on, in which a student group at a Nebraskan high school was denied the right to start a Christian club on school grounds. Again, the free speech argument won the case, with only Justice Stevens dissenting. The religious right took notice of Sekulow’s success, and he was asked by televangelist Pat Robertson to help create an organization to serve as a counterpart to the American Civil Liberties Union (ACLU), called the American Center for Law and Justice (ACLJ). The first case Sekulow argued for the ACLJ, in 1993, involved a non-student religious group that had been denied permission to use a public school after school hours. Again, it resulted in a unanimous decision in his favor, based on the free speech clause of the First Amendment.

These cases led to a new legal landscape for religion: while the government could not promote any religious group or religious speech, neither could it exclude the same. (Previously, any religious activity allowed was seen as de facto promotion of religion.) The next step in the conservative movement was to allow the government to encourage such activities and even pay for them. The test came in 1995, in a case from Ohio. Various groups had been allowed to put up symbols and signs, some of which were religious, on a plaza in the capital, but the KKK was denied permission to erect a Latin cross. The justices ruled 7-2 in favor of permitting the cross, but produced six different opinions, so their reasons varied widely.

Clarence Thomas is the focus of this chapter, and is presented as the most unique and isolated of the nine justices. His views were the most conservative, more so than Scalia’s, and rarely was he able to muster a majority behind his opinions. Thus, Chief Justice Rehnquist assigned few cases to him to write the majority opinions. He was an originalist in the extreme and cared the least about stare decisis, or the law of precedent. He was the most ideological when choosing law clerks, screening out any who did not wholeheartedly agree with him on the major issues.

Yet Thomas was also full of contradictions. As Toobin puts it: “He was the friendliest, warmest justice, and he was full of rage” (99). He was kind and genial to everyone at the Court, from fellow justices on down to janitors. He and Justice Breyer, who sat next to each other on the bench, joked and laughed together so much that they were mildly disruptive at times. He got to know other justices’ clerks and learned all their names. When he was about 50, he and his wife took in his 6-year-old grandnephew, who came from difficult circumstances—much like Thomas’s own grandfather had taken him in around the same age—and the boy was the source of much joy for Thomas.

Still, it was hard for him to overcome old grudges. He never really recovered from his bruising confirmation process, and for years he kept a list of all senators at the time and how they voted on his confirmation. He railed against the cultural elites and those who, in his view, dictated how people (especially minorities) should think about certain issues. He felt that African American were not given enough free will by liberals to think and do for themselves. This might be traced back to his time at Yale Law School, where he was accepted under and benefited from affirmative action. He argued that this hindered him after graduation, as he struggled to find a job because many people believed his race factored into his education more than hard work and merit. In his view, economics was more important than race, that most attempts to help African Americans ended up hurting them, and that people of all backgrounds should be left to succeed or fail on their own with no outside intervention.

This chapter addresses the direction of the Rehnquist Court as the 1990s wore on, in particular how the chief justice himself changed over time. The name of the chapter is a clever use of what took place at the end of poker games that Rehnquist and other political figures attended monthly (the cards were passed to the left to be dealt for the next game) to represent the fact that the Court moved left politically toward the end of the decade. Partly, this was due to the Court mirroring public opinion, as it usually did, but it also had to do with Rehnquist slowing down with age and not pursuing conservative causes with the same energy he once did.

Much of the chapter describes how President Bill Clinton’s impeachment played out. A woman named Paula Jones had accused the president of indecent acts during a meeting they had in 1991, and sued Clinton. The case ended up at the Supreme Court in 1997, where the president’s lawyers argued that it should be postponed until after his presidency so as not to distract him from the necessary duties of the office. The justices, however, allowed the case to go forward, with Justice Stevens writing in the opinion that the case should not impede much on the president’s time—a prediction that proved to be wildly off. Clinton was impeached by the House of Representatives in December 1998, on charges of perjury and obstruction of justice, for lying in his deposition for the Jones case.

The trial in the Senate was led by Rehnquist and lasted five weeks in early 1999, although the outcome was all but assured as no one thought the required two-thirds of the members would vote to convict Clinton (there wasn’t). The justices, Toobin writes, had seen the Paula Jones case as a way to put Clinton in his place, as most had a “long-standing personal distaste for the president” (116), but soon lost their fervor as the investigation and then trial dragged on. What’s more, public opinion had shifted over time, and the American people were tired of the Gingrich-led “Republican revolution” while Clinton’s popularity rose. The Court’s slowing of its conservative agenda reflected that somewhat, but more importantly, reflected a change in Rehnquist.

The chief justice had become more interested in some of the more mundane matters of the Court, like needed renovations and just getting through its business on time, and devoted less time trying to marshal votes and writing long opinions. Evidence for this came in Dickerson v. United States, a case involving the 1966 decision Miranda v. Arizona, which had established the requirement that police officers read someone their constitutional rights upon arresting them. Rehnquist had long detested Miranda as an example of judicial overreach. In October 1999, a case came before the Court that would have allowed him to finally do away with it. By that point, Miranda had not only become legal precedent but had become ingrained in society thanks to numerous television shows in which police read criminals their rights. Justice Breyer alluded to this in the oral arguments when he estimated that about two billion people had heard it over the years. Rehnquist grudgingly agreed and wrote the opinion himself upholding Miranda on the basis of legal precedent, while Justice Scalia wrote a scathing dissent. Toobin argues that the actions of these two conservative voices illustrates well the two strains of conservatism on the Court. 

By the end of the Clinton presidency, the conservative movement was losing steam, and the term of 1999-2000 was pivotal. This year, the lawyer Jay Sekulow’s “free speech” approach to religion cases failed in one involving school prayer at football games in Texas. The school committee in a small town named Santa Fe had allowed students chosen by their peers to give an opening prayer. Although the prayer was ecumenical in nature, some students still objected and sued the school. The justices ruled 6-3 against the school, stating that in this case free speech did not apply because it was not private speech but rather government-condoned speech, which amounted to pressure to conformity to religion.

Justice Breyer gets much of the focus in this chapter. Toobin argues that he came into his own in these years after a period of adjustment and acclimatization. He worked the hardest to forge connections to other justices, subtly trying to lobby them to agree with his views, which Toobin suggests came from his days watching senators on the Judiciary Committee. One way Breyer did this came during oral arguments because all the justices were together and formed a captive audience: he asked questions that were often designed more to instruct his fellow justices than to solicit information he desired.

This served him well in several cases that arose in the final year of the Clinton administration. Reno v. Condon involved the issue of federalism and states’ rights. Congress had passed a law forbidding states to sell personal information found in their motor vehicle departments, and South Carolina filed suit arguing that the federal government should not interfere with states in this manner. This implied a broad “hands off” system that prompted several well-honed questions from Breyer. Surely the federal government had a right to “interfere” in states to regulate certain activities, he replied, using the example of food and drug safety laws. Justice O’Connor followed up by noting the existence of a federal law prohibiting the collection of taxes from online sales, which conservatives were in favor of. The result was a unanimous decision to uphold the law.

Another case that year in which Breyer shone involved abortion. This issue had been mostly settled after the Casey case in 1992, but during the 1990s a new controversy had arisen. It came to light that doctors were performing late-term abortions through something called “dilation and extraction,” often referred to by anti-abortion advocates as “partial-birth abortion” (132). Many states passed laws banning this practice, and a law in Nebraska was challenged, working its way up the courts. The case, like so many, came down to O’Connor’s vote. She was generally fine with restrictions to abortion as long as a woman had the power to make the final decision. Because the Nebraska prohibition had no exception for the health of the mother, O’Connor voted against it. Breyer was assigned to write the opinion, proceeding deftly to maintain O’Connor’s support, which was tenuous. Thus, the term and the decade ended with several defeats for the conservative movement.