Courtesy of The Penguin Press
The nine justices emerged from behind the red velvet curtains right on time, as always, at 10 a.m. They are never late or early, no matter how small or big the cases before them. They follow a routine dictated by custom and tradition.
About ten minutes beforehand, the associate justices donned their black robes in a paneled changing room just behind the courtroom and gathered next door in the oak-paneled conference room where they meet to discuss cases. The room is just outside the chief justice's chambers, and as always, he joined them already wearing his robe. Right before the appointed hour, they all shook hands. Then they walked single file behind their chief, in order of seniority, to wait behind those velvet curtains. As the Court's marshal announced "the honorable, the chief justice and the associate justices of the United States of America," an aide swept back the curtains, and the justices stepped into the room.
On this day, like all other days on the Court calendar, a hush preceded the marshal's announcement, as if the spectators in the surprisingly intimate marble courtroom suddenly and all at once noticed that it was time. But on this day, the hush seemed more profound, as if the crowd thought it could somehow will the justices into the courtroom a moment or two early. It was a big day, a historic day in the minds of many. All the seats were full, some with top government officials ushered in by Supreme Court police officers, others with people who had camped out overnight in the sticky heat of Washington in late June.
The justices stepped up to their long wooden bench in unison and pulled back their high-backed black leather chairs. The scene was carefully choreographed, but also well practiced. This group had worked together for eleven years. As the justices sat down in their seats, the people in the audience sat up straighter in theirs. Some leaned forward. Everyone, even the justices, looked at the gaunt man in the middle of the bench. It was the last time they expected to see Chief Justice William Rehnquist in that seat, controlling a court he'd led for nineteen years.
Rehnquist was eighty years old, and he was dying of cancer. Many in the courtroom on the last day of the 2004–5 term had come to see him announce the inevitable: He was retiring after thirty-three years on the Supreme Court. The White House had already begun interviewing possible replacements. Journalists had worked up lengthy stories about his legacy, to run when he made his announcement. Former law clerks had considered the remarks they would offer, if asked, about the chief 's curious mix of stern leadership and personal warmth. More than one planned to talk about how it was a testament to Rehnquist's willpower and love of the institution that he had managed to finish out the term despite the illness that had weakened him. He was not the kind to leave his ship midcourse; he had steered it home.
None of them truly knew just how sick Rehnquist was. The previous October, doctors had diagnosed him with anaplastic thyroid cancer, the most serious and aggressive form of thyroid cancer. They'd performed a tracheostomy, an operation to make a permanent opening in his throat so he could breathe and eat when the chemotherapy and radiation swelled it shut. Rehnquist did not disclose any details publicly, nor did he make public the grave prognosis his doctors had given him. A younger man, doctors told Rehnquist in the hospital after his diagnosis in October, would have less than a year to live. He'd have perhaps half that.
On that June morning, Rehnquist, who loved to put down a one dollar bet on almost anything—the amount of snowfall, a football game, a congressional election—had already beaten his odds.
The atmosphere in the courtroom grew tense as the Court turned to the last two cases of the term. Both dealt with whether the Ten Commandments could be displayed on public property. The question had generated enormous controversy across the nation. In Alabama, the state's chief justice had been kicked out of office when he refused to remove a large display from his courthouse. The justices had struggled mightily with these decisions before splitting the difference. They approved a Ten Commandments monument on the grounds of the Texas state capitol in part because it was displayed with dozens of other markers. But they ruled the display unconstitutional in a Kentucky courtroom, where it appeared to take center stage.
Rehnquist announced his opinion in the Texas case, and he struggled to provide even the briefest of summaries. Unable to eat because of his cancer, he'd become thin and stooped, and his skin appeared gray. His trademark booming baritone, which had silenced many a lawyer, sometimes in midsyllable, was gone. His voice now was weak and reedy from the tracheostomy. Rehnquist ticked off the names of the six other justices who'd also written opinions in that Ten Commandments case.
"I didn't know we had that many people on our Court," Rehnquist said slowly, his breathing labored. Then he smiled as he looked to the justices on his left and right, and the courtroom exploded in laughter. Rehnquist thanked the Court's staff for its work over the term. The audience grew completely still. The other justices peered intently at Rehnquist. This would be the time for the announcement. Rehnquist seemed to pause briefly. Then he banged down the gavel and carefully rose from his seat.
The other justices, looking confused, slowly began to follow. Only O'Connor seemed to have a sense of purpose. She turned and stepped beside her old chief, ready to help him if he needed her arm. Then the old chief shuffled back to his chambers, leaving all of Washington to wonder and wait.
The anticlimax of a non-announcement that morning carried no small amount of apprehension and unease for conservatives and liberals alike. Amid the swirling rumors of retirement and change, conservatives were facing an uncomfortable reality: the Rehnquist Court, with seven justices appointed by Republican presidents, had become a legal and ideological disappointment. Time after time, these justices had refused to sweep aside the landmark liberal rulings of earlier Supreme Courts. In case after case, the justices frustrated conservatives by avoiding clear resolutions of the most controversial issues of constitutional law. Liberals may have seen a Court that put a Republican in the White House, but on the volatile and often emotional issues of abortion, affirmative action, capital punishment, and religion, conservatives were left gasping, often falling just short of their goals. Justices who were advertised and marketed as conservatives turned out to be anything but. Victories at the polls seemed to have no meaning when it came to influencing the direction of the Court.
Despite anticipation of a historic retirement, there was unspoken anxiety on both sides about whether George W. Bush would be able to seize the opportunity for fundamental change. Drama over possible retirements was ratcheted up as conservatives and liberals sensed the moment for changing the Court's direction might again be at hand. Who knew when another such opportunity might come to pass? If Bush had his moment, would he succeed where others—including his own father—had failed? That morning, change was in the air. But of all the people who had gathered in the courtroom, of all the justices and officials and lawyers and former clerks, only O'Connor and Rehnquist knew how much. Bush would get his chance.
What would happen next would, after a protracted and sometimes bizarre series of steps and missteps, after strokes of strategic brilliance and acts of folly at the highest levels, produce a profound and lasting alteration to the Supreme Court. The Court that had functioned as a unit for more than a decade, unaltered since the seating of Justice Stephen Breyer in 1994, would be transformed by the departures of these veteran judges, Rehnquist and O'Connor, these old friends from the West. It would be a titanic conflict, one that would turn old allies into enemies, damage reputations, and open bitter wounds, and when the smoke of battle finally lifted, one of the most fateful shifts in the country's judicial landscape in a generation would be a fait accompli, with repercussions as yet unimagined.
Excerpted from Supreme Conflict by Jan Crawford Greenburg. Reprinted by arrangement with The Penguin Press, a member of Penguin Group (USA), Inc. Copyright (c) Jan Crawford Greenburg, 2007.