Chapter One

Origins

            Who is on the Court matters. So also where they came from. Experience provides the background, the challenges, the memories and justifications around which we all build our beliefs. People react in multiple, often unexpected ways to the experiences that "shape" them. Each of the justices tried out conflicting ideas and discarded some. Some have surprised us. Some have "grown" in liberal parlance, "disappointed" or "flipped" in conservative parlance, as they moved from right to left in the course of their service on the Court. Experience is not destiny, but experience matters.

    The justices, all of them, come from the edges of the country. Two were brought up in California. Four attended Stanford University as undergraduates and two of them continued as law students. Two of the Stanford graduates left for Phoenix, one stayed in California. Four justices are easterners. Two were brought up in New York City, one spent almost his entire life in New Hampshire, and one came from North Carolina. And one justice, as if to prove the point, moved from the West Coast to Boston. Six justices attended Harvard, one as an undergraduate, one for a master's degree, and five attended law school there. Two justices taught there. Two justices were brought up near the shores of the Great Lakes. One lived his life there until his appointment to the Court. The justices are evenly divided among those who had lengthy careers in private practice, teaching, or government service. Five justices havetaught in law school, some at more than one. Two justices have taught at Harvard and two at the University of Chicago, one each at Northwestern, Virginia, Columbia, Rutgers, and McGeorge in California. Three studied in England. There is no heartland on the Court.

William Hubbs Rehnquist is the Chief Justice. He and Justice Stevens are the two members of the Court who were brought up on the shores of Lake Michigan. They were born four years and a hundred miles apart. In every other respect, their careers have diverged.

    Rehnquist was born in 1924, making him one of the oldest members of the Court as well as its Chief. He comes from Milwaukee and was brought up in Shorewood, an aptly named affluent suburb on the shore of Lake Michigan, still full of gorgeous mansions, breathtaking lake views and a few Frank Lloyd Wright houses. His father was in business as a paper wholesaler. His mother was a linguist, fluent in several languages. The family were devoted Republicans who encouraged values of self-reliance and hard work in their children.

    When the Japanese bombed Pearl Harbor, Rehnquist was seventeen. In response he organized demonstrations and participated in civil defense. Rehnquist spent one year at the elite Kenyon College in Ohio before enlisting in the army. The army sent him to North Africa, detailed to observe and relay weather patterns. North Africa taught him the joys of warm weather. After the war, instead of going back to Kenyon, he finished his studies at Stanford.

    Rehnquist tried Harvard for a master's degree in political science but found that campus far too liberal. So he went back to California to study law at Stanford, where he was much more comfortable. One of his classmates was the future Justice Sandra Day O'Connor. Rehnquist graduated second in his class; O'Connor was next in rank.

    His student years show Rehnquist as a fine student who was both restless and independent. Since then he has never been far from controversy.

    Rehnquist's first legal position was as law clerk to Supreme Court Justice Robert H. Jackson. Jackson had been the United States prosecutor at the Nuremberg trials called to bring Nazi war criminals to justice. When Rehnquist arrived in Washington, Brown v. Board of Education, the school desegregation case, was working its way onto the agenda of the United States Supreme Court. Rehnquist would tell Jackson that segregation should be upheld.

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, but I think Plessy v. Ferguson [the 1896 decision upholding segregation so long as it was "equal"] was right and should be reaffirmed.

Jackson of course voted to overrule Plessy and desegregate the country. Rehnquist could have learned from that experience to respect the deep commitment many Americans have to a vision of social justice. He would later assert that his memo was not his own opinion but merely outlined the arguments for Jackson's benefit. But Rehnquist would continue to insist that law should be interpreted without regard to whether it was "humanitarian," that those who wrote the law should not be understood as having meant that the law they wrote should be read to do substantial justice. And in 1964 he opposed passage of an ordinance to bar discrimination in places of public accommodation. In his confirmation hearings, though he would deny it, witnesses would tell the senators that Rehnquist had challenged every black voter he encountered, and threatened blacks to try to prevent them from voting.

    Later he told U.S. News and World Report that the Warren Court and the justices' clerks showed

extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, [and] great sympathy toward any government regulation of business.

It sharpens those comments to realize how great the variance was between Rehnquist's description and what the clerks he criticized and their bosses thought they were doing. In the criminal area, for example, the Warren Court was quite explicit that it thought it was making sure that convictions were accurate, that the innocent were not railroaded by abusive procedures into convictions for crimes they had not committed, and that the rest of us are not abused by law enforcement gone out of control.

    A little history may put both Rehnquist and the clerks he criticized in perspective. When Rehnquist was too small to remember, a variety of prestigious commissions looked at American police practices and found them little different from what we now condemn in the "Third World." Long before Warren, the Supreme Court had condemned such abusive practices as the "third degree"—the extraction of confessions by force—and trials without minimal protections for the innocent. The Warren Court differed from its predecessors in enforcing constitutional requirements, which by then were uncontroversial, by means of a set of prophylactic rules. Rehnquist would spend a large part of his career working to dismantle those protections.

    Both Rehnquist and O'Connor built their careers in Phoenix. Phoenix was home to Barry Goldwater, senator from Arizona, author of Conscience of a Conservative, and living conscience of the conservative movement. Rehnquist campaigned for Goldwater. But Rehnquist stayed out of the mainstream-Republican-dominated large law firms representing major corporate clients that are the typical opportunity of former Supreme Court clerks. Instead he engaged in what lawyers call general practice, a mix of wills and other forms of wealth transfer among members of a family and between generations, plus real estate purchases, property disputes, and other fairly routine events.

    Rehnquist returned to Washington as assistant attorney general in charge of the Office of Legal Counsel in President Richard Nixon's administration. In that position Rehnquist became anathema to liberals. He argued that the president had the power to order wiretaps without a court order; that police could barge into property without warning or knocking; that people could be held in custody without bail because they were thought to be dangerous; and that relevant constitutional guarantees did not bar those practices. Rehnquist also argued that the writ of habeas corpus should be drastically restricted. The writ of habeas corpus is guaranteed by the Constitution to allow courts to insist that officials not be able to hold people in custody in violation of their rights and to help control the abuse of official power. Rehnquist argued that it should not be available after trial, although the Court had confronted serious abuses of constitutional rights at trials that amounted to little more than kangaroo courts. The Supreme Court had concluded that evidence seized in violation of constitutional rights should not be admissible in court. Its purpose was to discourage law enforcement personnel from employing abusive practices in violation of constitutional provisions. Rehnquist argued that the rule against the admission of such evidence should be abolished.

    Perhaps most painful for liberal senators was his participation in the planning for the roundup of demonstrators on May Day in 1971. The nation was caught in an agonizing struggle over the war in Vietnam between those whose patriotism demanded support for the war effort and those whose concern for human life, both of our troops and of innocent civilians caught in conflict, demanded an end to the fighting. Demonstrators themselves split into many competing factions. Some demonstrations were dignified and orderly: carrying candles to a vigil in front of St. Patrick's Cathedral in New York, reading the names of American soldiers killed in Vietnam at demonstrations in front of the White House. Others burned draft cards and ROTC offices, and tried to obstruct munitions factories. Rehnquist argued for surveillance of demonstrators without a warrant or court order. One public demonstration was called for May Day, 1971. Rehnquist worked to suspend reporting rules so that the police could arrest masses of people without documentation. Twelve thousand people were arrested; twelve were convicted. For the others, there was no evidence that they had done anything in violation of the law—demonstrating to show the intensity of one's convictions in opposition to a policy one considers immoral is not, of course, a crime. Among those rounded up and held were many whose presence on the street had nothing to do with the demonstration. Rehnquist defended the roundups and described the demonstrators as "barbarians."

    In 1972, Nixon challenged the liberal Senate by nominating William H. Rehnquist to be Associate Justice of the Supreme Court, giving it a nominee whose abilities were clear but whose rejection of liberal principles was equally clear. After a hotly fought contest, Rehnquist took his seat in January 1972. President Reagan nominated him for the position of Chief Justice, to replace Chief Justice Warren E. Burger, in 1986.

In the rarified ideological environment of the United States Supreme Court, justices who are not at the extremes of the Court are often described as pragmatic, unpredictable, or weak, as if they were rolled around by giants in the conference room or by attorneys in the courtroom. Sandra Day O'Connor has a strong will and mind of her own, but it has been shaped by a complex of experience that often leaves others puzzled.

    Sandra Day O'Connor's family lived in a remote area of Arizona on the Lazy B Ranch founded by her grandfather Henry Clay Day, named for the great pre-Civil War Whig senator and architect of historic compromises. The area was so remote that the family had to drive to El Paso, Texas, in 1930 so that Sandra Day could be born in a hospital. The ranch still did not have either running water or electricity. O'Connor later described the ranch as a place "where one learns to work and do things for oneself." And she has described the annual cattle roundups as an example of the communal spirit on the frontier where people helped one another.

    Though the ranch lacked many of the comforts of modern life, her family was determined that Sandra would be well educated. So she went to El Paso to live with her maternal grandmother, attend an exclusive girls' school, and then attend and graduate from Austin High School at sixteen. Fulfilling her father's frustrated ambition, Sandra Day applied only to Stanford. It took her a mere five years to complete both her undergraduate and law degrees there.

    After Stanford she tried to get a job among private firms in California. Not one would hire this star graduate of California's premier law school. At least one major law firm responded to her application by offering her a job as a secretary. Some women, like Justice Ginsburg, a colleague on the Court, would respond to discrimination by becoming a crusader for women's rights, path breakers in the emergence of a new social and economic order. O'Connor's response would be relatively conservative, but the experience continued to rankle her nonetheless. For the moment, Sandra Day O'Connor found employment as a deputy county attorney for San Mateo County, California, while her husband John O'Connor completed his studies, also at Stanford Law School.

    A year later, in 1953, she followed her husband to Germany, where John O'Connor served in the army and Sandra Day O'Connor worked as civilian attorney for the Quartermaster Market Center. They moved to Phoenix in 1957, where she did some private practice, gave birth to three sons, and then concentrated her energies on bringing up her children. In 1965 she went back to work as assistant attorney general for Arizona, and four years later she began a political career in the Arizona legislature. She was elected to the Maricopa County Superior Court, and then appointed to the Arizona Court of Appeals in 1979.

    Like Rehnquist, Sandra Day O'Connor became active in Republican politics. Senator Goldwater and others urged her to run for governor. It was Democratic Governor Bruce Babbitt who appointed her to the Arizona Court of Appeals. When Reagan appointed her to the Court in 1981, there was reason to believe she would be a different kind of conservative from her classmate and colleague Bill Rehnquist.

    Historians have noted that life on the frontier often breeds a very conservative outlook. But O'Connor's background gave her many opportunities to digest competing perspectives, frontier and urban independence, competition and cooperation, ethnic and cosmopolitan values. And she brought to the Court an experience with discrimination more pointed than any of her new colleagues, save, of course, Thurgood Marshall.

Antonin Scalia was born in Trenton, New Jersey, in 1936 but brought up in Queens. Both his parents were educators—his mother taught in grade school and his father became a professor of Romance languages at Brooklyn College. His was a relatively successful family despite the depression raging when he was born. Perhaps it is merely coincidence that Scalia and Rehnquist, two of the Court's archconservatives and advocates of a formal, literalist style, each had a parent who was a specialist in language.

    Justice Scalia is one of the Court's most militant textualists. He believes the Court should limit itself to plain language and specific historic examples, omitting historic principles if at all possible. George Kannar has described the influence of Scalia's father and Catholic upbringing as the major influences on his judicial approach. Part of the influence lay in his father's professional work. Eugene Scalia spent his career translating the work of a variety of Italian writers but insisted on literalness and doubted the ability of any translation to convey the original meaning. The text was supreme and its meaning was to be found solely in its language, not in efforts to go "behind" the text and study the author's life and circumstances.

    In Kannar's view this was buttressed by Scalia's Catholic upbringing. Antonin, or Nino to his friends, studied at a Catholic military school in Manhattan, then graduated, first in his class, from Georgetown, a Jesuit university, before studying at Harvard Law School and graduating magna cum laude in 1960. Kannar describes Scalia's Catholic upbringing as a constant reference to learned formulae. The result, Kannar asserts, was that Scalia's Catholic training and his father's work in literary criticism led in the same direction—toward a severe textualism.

    But Catholic education is also Thomist, demanding adherence to higher law when human law is unjust. Scalia denied the Thomist heritage of his Catholic education. And as Kannar repeatedly points out, Scalia's greatest nemesis on the Court, William Brennan, was also brought up in the Catholic tradition, and Scalia's firmest ally, Chief Justice Rehnquist, was brought up in the Protestant tradition.

    Textualists, moreover, come in all stripes. The late Justice Hugo Black was a textualist and a liberal. Perhaps some explanation for Scalia's views may lie in Scalia's ethnic and immigrant experience. There is nothing automatic of course in the immigrant experience and some have reacted quite differently. But Scalia never got over the feeling that since his parents were immigrants and not a source of the racial problems plaguing America, he and his family also had no responsibility to play a part in the solution. "My father came to this country as a teenager.... Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man." According to Scalia, various ethnic groups who had been victims of discrimination were being forced to bear the burden of affirmative action by those at "the top of the social heap where one can speak eloquently (and quite safely) of restorative justice."

    Nevertheless, Scalia's rise into the elite of American society was meteoric. When he left law school he practiced with a major commercial law firm in Cleveland, taught at two very prestigious law schools, the University of Virginia and the University of Chicago, and served in the Nixon and Ford administrations. His professional career was largely consumed by working on deregulation of business. President Ronald Reagan nominated him to the United States Court of Appeals for the District of Columbia Circuit in 1982. Then, in 1986, Chief Justice Burger resigned and President Reagan nominated Rehnquist for the chief justiceship and Antonin Scalia to fill Rehnquist's old seat on the Supreme Court. Despite this hugely successful career, Scalia brought with him a sense of hurt, a strong sense of method, and a scholar's knowledge and tools.

Born in 1936, the same year as Antonin Scalia, Justice Anthony Kennedy is one of the Court's Californians. Kennedy's father was a well-connected and very successful lawyer and lobbyist; Kennedy's mother very much involved in community affairs. Kennedy attended Stanford as an undergraduate. Then he came east to study, spent his senior year at the London School of Economics, and studied law at Harvard. After graduating in 1961, Kennedy went back to California to live. He practiced law in San Francisco and then in Sacramento until his appointment to the United States Court of Appeals for the Ninth Circuit in 1975. During much of the time he was in practice and all of the time he served on the Court of Appeals, Kennedy also taught constitutional law at McGeorge School of Law.

    When Kennedy's father died in 1963, Kennedy took over his father's practice although he was still a very young lawyer. The practice included major liquor and optical interests, among other significant clients, and young Kennedy became their lobbyist. In the bargain he inherited many of his parents' political contacts. He also inherited much of his parents' skill.

    Lobbying took him to "exclusive" country clubs where blacks and women were among those excluded. Kennedy joined anyway and resigned on the eve of his nomination to the Supreme Court. Sacramento was unconcerned with discrimination and, in a 1968 interview, Kennedy told the press that a club should be able to "exclude members as it chooses." The American Bar Association discouraged membership in clubs that discriminated, but Kennedy argued to the Senate Judiciary Committee at his confirmation hearings that his membership was not proscribed because the exclusion was not the "result of ill will" or "intended to impose a stigma," although neither the bar association nor the law excused categorical racial or gender discrimination in that way. On the Ninth Circuit, where he made his own individual selections, five of his thirty-five clerks were women and one was nonwhite. None were black. Kennedy may have surprised some of his conservative friends by his willingness to drop by at a housewarming for a gay couple who had moved in nearby. "If they can tolerate me, I can sure tolerate them," Kennedy told a friend.

    Kennedy won a place in Ronald Reagan's heart with his work as draftsman and major proponent of a 1973 initiative to limit taxes in California. Reagan was governor of California at the time. The voters defeated the measure, but Reagan almost immediately urged President Nixon to appoint Kennedy to the Ninth Circuit, although it was ultimately President Ford who sent his name to the Senate.

    On the Ninth Circuit, Kennedy was conservative but avoided sweeping pronouncements and was willing to change his mind. A colleague, Judge Alex Kozinski, described Kennedy's reaction when his clerks found it difficult to draft an opinion according to Kennedy's instructions. "`If the case wouldn't write that way,'" Kennedy would wonder, "`maybe the result was wrong.'"

    At the time of his nomination to the Supreme Court, Kennedy still lived in the house in which he grew up, still attended the same Roman Catholic church he attended as a child and in which he served as an altar boy, and still maintained boyhood friendships.

    Kennedy was not Ronald Reagan's first choice for the Supreme Court. Rehnquist, O'Connor, and Scalia were all appointed or promoted by Reagan. When Justice Powell retired, Reagan first nominated Robert Bork, whose nomination was defeated in a very contentious Senate battle. Reagan then nominated Douglas Ginsburg. Only after Ginsburg withdrew following revelations about his use of controlled substances at parties was Kennedy nominated.

    One focus at the hearings on Kennedy's nomination was a talk he gave at Stanford in which he was very critical of the idea of unenumerated rights but agreed that some had a strong constitutional grounding. Senators and analysts searched his words for a clue to his opinion about Roe v. Wade. It would be years before they found out.

    At the point of his nomination, one could have described Kennedy as a man from a very traditional white privileged background who rarely saw its moral limits, or one could have described him as skillful, pragmatic, and ready to compromise.

Justice Clarence Thomas, perhaps the Court's angriest justice, was born in Pin Point, Georgia, in 1948, the only sitting justice born after World War II, the Court's only southerner, and only black. Like Sandra Day O'Connor, Thomas was initially raised in a home without indoor plumbing or electricity and then sent to live with grandparents while going to school. But the similarity ends there.

    Pin Point was an extremely poor and very conservative rural community, populated by the descendents of slaves who eked out an existence at the fringes of society in segregated Georgia. Thomas's mother married after becoming pregnant with Clarence's older sister. Her husband deserted her and the family when Clarence was an infant. Neither illegitimate births nor desertion were typical of this community and the Thomases were humiliated. To survive, his mother moved into a rotten wooden shack with a sister. She supported her family by shucking oysters and crab for five cents a pound and working as a maid in Savannah.

    One day, after their mother left for work, Clarence and his younger brother accidentally set fire to the house. Leola Thomas was greeted in Savannah with the news that the house was gone. Impoverished, she pleaded with her father to take the children in. Her father, Myers Anderson, had abandoned her as a small child when her mother died and her relationship with him was never warm. Anderson and his wife had no children, and he was not interested in taking the children in. But he agreed to take the boys at his wife's urging. Clarence Thomas's sister was left to be brought up in the same miserable conditions that his mother had.

    Thomas remembers his childhood as marked by his own hard labor and determination to succeed. He contrasted his success, which he attributed to his own efforts, with his sister's welfare dependency, though she had a family to support when she too had been deserted, and, by the time of Thomas's remarks, was working several jobs in an effort to support their aunt.

    In fact, the move to his grandfather's home made a crucial difference. Anderson was a self-employed tradesman who had put together a middle-class life by means of extremely hard work. That hard work reflected a sense of mission for himself and his community. And once he agreed to take them in, he was determined that the boys would succeed. Anderson pushed the boys to work long hours both on their school assignments and on the family business and met any resistance or transgressions with whippings. He was also determined that his grandsons would share his sense of obligation to the black community. Anderson worked with the local NAACP, brought young Thomas to meetings, and bragged about the boy's success as evidence that blacks could make it.

    Grandfather Anderson sent the two boys to a Catholic school in Savannah that had opened in the nineteenth century for the purpose of educating black youth and was staffed by a determined group of white Franciscan nuns. Punishment was physically painful, but the children were pushed hard to learn.

    Thomas continued at a segregated parochial high school until his grandfather switched him to St. John Vianney Junior Seminary, which had been a white institution. Thomas was one of the first black students at the seminary and he was admitted despite having to repeat the tenth grade. His grandfather then sent him to Immaculate Conception Seminary College in Conception Junction, Missouri, in 1967-68. Again he was one of three black pioneers in a white institution.

    In the wake of the assassination of Dr. Martin Luther King, Jr., Holy Cross College, in Worcester, Massachusetts, set up a scholarship in King's honor and stepped up its recruitment of blacks. Grandfather Anderson was incensed at Clarence's decision to abandon study for the ministry. Without his grandfather's support, Thomas received one of the first Holy Cross King scholarships. He graduated in 1971 though he had nearly packed up again in response to the racism he experienced there.

    From there Thomas went to Yale to study law. Yale had a long history of admitting and graduating black students, but in small numbers. The faculty at the Yale Law School had long included many who played large parts in the struggles for both civil liberties and civil rights, including work on the pivotal NAACP brief in Brown v. Board. No faculty could have been more dedicated to the movement for integration. Nevertheless, when Yale decided to expand its black student population significantly, that decision was very controversial within the faculty. Yale has also been the nation's most selective law school, the result of its small size combined with its high standing in the legal community. Thomas graduated in 1974 but without the top-of-the-class status enjoyed by some of his eventual colleagues on the Court.

    For Thomas, his education was a mixed blessing. He benefited from the establishment of a school for blacks by white Catholics in Savannah. He benefited from scholarships to Holy Cross and Yale. And he benefited from special admissions designed to diversify St. John Vianney, Immaculate Conception Seminary, Holy Cross, and Yale Law School. But Thomas grew up lonely and angry. His bookish habits and the rigorous schedule forced on him by his grandfather separated him from his black peers. As a pioneer in white schools, he confronted bald racism and became disillusioned with the church. Eventually, he also became disillusioned with black leadership.

    Initially, he was attracted by Malcolm X and other black radicals. But Thomas found Thomas Sowell's brand of black conservatism much more satisfactory. Sowell treated all efforts at integration and assistance as attacks on the black community. White generosity was designed to benefit the white community, not the black. Getting into the white world meant abandoning the black. Somewhat inconsistently, Sowell argued that blacks should devote themselves to personal gain rather than the advancement of the black community. These views undoubtedly resonate with the work ethic that is much stronger in the black community than most whites understand, even while they conflict with the black sense of grievance at both careless and deliberate exclusion and mistreatment by the white world. Thomas took the individualist, self-help, capitalist values and rejected the ethnic politics of his elders. Thomas's views about the place of black men in a white world spelled a troubled relationship to the civil rights revolution—Thomas accepted and insisted on nondiscrimination as a human right but attacked affirmative action as a breach of that right, and defended racially separate institutions.

    Thomas's politics also widened the breach with his grandfather, which had opened when he left the seminary. When Thomas joined the Republican Party the breach widened.

    When he graduated from Yale, Thomas was offered a job at a firm where he had worked during the summer as a law student. The firm did civil rights work in Georgia. Thomas chose instead to work for Attorney General John Danforth of Missouri, later senator from Missouri. He stayed with Danforth from 1974 to 1977. The Danforth connection became a major source of Thomas's political rise. He left the attorney general's office to work for the Monsanto Company, a major chemical manufacturer, from 1977 to 1979, then rejoined Danforth, now senator, as legislative assistant from 1979 to 1981.

    President Reagan appointed Thomas assistant secretary of education for civil rights and then chairman of the Equal Employment Opportunity Commission. As chairman, he reoriented the E.E.O.C. from the prosecution of large class actions affecting many jobs to the prosecution of individual claims. President Bush appointed him to the U.S. Court of Appeals for the District of Columbia, and nominated him for the Supreme Court in 1991.

    The nomination of Thomas posed a difficult problem for the black and liberal communities. The NAACP hesitated but eventually opposed Thomas because Thomas had opposed many efforts to redress discrimination against minorities by means of so-called affirmative action plans. White liberals were predictably uncomfortable attacking a black candidate. They hoped Thomas's background would elicit some sympathy for the people he had left behind. The Bush administration relied on Thomas's rags-to-riches story to negotiate the confirmation process in the Democratic Senate. The nomination was moving smoothly until the detailed description by Professor Anita Hill of his sexual remarks to her came to light. The Senate Committee aired those complaints in a set of televised hearings that have been discussed endlessly since and whose legacy has been reshaped through the lens of the subsequent impeachment hearings. Whatever the truth of those events, many senators took the position that they should defer to the president and that a nominee is entitled to the office unless allegations against him can be proven by a clear preponderance of the evidence—a position questioned by many constitutional scholars and not shared by the Republican Senate, which has held up many of President Clinton's nominations for judicial office. Thomas was confirmed in a close vote, 52-48.

    Thomas brought with him the sting of segregation and discrimination alternating with the blessings of the white world. He brought anger at the white world coupled with a desire to succeed in that world on its terms. He had toyed with a variety of ideological tools, and never found a comfortable niche.

(Continues...)