The Oath (32 page)

For his part, Alito spent the next State of the Union in Hawaii.

On March 21, 2010, two months after the State of the Union, the House of Representatives passed Obama’s health care reform law, bringing to fruition decades of work by Democratic presidents and legislators. It marked the signal accomplishment of the president’s term. Obama’s popularity, however, was already tumbling. The economic recovery was faltering. Unemployment was rising. And at the Supreme Court, the justices were waiting for John Paul Stevens to announce he was leaving.

Like Souter, Stevens was a Republican who became alienated from his party. As old as Stevens was, he might well have hung on if McCain had won the previous election. As much as Souter wanted to leave, he too might have remained on the Court in the same circumstances. Stevens had a special fondness for Obama because of their shared Chicago roots. Stevens’s decision, long expected, came on April 9, almost exactly eleven months after Souter’s. Stevens’s letter reflected his plainspoken manner. “My dear Mr. President,” Stevens wrote. “Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.”

In Stevens’s final spring, the conservative decisions continued. Two years earlier, in
Heller
, the Court had overturned a District of Columbia gun ordinance on the ground that the Second Amendment gives individuals a right to keep and bear arms. Because that law was limited to D.C. (which is not a state),
Heller
addressed only the right of the federal government to pass gun control laws. In
McDonald v. Chicago
, the question was whether the new interpretation of the Second Amendment applied to states as well as to the federal government.

The case dealt with a constitutional concept known as “incorporation.” By
their express terms, most of the provisions of the Bill of Rights apply only to the federal government. For example, the text of the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” The amendment says nothing about the states. But during the twentieth century, the Court decided that most of the provisions of the Bill of Rights applied against the states as well. This process, which was associated with Hugo Black during his long career on the Court, was known as “incorporation.” How did the Court decide which rights should be incorporated? Over a series of cases, the justices determined whether the right was “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” The issue in
McDonald
was whether the right of an individual to bear arms, under the Second Amendment, met this test.

Alito’s opinion, for the five conservatives, said yes. The Second Amendment right was so fundamental and deeply rooted that it should apply against the states as well as the federal government. “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in
Heller
, we held that individual self-defense is ‘the
central component
’ of the Second Amendment right,” Alito wrote. In a dissent that was alternately weary and anguished, Stevens pointed out that it was only two years earlier—2008—that the Court for the first time recognized any individual rights under the Second Amendment. “States have a long and unbroken history of regulating firearms. The idea that States may place substantial restrictions on the right to keep and bear arms short of complete disarmament is, in fact, far more entrenched than the notion that the Federal Constitution protects any such right,” Stevens wrote. After just two years, how could the right be “fundamental”? To Stevens, the Second Amendment did not carry the same weight as freedom of speech and religion. He wrote, “It does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality.”

The spring of 2010 was a tense and uncertain time at the Court. The reality of Stevens’s impending departure was sinking in. He would be leaving after thirty-five years, just short of William O. Douglas’s record tenure. Because Stevens had spent so much time in Florida, he was a remote figure, even to some of his colleagues. Nevertheless, he had gone out of his way to welcome Sotomayor in her first year and had struck
up a friendship with Alito as well. Stevens had a polite and respectful relationship with Roberts, which was inevitably colored by their disagreements in almost every major case. Decades of legal duels had poisoned the relationship between Stevens and Scalia. Still, no sitting justice had known a Court without JPS. It was difficult, and a little painful, to imagine one.

A worse problem for the Supreme Court family was Marty Ginsburg’s illness. He was universally beloved. As a law professor and high-powered lawyer himself, he could speak to the justices as a relative equal; as a gregarious and self-deprecating spouse, he could welcome their wives (and O’Connor’s husband) as a peer as well. He was a terrific cook whose talents nearly everyone in the Court building enjoyed at one time or another. His cancer, once seemingly in remission, had returned. He died on Sunday, June 27, 2010, at the Ginsburgs’ home at the Watergate. It was one day before the final day of the Court’s term.

Most of the time, the real operations of the Supreme Court take place behind the scenes. Sometimes, though, the public has a window into the very soul of the institution. Monday, June 28, was such a day. The judicial, the political, the personal, and the ceremonial—all were on display.

Even on Monday morning, no one knew for sure how the day would unfold. As news of Marty’s death spread, it was unclear whether Justice Ginsburg would appear in Court the following day. Most of her colleagues assumed not, especially since Jewish tradition calls for immediate burial of the dead. But since Ruth, as a girl, saw women excluded from the minyan for her father, she never paid a great deal of attention to the formal rituals of her religion. The funeral would be Tuesday, at Arlington Cemetery, with full military honors. (Several mourners saw an amused Marty Ginsburg wink in the selection of the location. He tended to discuss his tenure at Fort Sill chiefly as the time he learned to cook.) On Monday, Ruth went to work.

The audience in the courtroom almost gasped when she appeared from behind the curtain at the stroke of ten. Her hair was pulled back with a black ribbon, her eyes downcast. Roberts said, “It is my very sad duty to announce that Martin David Ginsburg, husband of our colleague Justice Ruth Bader Ginsburg, died yesterday, June 27, 2010,
at home in Washington, D.C.” The chief went on to give a brief summary of Marty’s life, including his “sharp wit and engaging charm.” Roberts was extremely good at this sort of speech, much better than Rehnquist, who tended to mumble and rush through ceremonial occasions. As Roberts spoke, Scalia wept. The Ginsburg and Scalia families had celebrated every New Year’s Eve together since the two judges were on the D.C. Circuit together. To the amazement of their friends, the families had never let politics come between them.

But this was a working session of the Court—the most important one of the year. Alito read the first opinion,
McDonald v. Chicago
, the victory for gun rights. Breyer, as was his custom, grimaced and rolled his eyes as his colleague spoke, and then read his dissent from the bench. Ginsburg had the next opinion, a case that held that a Christian student organization at a public law school could not bar gay students from attending their meetings. Her voice was unaffected by her ordeal.

Roberts went last, in a case where the Court, 5–4, struck down a minor provision of the Sarbanes-Oxley law, which was passed in the wake of the Enron accounting scandal. The decision involved only a small piece of economic regulation, but Roberts’s characteristically eloquent opinion gave a clear sense of which way he wanted the Court to move in the future:

Of course, it was Breyer—bureaucracy’s best friend on the Court—who wrote the dissent. And he read it from the bench, too, scolding Roberts that “judicial opinions are not tickets for one ride in one day on one train. They have principle in all this.” It was an echo of the dissenting opinions in
Bush v. Gore
.

All that was left for the Court was to say good-bye to John Paul Stevens. Roberts read a letter, signed by all the current justices, as well as
Souter and O’Connor, saluting his long tenure and his commitment to justice. “Justice Stevens, we will allow you time for rebuttal,” Roberts said with a smile.

Stevens said that when he joined the Court in 1975 he would have addressed the other justices as “Dear Brethren.” Instead Stevens said, “Dear Colleagues, Collegiality and independence characterize our common endeavor. I thank you for your kind words. Far more importantly, Maryan and I thank each of you and each of your spouses—present and departed—for your warm and enduring friendship. It has been an honor and a privilege to share custodial responsibility for a great institution with the eight of you and with ten of your predecessors.” With midwestern reserve, Stevens’s voice never broke. Roberts then adjourned the Court until the first Monday in October.

A dinner had been arranged for that night, where the current and retired justices would pay tribute to Stevens on his final day on the bench. Both the chief justice and Stevens offered to cancel the event in deference to Marty Ginsburg’s death, but Justice Ginsburg insisted that the event proceed, even though she herself chose not to go. Maryan Stevens was not well enough to attend, and it was, on the whole, a depressing occasion. The justices were tired, sad, grumpy, and frustrated.

No one, though, was as downcast as Sandra Day O’Connor.

THE RETIRED JUSTICES DISSENT

S
he was still the most famous justice. She had been retired for five years, but she was stopped for autographs every day. Always—
always
—parents introduced their daughters to Sandra Day O’Connor. Some people wept. There were nine justices on the Supreme Court, but people recognized O’Connor more than any of them—which was not surprising, since she was the most influential woman in American history. And in keeping with her remarkable life, O’Connor figured out a new way to be a retired Supreme Court justice, too.

In recent decades, Supreme Court justices had all done the same thing in retirement: they died, usually sooner rather than later. But O’Connor was only seventy-five in 2005—not especially old for a justice—and in good health. She loved the job. She reveled in her role as the swing justice. But she decided to quit anyway.

It was because of her husband, John O’Connor. John had been a successful lawyer in Phoenix, but his career never really took off after Sandra was appointed to the Court and the couple moved to Washington in 1981. If John ever felt resentment for being an especially well-known trailing spouse, he never made it apparent. He was an enthusiastic, almost giddy, backer of his wife’s career. (So was Marty Ginsburg for Ruth.) For many years, however, John had been displaying symptoms of what was eventually diagnosed as Alzheimer’s disease. The signs were barely visible outside the O’Connor family at first, but his decline accelerated in the new millennium. In 2003, Sandra started bringing him to Court on most days; he sat on the sofa in her outer office while she worked. Then, in 2004, John started wandering away, which is a common
and dangerous problem for Alzheimer’s patients. The situation was becoming unmanageable.