The Oath (9 page)

All the justices (except Souter and, in recent years, Stevens) traveled the world. It was one of the perks of a job that paid considerably less than their law clerks made as soon as they entered private practice. (The chief justice makes $223,500, the associate justices $213,900.) They all received multiple invitations to attend conferences or do some light teaching all over the world. Thomas enjoyed the New York University villa in Italy. Scalia and Ginsburg traded reviews of opera festivals in Europe. Breyer visited his wife’s family in England and friends in France. (He speaks fluent French.) Roberts himself was teaching in London when Bush nominated him for the Court.

Few justices reveled in the international scene as much as Kennedy. There was some irony in this distinction because Kennedy appeared to be, at the time of his appointment, the most provincial of men. He grew up in Sacramento and still lived in the house where he was raised. He had gone to Stanford, then to Harvard Law School, but soon returned to his hometown to take over his father’s firm and teach part-time at the local law school, McGeorge.

In fact, during all those years, Kennedy nursed a considerable wanderlust. When he was still a teenager, his uncle, an oil driller, hired him to work on rigs in Louisiana and Canada. While he was in college, he studied for several months at the London School of Economics. (Later, he would recall with affection how much the range of student views differed from those at home. “You had to sit in the room according to your place on the ideological spectrum, and, to give you an idea of what it was like, the Communists—the Communists!—were in the middle!”) His father’s law practice focused heavily on lobbying California state government, especially for the liquor industry. But when young Tony joined the family firm he took it in a more cosmopolitan direction; for instance, he helped create the legal basis for American companies to open factories, known as maquiladoras, in Mexico. In the small world of Sacramento, Tony Kennedy was also a presence in Republican politics and an ally of Edwin Meese, who became a top aide to Governor Ronald Reagan.

Kennedy’s scholarly bent, and Republican connections, led Gerald Ford to appoint him to the Ninth Circuit in 1975. (Kennedy was only
thirty-nine.) He kept his chambers in Sacramento and could have contented himself, as many circuit judges do, with a life of reading briefs and writing opinions. He wouldn’t have had to travel farther than the Ninth Circuit’s headquarters in San Francisco. But Kennedy took an assignment from Chief Justice Warren Burger to supervise the territorial courts in the South Pacific, which meant that the young judge had to travel to Guam, Palau, Saipan, American Samoa, Australia, New Zealand, and Japan. Despite his heavy schedule, Kennedy kept teaching at McGeorge, which had set up a summer program in Salzburg, Austria. Starting in 1990, Kennedy would spend about a month there every summer.

These years were a crucial time in the history of international judiciary. The fall of Communism in the Soviet Union and Eastern Europe set off a flurry of constitution writing and the appointment of judges to enforce the laws. American Supreme Court justices were coveted participants in the process, and no one relished the opportunities more than Kennedy. (O’Connor did a lot of work in this area, too.) Salzburg in particular became a critical crossroads in this process, with much of the action taking place at the Schloss Leopoldskron, a former palace that was used as a set in several scenes of
The Sound of Music
. The schloss was the headquarters of the Salzburg Seminar, a venerable international exchange program.

Kennedy spent his summers in the company of judges from around the world, who came to tap his expertise and enthusiasm. But the influence went two ways. Kennedy was and remained a conservative on most subjects, but the issues on which he moved left invariably coincided with the views of the foreign judges he met. In Europe and most of the civilized world, for example, the death penalty is viewed with revulsion. (Even to be considered for membership in the European Union, a country must abolish the death penalty.) Gay rights and even same-sex marriage have made progress faster in Europe than in the United States. By the time he reached the Supreme Court, Kennedy was well to the left of his near contemporary Scalia on the death penalty and gay rights.

Foreign judges also embraced international institutions and international law with far greater enthusiasm than their American counterparts. As McCain noted in his Wake Forest speech, Kennedy earned the enmity of American conservatives by citing the laws of other nations in his opinion in
Roper v. Simmons
, which struck down the death penalty for juveniles. By 2005, the international judicial elites viewed George
W. Bush with special disdain, abhorring the Texas swagger that produced, among other things, the Iraq War. As Kennedy knew better than most, judges around the world held a special reverence for the Geneva Conventions, which attempt to regulate the treatment of prisoners in wartime. And the Geneva Conventions were at the heart of
Hamdan v. Rumsfeld
.

In Hamdan’s case before the Supreme Court, a key issue was whether the American government was required to treat the detainees in accord with the Geneva Conventions. Paul Clement, who had been promoted to solicitor general, said in the oral argument, “I don’t think he’s protected by the Geneva Conventions, but that’s largely because he chose not to comply with the basic laws of war.” In public and private, the Bush administration had described the detainees not as soldiers but as terrorists.

Souter pressed Clement on the conventions. “Well, do you agree that it applies as part of the law of war?” he asked.

“Well, I don’t think, consistent with the position of the executive, that the Geneva Convention applies in this particular conflict,” Clement answered.

“But that, I guess, is the problem that I’m having,” Souter replied.

Making his first argument before the justices in
Hamdan
, Neal Katyal insisted the government had to prove that its procedures complied with the Geneva Conventions. He clearly impressed Kennedy, who played his words back to Clement, saying, “He says there is a structural invalidity to the military commission.… And the historic office of habeas”—a legal action asking to free a wrongfully imprisoned individual—“is to test whether or not you are being tried by a lawful tribunal. And he says, under the Geneva Convention, as you know, that it isn’t.”

“Well, and we disagree with those claims,” Clement replied.

A 4–4 vote would have affirmed Roberts’s judgment on the D.C. Circuit, but Kennedy voted with the liberals, and the military commissions were struck down. Stevens wrote the opinion for the Court and, with characteristic directness, stated that the United States must comply with the Geneva Conventions and, accordingly, the law “requires that Hamdan be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized
peoples.” Kennedy wrote a concurring opinion that was, in his fashion, more expansive: “Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.” Either way, the point was the same—another clear rebuke to the Bush administration’s methods of conducting war on terror.

With the exception of
Hamdan
, Roberts’s first year was generally a quiet one. As a rule, most of the eighty or so cases a year heard by the Supreme Court attract little attention from the general public. They involve the interpretation of federal statutes, the criminal sentencing practices of the federal courts, or disagreements between circuit courts on any number of issues. There are always several tax cases, a few bankruptcy matters, and a case or two involving the unique legal status of Native Americans. Among law clerks (and occasionally among justices), these low-profile controversies are known, uncharitably, as “dogs.”

Sometimes, though, there are cases that are so powerfully obscure, so utterly insignificant while at the same time so maddeningly complex, that the justices (and certainly their clerks) stare at the briefs and wonder—what were we thinking? Why?
Why?
Holding the briefs at some distance, like a mysterious discovery from the back of the refrigerator, the denizens of One First Street, steeling themselves against boredom and fatigue, begin reading.

One such dog—a veritable Great Dane—hit the Court’s docket toward the end of Roberts’s first year. Each petitioner for certiorari to the Court includes a section called Questions Presented, which the lawyers use to define the issues in a way that will entice the justices to accept the case for review. In this one, the questions were:

The
what
exception? The stupefying dullness of these questions, and of the case as a whole, was apparent to all, and the matter of
Marshall v. Marshall
would have passed into obscurity but for one thing. The legal name of the plaintiff may have been Vickie Lynn Marshall, but she was better known by her stage name—Anna Nicole Smith.

It later became a kind of sport among the law clerks to speculate whether any of their bosses had heard of Anna Nicole before the briefs in the case first crossed their desks. The consensus (for all nine) was no. Her renown, such as it was, appeared so far on the cheesy end of the celebrity spectrum that it was indeed possible that her name did not ring a bell. Breyer cheerfully acknowledged to his clerks that he had never heard of her, but he also enjoyed a good laugh more than most of his colleagues, so he started referring to her, and her case, as “the stripper.”

This was not precisely accurate. Her name at birth was Vickie Lynn Hogan, and she was the second child born to her sixteen-year-old mother. At the age of nineteen, with a child of her own, she became an exotic dancer (not a stripper, exactly) in one of Houston’s lesser clubs. To add to her appeal, according to a biographer, she had several rounds of plastic surgery “to create her infamous 42DD bra size, the product finally of
two implants on each side and a total of three pints of fluid.” She also began using the name Anna Nicole Smith.

One day a man in a wheelchair named J. Howard Marshall II stopped in to watch her at a place called Gigi’s. Many years earlier, Marshall had been a professor at Yale Law School, where he had cowritten scholarly articles with his faculty colleague William O. Douglas. Marshall left academia for the oil business and became an early investor in the company later known as Koch Industries (which would later have its own place in Supreme Court history). At the time he was wheeled into Gigi’s, Marshall was worth as much as $1.6 billion.

The first time they met, Marshall and Anna Nicole spent the night together, and they married two years later, on June 27, 1994. Marshall was eighty-nine, and Anna Nicole twenty-six. He died thirteen months later, on August 4, 1995. In the meantime, Anna Nicole had become famous as a model and an actress of sorts as well as the subject of an early reality television series.

Marshall did not mention Anna Nicole in his will, and he left virtually his entire fortune to his son E. Pierce Marshall. (Another son,
J. Howard Marshall III, was also excluded from the will.) A protracted legal struggle over the estate ensued in courts all over the United States. Notwithstanding the omission in the will, one court awarded Anna Nicole $474 million, which another knocked down to $88 million, which still another reduced to zero. Five years after Marshall’s death, a federal court in California and a state court in Texas both asserted jurisdiction over the will, and it was this dispute that eventually wound up before the justices. When they heard arguments in this arcane matter of federal jurisdiction, the courtroom was nearly as crowded as it had been for
Bush v. Gore
.

Responding to the buzz in the audience, the two justices most inclined to show off, Scalia and Breyer, dominated the argument with questions. Breyer may not have heard of Anna Nicole at the start of the case, but he had clearly studied the material about her. “The fact that three pages of the living trust, according to the judge, were created after the event of that trust and slipped in without his knowledge,” he said to Pierce’s lawyer, “I mean, it’s quite a story.”

Anna Nicole herself wore a subdued black suit for the occasion, and, according to her spokesman, she wept during the argument because she was overwhelmed by loving memories of her late husband. As it happened, the Court ruled unanimously in Anna Nicole’s favor and returned the case to federal court in California. Roberts assigned the case to Ginsburg, the Court’s leading expert on federal procedure.

The postscript to
Marshall v. Marshall
was melancholy, even tragic. About a month after the Court’s decision, Pierce Marshall died suddenly, at the age of sixty-seven. Three months later, Anna Nicole’s twenty-year-old son died of a drug overdose. Five months after that, Anna Nicole herself died of an accidental drug overdose in a hotel room in Hollywood, Florida. Anna Nicole’s estate continued the litigation against Pierce’s estate (over the proceeds of J. Howard II’s estate). In an extremely rare development, the Supreme Court agreed to hear the case a second time, in 2010, to consider an issue relating to bankruptcy law. The case was by then known as
Stern v. Marshall
, as the lead plaintiff was Howard Stern, Anna Nicole’s paramour. (He was not the radio shock jock, though they were often confused.) Without Anna Nicole’s presence, the second oral argument drew little notice. The Court ruled 5–4 against her estate, but the litigation continues in 2012.

More than his colleagues, Roberts brought a literary flair to opinion writing. Inevitably, then, given the circumstances, Roberts began his
opinion for the Court in the second Anna Nicole case with a quotation from
Bleak House
, by Charles Dickens. “This ‘suit has, in course of time, become so complicated, that … no two … lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it’; and, sadly, the original parties ‘have died out of it.’ ”