The Nine (22 page)

The case opened a window on what it meant to be a “conservative” on the Supreme Court—the Rehnquist mode or the Scalia and Thomas approach. To the surprise of many people who followed his career, Rehnquist not only joined the majority in the 7–2 decision upholding
Miranda
but wrote the opinion himself. Rehnquist’s words in
Dickerson v. United States
were characteristically terse, and somewhat grudging, with little of his dreaded “reasoning,” but his thinking was plain: “
Miranda
has become embedded in routine police practice to the point where the warnings have become part of our national culture,” the chief justice wrote. “Whether or not we would agree with
Miranda
’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.” Scalia, joined by Thomas, wrote one of his classic fire-breathing dissents—and illustrated what a conservative Court, untethered to the rule of precedent, would do to landmarks like
Miranda
(and
Roe v. Wade
).

As usual, Scalia couldn’t resist engaging in a little mockery, even of his friend the chief justice. It was true, as Scalia jibed in his dissent, that Rehnquist himself had in the past advocated “an outright rejection of the core premises of
Miranda
.” And Scalia concluded with the sort of purple prose that attracts attention more than converts: “Today’s judgment converts
Miranda
from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance.” It was clear by this point that Scalia didn’t need better arguments to win over his colleagues; what he needed was different colleagues.

10

THE YEAR OF THE ROUT

B
y the final years of Bill Clinton’s presidency, the conservative revolution at the Supreme Court was sputtering. On the issues that mattered most to the members of the Federalist Society and their allies—abortion, federalism, church-state relations, the death penalty, among others—the moderates on the Court held sway.

By this time in Congress, the Republicans, well accustomed to majority status, showed less interest in limiting the size of a federal government that they, to a great extent, now ran. In the sphere of church-state relations, the momentum on the right had also slowed. The career of Jay Sekulow was following a classic Washington trajectory: he came to the capital to do good and stayed to do well.

In one respect, Sekulow did succeed in his goal of creating an American Civil Liberties Union of the right. Like the ACLU, Sekulow’s American Center for Law and Justice built a financial empire based largely on direct-mail (and e-mail) contributions from a loyal base of subscribers. But the differences between the ACLU and ACLJ turned out to be more important than the similarities. Sekulow chose not to create an institution like the ACLU but instead to build a monument to himself.

Sekulow drew a salary of more than $600,000 per year, but that was only the beginning of the riches he extracted from the complex financial dealings of the ACLJ and its related organizations. He also turned the nonprofit corporation into a family business. ACLJ raised about $14 million a year, but much of that was funneled into another entity called CASE, whose board of directors consisted of Sekulow, his wife, Pam, and his son Jordan. Jay’s brother Gary was chief financial officer for both organizations. Gary, Pam, and Jordan Sekulow all drew salaries for their duties, and Jay’s other son, Logan, was given a late-night comedy show on Christian television sponsored by CASE. According to a review of the groups’ finances by the journalist Tony Mauro, Sekulow’s organizations paid for his full-time chauffeur, leased private planes (one from a company owned by his brother’s wife), and bought several homes—all for the benefit of Jay and his family.

The centerpiece of Sekulow’s empire was a town house less than a block from the Supreme Court. The ACLJ bought the building for $5 million, then meticulously renovated it, with such features as a hand-painted mural of the Washington skyline in the ground-floor conference room. (The mural cost more than $40,000.) The ACLJ also bought the town house next door to its headquarters for $1.5 million for the use of Sekulow and his family, as well as an $850,000 home in Virginia Beach and a “retreat” in North Carolina. By the late nineties, the convenient D.C. town house allowed Sekulow to become a familiar figure at the Court, whether he was arguing cases or just stopping by to chat up the Supreme Court beat reporters.

Sekulow kept bringing cases to the Court as well, but in the 1999–2000 term, he discovered the limit of his free speech arguments. The case arose out of one of the central rituals of Texas life—the high school football game.

The local school board in Santa Fe, a small town in the southern part of the state (not to be confused with the city in New Mexico), had studied the Court’s precedents with care, trying to carve out a role for prayer at the Friday night football games. Following extensive negotiations and litigation, the board established a program where a student elected by his or her peers would give a “nonsectarian, nonproselytizing” prayer before each game. Nevertheless, two students, a Catholic and a Mormon, sued to stop the practice, arguing that the policy violated the Establishment Clause.

Sekulow, representing the school board, went before the justices with what had worked before: “Santa Fe Independent School District has adopted a neutral policy which simply permits student-led, student-initiated speech at football games,” he said. The policy “allows for the individual student to determine the content of the message. That message may include a prayer at the student’s discretion…. The Santa Fe policy creates a venue for student expression. It is neutral as to religious or secular speech.”

This time, however, the justices looked behind Sekulow’s characterization of what was happening. The record in the case showed that the entire policy was designed by the school to allow students to lead prayers—not just “speech”—at games. “This is not a neutral speech policy,” Souter said to Sekulow. “It is not merely religious subject matter. It is religious worship. It is an act of religious practice.”

“And if the student decides to engage in a prayer,” Sekulow answered, “that is speech protected by the First Amendment, and to then say that a policy—”

“As private speech,” Souter shot back. “The question is whether that speech can be, in effect, involuntarily inflicted upon those who may not want it by the power of the state.”

Scalia tried to come to the rescue of the school board’s policy, but this time his bombastic style hurt his cause. He attempted to trivialize the dispute by pointing out that the two students who brought the case didn’t even use their real names, which was why the case was called
Santa Fe Independent School District v. Doe
. “Could I ask you about that? That’s just a curiosity I have in this case. I don’t even know who the plaintiffs are,” Scalia said. “Do people have rights to sue anonymously in federal court? Is anybody who just doesn’t want it known that he’s bringing a lawsuit, he’s ashamed of it for one reason or another, can sue anonymously?”

But it wasn’t a question of shame—it was fear. The students who had challenged the policy had been pushed, threatened, and placed in so much danger that the local judge directed that their names be taken off the complaint. That, of course, was precisely the point—that the state had harnessed the power of religious conformity to exclude outsiders.

In an opinion by Stevens, the Court struck down the student-led prayers in Santa Fe by a 6–3 vote, with Rehnquist, Scalia, and Thomas in dissent. The core of Stevens’s opinion was a rejection of Sekulow’s argument that the prayers were merely “private speech” by the students. “These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events,” he wrote. “The expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy.” It was no answer, Stevens continued, to say that students who were offended by the prayers could simply choose to avoid the games. The school district could not “exact religious conformity from a student as the price of joining her classmates at a varsity football game.”

Sekulow was disappointed, of course, but the defeat in the
Santa Fe
case, combined with his earlier victories before the Court, actually wound up being a model for how the Supreme Court ought to work. The majority of the Court had settled on a reasonable and comprehensible rule for religious observances on government property—that the government had to allow genuinely private religious activity, but at the same time officials could not sponsor or endorse such rituals. After
Santa Fe
, the Court stopped getting so many of these cases because the lower courts generally could apply these rules on their own. The Court’s compromise on the issue didn’t satisfy everyone, but it didn’t offend everyone, either—which made it a classic expression of the style of the Rehnquist Nine at this moment in its history. This was not a Court for the true believers—for Scalia, Thomas, and even Rehnquist himself—but rather a Court for the middle-of-the-road majority.

Mostly, that meant O’Connor. Increasingly, it also meant Stephen Breyer.

Like most other justices, Breyer took a few years to feel fully comfortable on the Court, but by the last years of Clinton’s term, he had come into his own. On one level, Breyer made an unlikely power broker. He could be breathtakingly oblivious to his surroundings. One of his law clerks never showed up for work until noon; another lay on the floor for long periods because of a back condition. In neither instance did Breyer inquire or even, apparently, notice, as long as his chambers’ work was done. He was also renowned among law clerks for conducting high-volume discussions of Court business in restaurants and other public places. Breyer was so engaged in the work of the Court that he sometimes ignored the exigencies of everyday life.

But Breyer had been paying attention when he watched his former boss Ted Kennedy push legislation through the Senate, building one coalition at a time, often with sometime adversaries. In the same way, Breyer worked his colleagues—decorously, respectfully, but unmistakably—to try to get them to see things his way. This approach was hardly unique in the Court’s history—it was a crucial part of the Brennan legend—but the Rehnquist Court had no comparable figure. Souter and Thomas were downright reclusive, and Stevens and Ginsburg tended that way; Kennedy, sometimes prickly, often mysterious, also kept to himself; Scalia prided himself on never lobbying, and Rehnquist had no interest in anything that might disrupt the swift procession of cases from oral argument to conference to opinion.

Once, around this time, the chief read a draft opinion of one of Scalia’s attacks on O’Connor and immediately summoned him to the phone. “Nino, you’re pissing off Sandra again,” Rehnquist said. “Stop it!” For her part, O’Connor was willing to entertain suitors from her queenly perch at the center of the Court, but she would not deign to hustle for votes. Breyer would.

Such was the justices’ isolation from one another that the best advocacy could be done only in oral argument, when they were a captive audience for one another. For this reason, Breyer planned his questions with care, not because he was especially interested in the answers but because his questions were a way of making his case to his colleagues. Like the law professor he used to be, Breyer favored hypothetical questions. At times, they could be overly long and complex, and Breyer’s point would be lost; once, mysteriously, he asked a question about taking a pet oyster for a walk in the park. But on other occasions Breyer distilled an issue to its essence. It might be an exaggeration, but not by much, to say that a single question from Breyer on November 10, 1999, brought the “federalism revolution” to a close.