The Nine [105]
Photo 12
International travel transformed the outlooks of several justices. O’Connor with Chinese president Jiang Zemin in Beijing in 2002. Inset: Kennedy in the Hague in 2004.
Photo 13
A frail Rehnquist rose from his sickbed to administer the oath of office to President Bush on January 20, 2005.
Photo 14
President Bush introduces Roberts as his nominee to replace O’Connor on July 19, 2005. To the side are Roberts’s wife, Jane, and daughter, Josephine. His son, Jack, is imitating Spider-Man.
Photo 15
On September 29, 2005, at the White House, Stevens swears in Roberts as the seventeenth chief justice of the United States.
Photo 16
Samuel A. Alito Jr. arrives for the hearing with his wife, Martha-Ann.
Photo 17
Alito at his confirmation hearing on January 11, 2006.
Photo 18
Martha-Ann breaks down in tears at the hearing as Senator Lindsey Graham describes the attacks against her husband.
15
“A LAW-PROFESSION CULTURE”
Not everyone was pleased by the ruling in Lawrence v. Texas. The case turned out to be a critical moment in the culture wars. Justice Kennedy’s opinion was hailed on major editorial pages, in law schools, in big American cities, and in foreign capitals. But those voices, as Justice Scalia was quick to point out, were not the Court’s only constituency. In the struggle between elite opinion and popular will, there were no guaranteed winners.
Lawrence cemented the breach between Kennedy and Scalia. Born within a few months of each other and nominated by the same president only a year apart, the former law school contemporaries and jogging partners had been heading in opposite directions for some time, but the post–Bush v. Gore Kennedy became unrecognizable to Scalia. Indeed, in his opinion for the Court in Lawrence, Kennedy seemingly went out of his way to produce a catalog of everything in modern constitutional law that most repelled Scalia. Like Roe v. Wade, Lawrence v. Texas was based on the “right to privacy,” which Scalia did not believe existed. Kennedy drew at length from Casey, the 1992 landmark that he had produced in secret collaboration with O’Connor and Souter, most notably these oft-quoted lines: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In his dissent in Lawrence, Scalia sneered at what he called Casey’s “famed sweet-mystery-of-life passage.”
Scalia did more than simply ridicule Kennedy’s words. Lawrence reflected what Scalia, as an originalist, most despised—a Court that shifted according to contemporary trends rather than by the immutable rules set down by the framers. But Scalia made a deeper observation. For all of Kennedy’s talk about how the world had changed since 1986, Scalia knew that many Americans—perhaps even most of them—shared his own revulsion for homosexuality. The decision in Lawrence did not spring from anything close to unanimous public opinion on the issue; rather it sprang from one kind of opinion. “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct,” Scalia wrote in his dissent, adding, “The Court has taken sides in the culture war.”
Scalia knew that the public—the real public—was on his side on at least some issues, perhaps even most of them, but especially about the clear subtext of the Lawrence case—gay marriage. Kennedy, wary of pushing his argument too far, had said pointedly in his majority opinion that the case “does not involve whether the government