The Nine [11]
2
GOOD VERSUS EVIL
Elections impose rituals of transition on the executive and legislative branches, but the judiciary, especially the Supreme Court, glides uninterrupted into the future. The justices who take their places from behind the red curtain on the first Monday in October are usually the same ones who appeared the year before, and they are likely to be there the following October as well. The Court is defined more by continuity than by change. But still, at some moments, even the hushed corridors of the Court crackle with anticipation of a new order. The fall of 1991 was such a moment.
The signs of transition at the Court were physical as well as ideological. It was one of the rare times in Court history when four retired justices were alive. Warren E. Burger, Lewis F. Powell, William J. Brennan Jr., and Thurgood Marshall were still making occasional visits to the Court, all of them walking embodiments of both the sweep of the Court’s history and its relentless retreat into the past.
Burger, the white-maned former chief justice, who had left the bench in 1986, maintained a surpassing ability to annoy his colleagues, even in retirement. He had departed the Supreme Court to lead a commission on the bicentennial of the Constitution, feeding, perhaps, his taste for pomp, which was always stronger than his interest in jurisprudence. (The celebration in 1987 was widely ignored, even in legal circles.) Worse, Burger’s taste for bureaucratic empire building had led to the construction of a huge structure for the Federal Judicial Center on a desolate plot of land near Union Station. Retired justices of the Court traditionally maintained chambers in the Supreme Court building, but among the hazy justifications for the FJC was that it would provide a new home for retired justices. Characteristically, Burger neglected to check with the justices themselves to see if they had any interest in uprooting themselves from Cass Gilbert’s marvelous structure. None had.
Powell, the Virginia gentleman and centrist who controlled the outcome of so many important decisions, remained as popular as ever and even, in one way, influential. In 1986, the year before he retired, he had cast the deciding vote in Bowers v. Hardwick, which upheld Georgia’s right to criminalize consensual gay sodomy. Byron R. White’s opinion for the Court was brusquely dismissive of the very notion of a constitutional protection for gay sex. But in 1990, Powell told a law school audience that he “probably made a mistake” in joining the majority in that case. Powell’s admission kept the controversy about Bowers alive and signaled that his favored disciple, O’Connor, might also have doubts about having voted the same way.
Burger and Powell passed without much notice on their visits to the Court, but Brennan always drew a crowd. The history of the Court abounds with long tenures, but even three decades does not guarantee that a justice will leave much of a legacy. Forgotten justices like James M. Wayne (thirty-two years on the Court), Samuel Nelson (twenty-seven), and Robert Grier (twenty-four) illustrate that longevity and obscurity can coexist. But Brennan’s thirty-four years ranked among the most consequential tenures the Court had ever seen. His opinion in Baker v. Carr led to the rule of one person, one vote; New York Times Co. v. Sullivan transformed the law of libel to expand First Amendment protections for the press; his opinion in Eisenstadt v. Baird made the result in Roe v. Wade almost inevitable. But even more than the opinions he wrote himself, there was his role as the Court’s master vote counter, first with his great friend Earl Warren and then as the wily leader of the Court’s shrinking but still influential liberal wing.
Brennan’s influence didn’t end with retirement, either, and not just because hundreds of his opinions remained precedents of the Court. He grew especially close to his successor, David Souter. “I’d stick my head in his chamber door, and he’d look up and say, ‘Get in here,