The Nine [177]
Your reporter, an up-and-coming “gotcha” star named Laurel J. Sweet, asked me (oh-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said “That’s Sicilian,” and explained its meaning—which was that I could not care less.
That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini’s The Italians: “The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.’…How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “ ‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene—especially when made by an “Italian jurist.” (I am, by the way, an American jurist.)
To be sure, there was something endearing about Scalia’s unique mix of élan and erudition. He was a justly popular public speaker. But over two decades, Scalia failed to charm his most important audience, his colleagues, and his moxie never translated into influence.
In Roberts and Alito’s first year, there turned out to be only one blockbuster case—the appeal of the fortuitously timed decision that convinced Dick Cheney to support Roberts for chief justice. Once again, the justices would turn to the prisoners of Guantánamo Bay.
Few cases had a more unlikely journey to the Supreme Court than Hamdan v. Rumsfeld. The primary instigators of the lawsuit were a small group of military lawyers who, at great risk to their careers, agreed to represent the detainees at Guantánamo. These lawyers, led by Will Gunn of the Air Force and Charles Swift of the Navy, proved to be dogged, if overmatched, in repeatedly challenging the actions of their superiors in the Department of Defense. For help, they turned to a thirty-three-year-old law professor at Georgetown, Neal Katyal, who had served briefly in the Clinton Justice Department after finishing a clerkship with Breyer. With minimal assistance and vastly more experienced adversaries, Katyal constructed a legal assault on the Bush administration’s legal position that changed constitutional history.
In 2004, when the justices had first contemplated the case of the prisoners in Cuba, the Bush administration had argued that the case should have been thrown out forthwith, that the detainees were simply outside the reach of the American legal system, with no rights even to bring a case. The justices had rejected this claim in a pair of opinions that included O’Connor’s tart reminder that “a state of war is not a blank check for the President.” In response, the administration had unilaterally set up a system for allowing the detainees to challenge their incarcerations in abbreviated trials known as commissions. It was this system that the military lawyers, later joined by Katyal, were challenging. For their client, Katyal and his colleagues chose perhaps the least threatening prisoner taken from the battlefields of Afghanistan, Salim Ahmed Hamdan, who was accused of being Osama bin Laden’s driver but not a terrorist or even a fighter.
The young professor had one important advantage in the argument on Tuesday morning, March 28—the extremism of the claims made by the Bush administration. (Katyal was making his first argument before the justices; his adversary, Paul Clement, the solicitor general, was making his thirty-fourth.) Clement argued that in authorizing