The Nine [184]
Like Ginsburg, Souter generally declined to denounce his colleagues in his opinions, but one of the last cases in June undermined his restraint. In this case, the same majority rejected an appeal by a prisoner who had filed his case in advance of a deadline set by a federal district judge. Because the judge had misread the law and given the prisoner too much time to file—three extra days—the Court said that the case had to be thrown out. The dissenting opinion by the usually mild-mannered Souter (joined again by Stevens, Ginsburg, and Breyer) reflected true anguish. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch,” he wrote.
In several of these cases—on abortion, campaign finance, and church-state relations—the rulings of the majority directly contradicted Court precedents, but Roberts and his colleagues did not come out and say that the old cases had been overruled. This frustrated Scalia and Thomas, who wanted to see the Court make more explicit denunciations of its past. In a concurring opinion in the campaign finance case, Scalia chided Roberts for failing to administer the coup de grâce to the earlier ruling. “This faux judicial restraint is judicial obfuscation.”
Scalia had a point. Roberts had engaged in the pretense of minimalism—that is, of respecting the Court’s precedents—without actually doing so. Leaving cases like Breyer’s Stenberg opinion on the books without actually following their holdings amounted to a kind of sophistry, and Scalia, to his credit, believed in candor in opinion-writing. But Roberts coolly turned such complaints aside. The labels on the opinions may have been misleading, but their contents were not. By the spring of 2007, the Court was a more conservative institution, and so, it followed, were the rules of American life.
The Court puts off its most contentious cases for the last weeks—and the toughest of all for the last day. That final day of a term always offers an unvarnished picture of the justices. By that point, they are tired and grumpy. In the headlong rush to finish, they have spent entirely too much time with each other and their law clerks and too little on the obligations of everyday life. At the stroke of ten on June 28, 2007, as the justices emerged from behind the velvet curtains, it was clear that a majority needed haircuts.
Samuel Alito, in the junior justice’s chair on the audience’s far right, stared blankly into the middle distance. He had been an appeals court judge for fifteen years before becoming a justice, but the unique burdens of the high court weighed on him as they did on all newcomers. Pasty-faced, phlegmatic, conservative in demeanor as well as conviction, Alito fought sleep from the moment he sat down.
The tiny Ginsburg was all but swallowed up in the next chair toward the middle, her head barely visible above the bench. Immaculate as ever, unlike her weary colleagues, she stared in evident fury straight ahead of her. The term had been a disaster, and she had no intention of pretending otherwise.
In the best of circumstances, David Souter loathed ceremonial occasions like this one. In a venerable custom, before many oral arguments, the Court still allows lawyers to be sworn