The Nine [185]
Scalia looked fine, his eyebrows dancing in satisfaction at the year’s accomplishments. He hadn’t won every case, and his colleagues had not gone as far or as fast as he would have preferred, but it had still been the best term for Scalia in a long, long time.
Roberts, in the center seat, showed the first traces of gray in his hair, but his face was as unlined as when he’d carried Rehnquist’s casket into the building twenty-two months earlier. His confidence had deepened. It was his Court, and everyone knew it.
Stevens, to the chief’s right, looked the same as ever, two months after his eighty-seventh birthday. (At the time, his older brother, William, was still practicing law part-time in Florida in his ninety-first year.) With his bow tie, unfashionably large tortoise-shell glasses, and inscrutable expression, John Stevens gave nothing more away than he did at the bridge table in Fort Lauderdale, where he would soon be going.
Kennedy’s studied earnestness could not conceal his joy. No justice in history had had a term like his; in the twenty-four cases decided by votes of 5–4, Kennedy was in the majority in every single one. And he had two more majority opinions, and a crucial concurrence, to announce. After an early-morning workout on the elliptical trainer, this seventy-year-old man glowed.
The last two seats on the bench enjoy the dubious privilege of immediate proximity to the press section. On this day, Nina Totenberg of NPR sat closest to the justices, and Clarence Thomas swung so far back in his chair that Stephen Breyer blocked her view of him—and his of her. Before Alito’s arrival, Thomas had spent more than eleven years at the other side of the courtroom from the reporters, an arrangement much more to his liking. Thomas’s chair was adjusted to allow him to lean back much farther than his colleagues, and he, unlike Alito, didn’t look like he was trying to keep his eyes open. Even by Thomas’s own peculiar standards, this had been an extraordinary year. Over an entire Court term, Thomas had sat through one hundred and four oral arguments and not asked a single question.
At the end of the bench, Breyer twitched, leaning forward and then back, his hand straying from the thick stack of papers before him to his bald head and back. Breyer always fidgeted more than his colleagues, but he looked on this day as if he wanted to jump out of his skin. This epochal term on the Court had changed Breyer more than anyone. He had lost cases before, of course, but he had always responded with energy and hope—as when he rallied the liberal clerks out of their despair after Bush v. Gore. Now, the conservative onslaught had darkened Breyer’s naturally sunny temperament. Desperate for productive work throughout this dismal spring, he had thrown himself into lobbying Congress for the pay raises for judges. At least on the other side of First Street, Breyer had a chance of winning.
Three cases remained. Kennedy announced the first, when the Court didn’t even offer the pretense of minimalism and overruled a ninety-six-year-old precedent. Since the case, known as Dr. Miles, in 1911, the Court had held that antitrust law forbade manufacturers from setting minimum prices for their products. The idea was that minimum prices discouraged competition and raised costs for consumers. Henceforth, according to Kennedy and the four conservatives, minimum prices would sometimes be allowed.
As always, Kennedy gave a longer summary of his opinion than the others tended to do, and Breyer, two seats to his right, rolled his eyes in irritation. “Justice Stevens, Justice Souter, Justice Ginsburg, and I have filed a dissenting opinion,” Breyer began, in his singsong voice. “I want