The Nine [187]
At this direct slap, Alito roused himself and stared across the bench at Breyer. Roberts didn’t change expression, but the muscles in his jaw twitched. Above all, Breyer was taking a stand against the agenda that was born in the Reagan years, nurtured by the Federalist Society, championed by the right wing of the Republican Party, and propelled by the nominations of Roberts and Alito. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade and allow states to ban abortion. As Breyer knew better than anyone, the two new justices, plus Scalia, Thomas, and (usually) Kennedy, put all those goals tantalizingly within reach.
As soon as Breyer finished, Roberts, graceful as always, closed the year by paying tribute to Harry Fenwick, the Court’s food preparation specialist, who would be retiring two days later after thirty-eight years of service. “Thanks for everything, Harry,” Roberts said. Then the chief justice declared a recess until the first Monday in October.
EPILOGUE
THE STEPS—CLOSED
On the day that President Bush nominated John Roberts to the Supreme Court, the future chief justice reflected upon the great symbol at the heart of Cass Gilbert’s design—the steps. “I always got a lump in my throat whenever I walked up those marble steps to argue a case before the Court,” Roberts said, “and I don’t think it was just from the nerves.” Over the years, countless Americans have shared Roberts’s sense of awe as they entered Gilbert’s temple of justice. Soon, however, no one else will. The steps will be closed to the public as an entranceway to the Court.
Rehnquist made the renovation of the Supreme Court building a priority during his final years as chief justice. Like many government building projects, a fairly modest restoration metastasized into an over-budget, much-delayed shambles, which may (or may not) be completed around 2009. And like much else in Washington after September 11, 2001, the design decisions about the renovation were made with obsessive attention to the issue of security. Most notably, the public entrance up the front steps—the defining feature of Gilbert’s concept for the structure—was deemed an undue risk. So a new entrance will be gouged into the side of the steps, near the base of the building. Visitors will still be allowed to depart down the front steps, and watch Gilbert’s vision recede behind them.
Whether the closing of the steps turns out to be a metaphor for deeper change at the Court will be determined in part by the justices but even more by the American people. More than any other influence, the Court has always reflected the political currents driving the broader society. In the early days of the Republic, when regional conflict predominated, that tension could be seen on the Court. Presidents felt obligated to replace, say, a California justice with another from the same state. (Later, of course, it passed almost without notice that the Court for many years had two justices, Rehnquist and O’Connor, from the relatively unpopulated state of Arizona.) In the nineteenth and twentieth centuries, the great tide of European immigration put religion near the center of politics, and the tradition of a “Catholic seat” and a “Jewish seat” arose. The fact that President Clinton drew little comment by appointing two Jews to the Court proved the passing of this era. Likewise, there is little significance that there are now five Catholic justices. The most important liberal in the Court’s history, William Brennan, was Catholic, too.
Today, the fundamental divisions in American society are not regional or religious but ideological. Roberts, Scalia, Kennedy, Thomas, and