Free The Oath by Jeffrey Toobin Page B

citizens.”
    By the time Katyal argued the
Hamdan
case before the eight sitting justices on March 28, 2006, the Iraq War had deteriorated further and the political climate surrounding the issue of Guantánamo had been transformed. In
Hamdi
, the Court had rejected the notion that the detainees were not entitled to any due process at all. In response to that initial defeat at the Court, the Bush administration had set up a system of military commissions that gave the detainees the right to a kind of truncated trial. The
Hamdan
case was a challenge to the adequacy of these hearings.
    The case served also as a useful introduction to the Roberts Supreme Court. Scalia, Thomas, and Alito were sure votes to uphold the president’s policy and Roberts’s ruling in the D.C. Circuit. Stevens, Souter, Ginsburg, and Breyer, on the other hand, would definitely vote to strike down the new rules. In this case—and so many that followed—the verdict would be rendered by Anthony Kennedy.
    Kennedy was weeks away from turning seventy years old. He was Ronald Reagan’s third choice to fill the seat vacated by Lewis Powell in 1987. (Bork had been voted down by the Senate, 58 to 42, and Douglas Ginsburg, a judge on the D.C. Circuit, had withdrawn following news reports that he had smoked marijuana as a young law professor at Harvard.) Since his appointment, Kennedy’s hair had receded and whitened, but in all other respects he had thrived on the Court. Age had not withered his sinewy six-foot frame. When Kennedy began to speak, he often hesitated, almost stuttered, in what appeared to be an attempt to show humility, but he invariably found the right cruising speed, especially in front of an audience. He spoke (as he wrote) ingrand and vague phrases—about “the poetry of the law,” “the defense of liberty,” and “dignity,” his favorite word. To anyone who asked, Kennedy insisted that he did not enjoy his role as the crucial vote on the Court. Few believed him.
    All the justices (except Souter and, in recent years, Stevens) traveled the world. It was one of the perks of a job that paid considerably less than their law clerks made as soon as they entered private practice. (The chief justice makes $223,500, the associate justices $213,900.) They all received multiple invitations to attend conferences or do some light teaching all over the world. Thomas enjoyed the New York University villa in Italy. Scalia and Ginsburg traded reviews of opera festivals in Europe. Breyer visited his wife’s family in England and friends in France. (He speaks fluent French.) Roberts himself was teaching in London when Bush nominated him for the Court.
    Few justices reveled in the international scene as much as Kennedy. There was some irony in this distinction because Kennedy appeared to be, at the time of his appointment, the most provincial of men. He grew up in Sacramento and still lived in the house where he was raised. He had gone to Stanford, then to Harvard Law School, but soon returned to his hometown to take over his father’s firm and teach part-time at the local law school, McGeorge.
    In fact, during all those years, Kennedy nursed a considerable wanderlust. When he was still a teenager, his uncle, an oil driller, hired him to work on rigs in Louisiana and Canada. While he was in college, he studied for several months at the London School of Economics. (Later, he would recall with affection how much the range of student views differed from those at home. “You had to sit in the room according to your place on the ideological spectrum, and, to give you an idea of what it was like, the Communists—the Communists!—were in the middle!”) His father’s law practice focused heavily on lobbying California state government, especially for the liquor industry. But when young Tony joined the family firm he took it in a more cosmopolitan direction; for instance, he helped create the legal basis for American companies to open factories, known as