The Roberts Court: The Struggle for the Constitution (2 page)

As if sensing the coming political tornado embodied by the health care challenge, Justice Ruth Bader Ginsburg, in an interview in the summer of 2011, said: “What I care most about, and I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”
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The Supreme Court, however, sits atop a political branch of government, one of three branches whose powers and duties are enshrined in the Constitution. Federal judges and justices get their jobs through a political process: political recommendations to the president, appointment by the president, and confirmation by the Senate. Ginsburg’s real concern and fervent hope were that the Court not be considered a partisan institution.

“The Court survived one great danger—
Bush v. Gore
,” said one justice, referring to charges that politics drove the outcome in the 2000 ruling by the Rehnquist Court that decided the presidential election. “At least to me that seemed highly political.”

However,
Bush v. Gore
triggered an enduring cynicism about the Court among many Americans. That cynicism deepened with the Roberts Court’s 2010 decision in
Citizens United v. Federal Election Commission
, which eliminated legal bans on the use of general treasury funds by corporations and unions for making independent expenditures in elections. “It’s the most hated of any recent Supreme Court decision, even more than
Bush v. Gore
,” said the lawyer who won both cases, Theodore Olson.
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And this cynicism was reflected in a number of public opinion polls taken shortly before the 2012 health care ruling in which a majority of voters said politics would influence the outcome of the challenge to the new law.

Whether the justices are practicing law or politics in their most controversial cases is a profoundly difficult question, but one that scholars and others have tried to define, measure, or answer in various ways. “Judicial activism” is by now an overused and mostly unsatisfactory way of answering the question and implying a political agenda. For many people, a charge of judicial activism today has come to mean a decision with which those making the charge disagree.

Yale Law School’s Jack Balkin and others have written about “high politics” and “low politics” on the Supreme Court.

“It is ok for judges and Justices to have constitutional politics, to have larger visions of what the Constitution means or should mean and what
rights Americans have or should have,” explains Balkin. “That is what I mean by ‘high politics,’ and there’s nothing wrong with judges having such views.” Judges pursue “high politics,” he adds, through their legal arguments.
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On the other hand, judges should not pursue “low politics”—the manipulation of doctrine to give an advantage or power to a particular group or political party. For Balkin, the decision in
Bush v. Gore
was “low politics,” and others would point to the
Citizens United
decision.

The justices themselves vehemently deny that politics, especially of the “low” kind, ever enters their deliberations.

“I don’t think the Court is political at all,” Justice Scalia said during a television interview a month after the health care decision. “People say that because at least in the recent couple of years since John Paul Stevens and David Souter have left the Court, the breakout is often 5 to 4, with 5 [Republican-appointed judges] and 4 by Democrats on the other side. Why should they be surprised that after assiduously trying to get people with these philosophies, [presidents] end up with people with these philosophies?”
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Politics is what happens “across the street,” Justice Clarence Thomas has said, referring to Congress, which meets across the street from the U.S. Supreme Court Building.

Another justice, speaking only on background, explained, “I think when Justice
X
sits down and starts working on a case, that justice doesn’t think, ‘This is the result I want to reach because I’m a [liberal Democrat or a conservative Republican].’ That justice does what I do: reads the briefs, reads the statute, reads the cases. And even if nine times out of ten looking back you see it in a certain way, we all know that’s just not how the process works.”

Justice Stephen Breyer too has chafed at what he considers to be the media’s portrayal of the justices at times as “junior league politicians.” Breyer has written that “[p]olitics in our decision-making process does not exist. By politics, I mean . . . will it help certain individuals be elected? Personal ideology or philosophy is a different matter. Judges
have had different life experiences and different kinds of training, and they come from different backgrounds. Judges appointed by different presidents of different political parties may have different views about the interpretation of the law and its relation to the world.”
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When the Roberts Court split 5–4 along ideological lines in the four cases at the center of this book, or when it divides that way in any of its cases, the media covering the Court, often short of time and space, may find it simpler to speak in terms of the conservative or liberal wings of the Court in explaining those votes. However, as the four decisions here show, those wings or blocks are not monolithic.

In the Seattle-Louisville school cases, Justice Anthony Kennedy refused to join Roberts, Scalia, Samuel Alito Jr., and Thomas in their view that the Constitution is color-blind even though he agreed that the school plans were unconstitutional. A color-blind Constitution, said Kennedy, is still an aspiration.

Although they divided 5–4 in
Citizens United
in striking down the ban on the use of treasury funds for corporate independent expenditures, eight justices agreed that the federal law’s reporting and disclosure requirements on those expenditures were constitutional. Thomas did not agree.

And four conservative justices in the health care ruling—Kennedy, Scalia, Thomas, and Alito—disagreed with Roberts that the penalty for not having minimum health insurance was a constitutional tax.

The Court’s liberal justices also do not always stand as one. Justices Breyer and Elena Kagan disagreed with Ginsburg and Sonia Sotomayor on the constitutionality of the health care law’s expansion of Medicaid for the poor and disabled. Ginsburg and Breyer part company with each other over Scalia’s view of the Sixth Amendment’s confrontation clause and on certain sentencing issues.

“It’s always troubling, and I know it’s an easy way to get a hook on things, to say that there are however many conservatives or liberals on one side or another, but that’s not the way we approach any individual
case,” insisted another justice. “The results are what the results are, but this idea that there’s one bloc or two blocs is just not the way we do it.”

Each of the justices is the product of his or her experiences in life and in law, and each brings those experiences to bear when deciding cases. The justices’ personal biases are constrained by certain doctrines, such as
stare decisis
(respect for precedents), and some justices adhere to those doctrines more strongly than others do.

“Justice Scalia has a fixed view of what is good for the country and of the Constitution,” said one justice, adding, “I have my own view.”

So what is the public to make of the Roberts Court and its signature decisions? Few who closely watch the Court doubt that it is the most conservative Supreme Court in decades, despite the ruling upholding the health care reform law. It is more conservative than its predecessor, the Rehnquist Court, primarily because Samuel Alito Jr. replaced Sandra Day O’Connor, formerly the center of the Court, and Alito is more conservative than O’Connor was. And because Alito replaced O’Connor, Anthony Kennedy moved into the current center of the Court—its crucial swing vote—and he votes more often with his conservative colleagues in cases closely dividing the Court than O’Connor did.

However, that is the easiest way to tell the story of the Roberts Court and the ongoing struggle for the Constitution. There is a more difficult way.

In a recent public conversation about civics and the Supreme Court, retired Justice David Souter spoke of the range of language in the Constitution. Some language is specific, such as the age of eligibility to be president is thirty-five years old. Other language, he said, has “extraordinary breadth,” for example, “unreasonable searches and seizures,” or even “freedom of speech.”

Those general terms, he said, are best understood as a “listing or a menu of approved values, the application of which has got to be worked out over time.” A great deal of what the Supreme Court does is to attempt to figure out the application of those values.

Sometimes the values compete. In
Citizens United
, he said, the liberty model of free expression says corporations can spend all the money they want independent of candidates. However, an equality approach would say there must be some limitation on corporations so they do not drown out other speech. The Constitution does not contain a provision telling the justices how to resolve the tension between those values.

How then does the public judge the justices? The public, said Souter, has to read the Court’s decisions.

“A principled decision is one in which the Court candidly and convincingly explains why this principle prevailed over that principle,” he said. “It is the choice of principles that is the tough part. The public judgment has got to be a judgment on whether they believe what the Court says, whether they believe what the Court says is convincing in making that choice between principles.”
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In the four rulings on schools and racial diversity, gun rights, campaign finance, and health care reform, the justices confront and choose between principles amidst a modern-day tsunami of special interests trying to sway the final choice. In the end, however, the public’s judgment remains the key to the Court’s most important and only institutional power: its legitimacy in the eyes of the American people.

“What kind of justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly?”

—Senator Charles Schumer (D-NY), 2005

O
n October 3, 2005—the first Monday in October of that year—the Roberts Court, named after its newly sworn chief justice, John Roberts Jr., officially began its first Supreme Court term and a new era in the Court’s history. But that was not the true beginning of the Roberts Court.

The real start of the Roberts Court would take place some eight months later in a conference room just off of the chief justice’s chambers. A vote would be cast to hear and decide two cases exposing one of the deepest and most enduring divides among the justices. The cases concerned a question of race. They also would cast doubt on the new chief justice’s public commitment during his Senate confirmation hearings to so-called minimalism—narrow decision making—and respect for the Court’s prior decisions.

On that warm October day in 2005, the Roberts Court was not yet fully formed. Earlier that summer, Justice Sandra Day O’Connor had announced her plans to leave the Court as soon as her successor was confirmed. By the time the first Monday in October arrived, she was still on the Court awaiting the nomination and confirmation of that successor. O’Connor would keep her seat for nearly four more months.

It was a period of major transition for the Court. Roberts was the first new justice in eleven years—the longest time in which the Court had gone without a change in modern history. Roberts’s predecessor, William H. Rehnquist, had died and was buried just three weeks before the new chief was sworn into office. And although O’Connor’s departure date was unknown, everyone inside the Court keenly felt the impending end to her presence in the building and to her remarkable contribution to the Court’s work.

“These were not only two, very long tenured justices; they were beloved,” said James Ho, former clerk to Justice Clarence Thomas in the 2005–06 term. “Rehnquist’s passing—it’s not possible to overstate the emotional impact that had on the Court. And O’Connor, she was not just a Court institution but an American institution because of her biography. When you lose two people like that, it has a big impact.”
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