The Roberts Court: The Struggle for the Constitution (3 page)

Rehnquist’s style as chief was dramatically different from the style of his predecessor—Warren Burger. Rehnquist was fair in his assigning of opinions to his colleagues, did not hold grudges, and had a self-deprecating and sometimes mischievous sense of humor. For example, his favorite Gilbert and Sullivan operetta,
Iolanthe
, was the inspiration for the four gold stripes that appeared on the sleeves of the black robe that he wore into court one morning and thereafter—stripes modeled after the costume worn by the Lord Chancellor in an
Iolanthe
production.
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“A plain speaker without airs or affectations, the Chief fostered a spirit of collegiality among the nine of us perhaps unparalleled in the Court’s history,” said Justice Ruth Bader Ginsburg in a statement issued after his death.

And that spirit was felt by more people than just the nine justices. Inside the Supreme Court’s majestic building, there is a strong sense of family among all who work there, from the police officers to the justices’ secretaries, many of whom spend their entire careers at the Court. While tourists crowd the lower level, inspecting justices’ portraits, the gift shop, and other exhibits, a quiet calmness pervades the carpeted upper
hallways, signaling the seriousness and respect with which the work is done within the justices’ chambers. Not surprisingly, then, nearly everyone inside the Court felt the impact of the first major changes there in eleven years.

But it also was a time of excitement and some anxiety, Ho and others recalled. Two new justices were coming on board. “Every year at the Court is historic, but this transition made it especially so,” said Ho.

No one knew at the time that this transition would not end with the new chief justice and the successor to O’Connor. In 2009 and 2010, two more of the Court’s members—David Souter and John Paul Stevens—retired. In just five short years, roughly half of the Supreme Court had changed.

Ask a justice what it means for the Court when one justice departs and a new one arrives and the most common answer is to repeat the late Justice Byron White’s well-worn comment that it is a new Court with each new justice. But what does that really mean?

“Old alliances, people you could rely on for certain positions in prior cases aren’t there anymore,” said a relaxed Justice Antonin Scalia in his chambers on a hot summer afternoon in 2011. “That’s always the principal effect of a new justice.”
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Scalia himself is a perfect example of what a change in the Court’s membership can mean to an individual justice and his or her work in certain areas of the law. Ask him of what decision he is proudest in his high court tenure and he will say his 2004 ruling in
Crawford v. Washington
, which involved the confrontation clause in the Sixth Amendment to the Constitution. That clause guarantees that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

In the
Crawford
case, Michael Crawford was accused of stabbing a man who, Crawford claimed, tried to rape his wife. During the jury trial, prosecutors played the wife’s tape-recorded statement to police in which she described the stabbing. Her statement conflicted with
Crawford’s defense. He had no opportunity for cross-examination and he argued that admitting the wife’s statement would violate his Sixth Amendment right to be confronted with the witnesses against him.

A 1980 Supreme Court decision, however, held that the Sixth Amendment right does not prohibit the admission of a statement by a witness who is not available if the statement has “adequate ‘indicia of reliability.’ ” The trial court found, and the later appellate court agreed, that the wife’s statement against Crawford was trustworthy. His conviction for assault was upheld.

The Supreme Court, in an opinion by Scalia, reversed. Scalia, a leading proponent of interpreting the Constitution according to its “original public meaning,” traced the Founding Fathers’ concept of the right to confront one’s accusers to English common law. He said the key question is whether the evidence the government seeks to introduce is testimonial; if it is testimonial, the defendant must be given an opportunity to cross-examine the person who made the statement or created the evidence.

The unanimous opinion overruled the 1980 decision, and during the next decade, the Court—and Scalia in particular—has been applying what is a surprisingly defendant-friendly view of the confrontation clause to a variety of circumstances in which the prosecution seeks to present testimonial evidence without the person who made the statement or created the evidence.

But the rulings in this area of the law stopped being unanimous as new questions arose about who must testify at trial in order to satisfy the confrontation right. Does the state laboratory analyst who prepared a certificate stating what drug was seized by police have to testify or is the certificate enough? And what about a statement to police by a wounded crime victim identifying who shot him when the victim later dies?

Scalia’s drive to restore the confrontation clause to its original meaning depended on his unlikely alliance with Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg as the rulings split 5–4. With
Stevens and Souter gone, Scalia’s success is fragile in the face of staunch disagreement by Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito Jr. While Justices Sonia Sotomayor and Elena Kagan have sometimes joined with the Scalia view, the strength of their commitment in this area is yet unknown. Neither is an “originalist” like Scalia, and perhaps not even “originalists for a day” in the context of the confrontation clause.

A transition also affects the dynamic within the justices’ private conference where they meet to discuss and vote on which cases to hear and to decide the cases already argued and ready for decision. On cases ready for decision, the chief justice speaks first, presenting the issue in the case and his vote. The discussion and vote then proceed around the rectangular conference table in order of seniority. With Stevens’s retirement, Scalia is the senior associate justice and he speaks after Roberts. The last justice to speak and vote—sometimes casting the decisive vote—is now Kagan, the most junior justice. Before Kagan, it was Sotomayor, for only one term, and before her, Alito held the junior justice seat.

The junior justice also takes notes on what happens in the conference and reports results to the clerk of the Court.

And a transition obviously affects relationships among the justices.
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“Just think of any other organization where you have twenty percent turnover,” described one justice. “It’s going to be different. You develop not only a relationship with the Court but individual relationships as well. I miss David Souter very, very much. Like anything else, you suddenly get a new member of the family and you try to get to know them, to establish a relationship with them, how they like to deal with colleagues, be it a close personal relationship or to maintain a more distant one. It adds a new element, and then you do it again a year later. It reshuffles the deck. I don’t know that I would go as far as Justice White’s comment.”

For Roberts, Sotomayor, and Kagan—all in their fifties—the probability of working together for twenty or more years can be daunting. “That’s a marriage, right?” said another justice. “And different people
have different ways of dealing with marriage. One way is whatever little things you don’t like, you may as well raise them because they’ll be annoying for how many years, or do you wait and only raise the big things? It’s an interesting dynamic.”

But on that first Monday in October 2005, the dynamic was just beginning to take shape.

Less than an hour before Roberts was to be formally invested in his new role, President George W. Bush, with White House counsel Harriet Miers at his side, announced that he was nominating Miers to the seat held by O’Connor. After the stunning announcement, Bush left the White House and headed to the Supreme Court for Roberts’s investiture. The Miers nomination would implode before the month’s end. Although Miers was criticized across the political spectrum for her close personal ties to Bush and for having an inadequate grasp of constitutional and statutory issues, the most conservative elements of the Republican Party who doubted her fealty to their legal causes ultimately torpedoed her nomination.
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But no one could have foreseen that outcome when at roughly 9:15 am, about an hour before the new term officially began, Roberts entered the courtroom in his black robe and took a seat in front of the press section, a row of wooden pews to the left of the bench as he faced it. He sat in the black leather-bound chair first used by Chief Justice John Marshall two centuries earlier as he waited to take the ceremonial oath of office before a courtroom packed with visiting friends, family, dignitaries, and officials. The other justices stepped out from behind the maroon velvet curtain that separates them from the courtroom and the formal investiture ceremony began.

Attorney General Alberto Gonzales, wearing a formal morning coat with tails, stepped to the lectern in front of the bench and presented and read Roberts’s commission—an ivory-colored document that President Bush had signed stating his intent to nominate Roberts as chief justice.

Roberts then walked up to the bench and faced Justice John Paul Stevens, the senior associate justice, who would administer the oath.
The contrast between the two men was striking: Roberts, youthful and serious; Stevens, relaxed and white-haired, his trademark bow tie poking out of his black robe. After taking the oath, Roberts sat down in the chair which last had been occupied by Rehnquist for nineteen of his thirty-three years on the Court. At age fifty, Roberts was likely to have just as long a tenure.

Stevens noted that flags outside of the building were flying at half-mast in honor of Rehnquist, whom he called “truly first among equals.” He then welcomed Roberts, saying the justices knew him well. Roberts had argued thirty-nine cases before the Court, as a former principal deputy solicitor general during the George H. W. Bush administration and as one of the most respected Supreme Court practitioners in private practice. The thirty-nine cases, added Stevens with a smile, “exceeds the combined experience of the rest of us.”

Roberts then formally closed the October 2004–05 term and opened the 2005–06 term. As is traditional, he welcomed attorneys sworn in as new members of the bar of the Supreme Court and announced arguments in the first case of the new term.

When the new chief justice assumed the center seat on the bench, the press and other observers that day agreed that his new role seemed to fit like a pair of old slippers. But it was not as easy as it seemed.

A protégé of Chief Justice William H. Rehnquist, Roberts had helped to bury his predecessor, who had lost his battle with thyroid cancer, just weeks before the opening of the new term. Roberts had been confirmed the Thursday before the first Monday in October, and he was superstitious enough about his confirmation chances that he had done nothing to prepare for the first cases to be argued—no reading of the briefs, nothing.

However, he was no stranger to the rhythm of the Court’s life. He had clerked for Rehnquist, and, as Stevens had told the audience that morning, Roberts had represented the United States in the Supreme Court as a principal deputy solicitor general, and had been one of the premier advocates before the Court as a lawyer in private practice.
Like many aspects of life at the Court, there was a well-known script to follow. Roberts knew it and used it to ease himself through a very difficult time.

Experience also had helped Roberts get through the political endurance test of his confirmation hearings. He had previously faced the Senate Judiciary Committee. President George W. Bush nominated him in 2001 for a seat on the District of Columbia federal appellate court, but his nomination was never voted on by the Democratic-controlled Senate Judiciary Committee. He had proven his partisan bona fides when, in the legal battles over the Florida presidential balloting in 2000, he played a role on the legal team defending candidate George W. Bush. And Bush and his top aides remembered him. Bush renominated him in 2003 and Roberts was confirmed by a voice vote in the Republican-controlled Senate.

In his memoir,
Decision Points
, Bush described Roberts as a “genuine man with a gentle soul.” The president wrote: “I believed Roberts would be a natural leader. I didn’t worry about him drifting away from his principles over time. He described his philosophy of judicial modesty with a baseball analogy that stuck with me: ‘A good judge is like an umpire—and no umpire thinks he is the most important person on the field.’ ”
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Bush’s concern about a justice “drifting” from his principles stemmed, he wrote, from his father’s disappointment with the appointment of Justice David Souter who, in his second term, began to move to the Court’s left and remained there until his retirement in 2009.

Roberts was one of five finalists, and not the top choice of some of Bush’s staff. White House counsel Harriet Miers preferred Samuel Alito Jr., a judge on the U.S. Court of Appeals for the Third Circuit. Attorney General Alberto Gonzales and Vice President Dick Cheney wanted Michael Luttig, a judge on the U.S. Court of Appeals for the Fourth Circuit. In the end, however, the “tiebreaker” question, according to Bush, was who would be the most effective leader on the Court, and the answer was, he believed, Roberts.

Hearings on Supreme Court nominations today appear to be more about the political agendas of the individual senators than about what is in the mind of the nominee. There was little in Roberts’s only forty-nine opinions as an appellate judge for skeptical Democrats on the Senate Judiciary Committee to use to show him as an ultra or radical conservative. But he had been a foot soldier in the Reagan administration, where he had worked as a young lawyer in the Department of Justice, first as a special assistant to Attorney General William French Smith, and afterward as associate counsel to President Reagan in the Office of White House Counsel. Roberts’s memos on a variety of controversial legal issues during those years as well as his legal briefs when he served as deputy solicitor general in the George H. W. Bush administration provided a paper trail for those who sought to derail his nomination or who, accepting that he was a conservative, honestly wondered, or feared, how far to the right he might lead the Court.