The Court: How ‘So Few Have So Quickly Changed So Much’

1.

At the end of his first Supreme Court term, in July 2006, Chief Justice John Roberts was interviewed by Jeffrey Rosen for a book on the Court. Roberts emphasized the aim of having the justices subordinate their individual preferences to an effort to achieve unanimity. “I think it’s bad, long-term,” he said,

if people identify the rule of law with how individual justices vote…. You do have to put [the justices] in a situation where they will appreciate, from their own point of view, having the Court acquire more legitimacy, credibility, that they will benefit from the shared commitment to unanimity…. People don’t want the Court to seem to be lurching around because of changes in personnel.

He added, Rosen wrote, that the example of Chief Justice John Marshall had taught him that personal trust in the chief justice’s lack of an ideological agenda was very important.^*

It is bewildering to read those words today. For in the Court’s subsequent term, the one that ended last June, the number of unanimous decisions dropped sharply. More than a third of the argued cases were decided by votes of 5–4, a modern record proportion. In many of the most important cases Chief Justice Roberts led the identical five-man majority, in which he was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. Eight of those decisions were radical departures from precedent. All moved toward a more conservative view of law and life.

What happened? In The Nine, Jeffrey Toobin gives us as thoughtful and convincing an answer as we are likely to get. It is a first-class book, making the Supreme Court and the forces that have moved it a fascinating story, and doing so without sacrificing accuracy. The subtitle made me think that I might be in for a gossipy work, suggesting that personal jealousies and conflicts shaped decisions. To the contrary, it is a serious book, whose fascination lies in its portrayal of how our fundamental law is affected by history, politics, and ideology. There are some behind-the-scenes stories, enjoyable ones; but the book’s achievement is its marshaling and analysis of matters that are not secret.

Toobin’s explanation of what happened in the most recent term of the Supreme Court goes back to the beginnings of the contemporary conservative political movement in the 1970s and 1980s: the movement that became the base of the Republican Party with its Christian evangelicals and advocates of low taxes. The most important spur was the 1973 Supreme Court decision in Roe v. Wade, establishing a constitutional right to abortion. To the “right-to-life” groups there was added the increasingly influential Federalist Society of law students and lawyers, founded in 1982, which urged conservative directions in the law. The common aims of the movement are summarized as follows by Toobin:

Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere.

To achieve these ends, conservatives focused on the Supreme Court. They sought to use Republican presidencies to remake the Court by appointments of justices who would overrule Roe and other decisions disliked by the Federalist Society, end affirmative action, and so on. For years they were frustrated. Justices Kennedy (appointed by Reagan), Sandra Day O’Connor (Reagan), and David Souter (George H.W. Bush) saved Roe in the 1992 opinion they wrote for the majority in Planned Parenthood v. Casey, a decision emphasizing the need to respect precedent for the sake of stability in the law and the Court’s legitimacy.

On the issue that moved them most deeply, abortion, conservatives were at odds with a substantial majority of Americans. A Quinnipiac University poll this year asked a sampling of registered voters, “Do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman’s right to an abortion?” In reply, 62 percent said they agreed, 32 percent disagreed.

But legal conservatives would not regard such public views as relevant. Their complaint is that the Supreme Court had no warrant in the language of the Constitution for finding a right to abortion. To an originalist like Justice Scalia, the fact that the framers of the Fourteenth Amendment did not intend to protect a right to abortion ended the matter. (To most members of the Court over many years, the amendment’s guarantees of liberty and equal protection were to be read as protecting aspects of privacy and other fundamental rights, and the amendment’s general language required judges to make judgments on its specific application.)

The conservatives did not give up in their initial frustration with Republican appointments to the Court. Toobin puts it well:

They organized more, mobilized more, and cared more about the Court than their liberal counterparts. And when their candidate [George W. Bush] won the presidency, these conservatives demanded more—a pair of justices who were precisely to their liking…. With admirable candor, and even greater passion, conservatives have invested in the Court to advance their goals for the country.

It seems to me a crucial insight of Toobin’s that liberals were not only outgunned on the issue of appointments to the Supreme Court—indeed, they really did not fight. Any voter who wanted to preserve the constitutional right to abortion or affirmative action should have known that their survival might depend on the result of the presidential elections in 2000 and 2004. But the Democratic candidates hardly raised the subject.

George W. Bush fit the conservative judicial campaign perfectly. As governor of Texas he indicated that judicial niceties were not at the top of his concerns. A study by the Chicago Tribune, published in June 2000, showed that he had refused clemency in all 131 death cases that had reached him. (Alberto Gonzales was legal counsel to Governor Bush and provided memoranda on clemency petitions.) Bush explained that the defendants had had “full access to a fair trial.” In a third of those cases the lawyer who represented the defendant at trial or on appeal had been or was later disbarred or otherwise sanctioned.

As a candidate in 2000 Bush said he would have no litmus test on court nominees but would put “competent” judges on the bench. Five years later, when Justice O’Connor retired and Chief Justice William Rehnquist died, giving Bush his first vacancies to fill on the Supreme Court, “he had a very different agenda for his nominees,” Toobin says:

The messianic nature of his presidency—Bush’s conception of his time in office as a moment of dramatic change for the world—affected his judicial nominations as much as it did his decisions on the Middle East. Through a combination of the staff he selected, the political strategy underlying his reelection, and his own personal evolution, Bush now sought transformative appointees, justices who would move the Court sharply and immediately to the right.

How sharp and swift the move to the right was came as a surprise to most observers of the Supreme Court. The eight dramatic departures from precedent came to a climax on the last day of the term, June 28, 2007. Justice Stephen Breyer, usually a cheerful optimist, win or lose, spoke from the bench for an extraordinary twenty-seven minutes in summarizing his dissent from the decision finding unconstitutional plans adopted by Seattle and Louisville to keep their schools from sliding back into de facto segregation. Then Breyer added a comment that was not in his written opinion: “It is not often in law that so few have so quickly changed so much.”

Chief Justice Roberts wrote the prevailing opinion in the school cases. He took the view long argued by legal conservatives that any use of race in pupil assignments, however minuscule, however benign its purpose, violates the ruling in Brown v. Board of Education that racial segregation in schools violates the Equal Protection Clause of the Fourteenth Amendment.

The originalism favored by many conservative legal thinkers should arguably work against the result reached by Chief Justice Roberts. Congress after the Civil War created the Freedmen’s Bureau and took other steps to help the newly emancipated black Americans. And it approved the Fourteenth Amendment to make sure that the legislation it was passing for the benefit of the former slaves would have legal support.

Just four years ago the Court upheld the limited use of race in admissions to the University of Michigan Law School. The decision, in Grutter v. Bollinger, was by a vote of 5–4, with Justice O’Connor making the difference and writing the opinion of the Court. Notwithstanding the narrow majority, it was thought at the time to resolve the issue of affirmative action for years to come. O’Connor said in her opinion that the justification for using race in the interest of a diverse student body should no longer be necessary in another twenty-five years.

Roberts did not say he was overruling the Grutter decision. But the logic of his opinion in the two school cases seems impossible to square with the majority’s view of diversity as a constitutionally permissible objective in education. Will it continue to be lawful for the military and naval academies to consider race in admitting students? An influential amicus brief in the Grutter case, filed by retired military officers, said that not doing so would greatly reduce the number of minority officers and damage the military services, with their large numbers of minorities.

Two of the eight critical 5–4 decisions openly overturned what had been settled law. The first, Leegin Creative Leather Products v. PSKS, rejected an antitrust rule that had been in effect since a 1911 Supreme Court decision: that price-fixing agreements are per se violations of the law. The majority, in an opinion by Kennedy, said that price-fixing must be weighed case by case, to decide whether its effects in the particular circumstances are likely to be anticompetitive.

The second candid overruling was a decision (Bowles v. Russell) that a prisoner lost his right to appeal when he followed the erroneous direction of a federal judge on how much time he had to file his appeal. The judge said he had seventeen days, but the appellate rules allowed only fourteen. The majority opinion, by Justice Thomas, overruled earlier cases holding that the appeal time limit could be waived in “unique circumstances.” Justice Souter, dissenting, wrote with unusual emotion: “It is intolerable for the judicial system to treat people this way.”

In the other six critical decisions the majority used what might be called covert overruling. One was the Seattle and Louisville school case. Without formally rejecting the precedent holding that some attention may be paid to race in order to secure diverse student bodies, the Court made it hard to imagine how any such plan could now be upheld.

Then there was the abortion case, Gonzales v. Carhart. In 2000 a 5–4 majority, with O’Connor casting the key vote, found unconstitutional under Roe v. Wade a Nebraska law prohibiting what anti-abortionists call partial birth abortion. Now, with Alito replacing O’Connor, a 5–4 majority found valid a virtually identical federal statute. Justice Kennedy’s opinion for the Court included the gratuitous comment,

While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.

Toobin remarks that “no scientifically respectable support existed for this patronizing notion.” Especially significant was the fact that the federal law upheld by the decision had no exception to protect the woman’s health: an exception that Justice O’Connor had said was a necessity in any ban on an abortion procedure.

Other cases covertly overruled earlier decisions sustaining part of the McCain–Feingold campaign finance law and recognizing the standing of members of the public to challenge measures that assist religious activities. Another decision defecting from precedent held that reviewing courts must pay deference to the decision of a trial judge removing a juror from a capital trial because he had some concern about the death penalty. Still another decision eviscerated the right of employees to seek back pay for gender discrimination unless they complained immediately after beginning their employment, though they were not aware then that they were being victimized.

In each of these cases the new majority pointed to particular reasons for the result it reached. But nobody could miss the overall trend: hostile to abortion, affirmative action, the rights of criminal defendants, measures against gender discrimination, limits on campaign finance. I am reluctant to characterize judicial decisions in a sweeping way, because they usually depend so much on distinctive facts and fixed features in the law. But it is not unfair to say that, in sum, most of the critical decisions of the Supreme Court’s October 2006 term had the ring of a conservative manifesto.

2.

Stare decisis, Latin for let the decision stand, is an essential ingredient of judicial law. In the Anglo-American legal system, judges build on precedent from case to case. If there were no respect for the past, if every decision were a morn made new, the law would be intolerably unstable. Private action taken in reliance on judicial definitions of the law would become impossibly unpredictable.

A good example of the reasons for stare decisis, and its hold on the judicial mind, is the 1966 Supreme Court decision in Miranda v. Arizona. The opinion, by Chief Justice Earl Warren, laid down detailed rules for the handling of criminal suspects taken into custody—including the famous Miranda warning of their right to counsel and the right to remain silent.

Miranda was attacked by legal conservatives of that day as legislative, without foundation in the Constitution’s general call for “due process of law.” Justice William Rehnquist was particularly forceful in his denunciations. But when a case came along in 1999 that offered an opportunity to overrule Miranda, Rehnquist wrote the opinion for a 7–2 Court refusing to do so. “Miranda has become embedded in routine police practice,” he said,

to the point where the warnings have become part of our national culture. Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.

But stare decisis is not an iron rule in constitutional cases. Justice Louis D. Brandeis wrote:

In most matters it is more important that the applicable rule of law be settled than that it be settled right…. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning.

When the Court does change its mind, it usually moves in tandem with public feeling, present or immanent. Brown v. Board of Education is an example. In 1896, in Plessy v. Ferguson, the Court upheld state-imposed segregation by race. Justice Henry Brown said that segregation did not stamp the segregated race with a badge of inferiority unless “the colored race chooses to put that construction upon it.” After the Nazis made Jews wear yellow stars, nobody could seriously doubt that separation was, and was meant to be, a badge of inferiority. Most Americans had not focused on the brutalities of segregation—not yet—but a Supreme Court decision in 1954 holding that racial separation gave blacks “the equal protection of the laws” demanded by the Constitution could not long have survived. Perceived reality had changed and was changing.

Or consider the 2003 decision, in Lawrence v. Texas, that states could not punish private homosexual activity as a crime. In 1986 the Court had decided the other way in a case from Georgia. Seventeen years later attitudes had changed, on the Court and in the country. Six justices, Toobin puts it, “believed that the time had come to recognize that it was an abomination to allow criminal punishment of consensual homosexual sex.”

What was different about the overrulings of previous decisions during the last Supreme Court term was their number, and the fact that they so quickly and obviously reflected the changes in the Court’s membership. It made the Court seem to be doing exactly what Chief Justice Roberts had warned against in his 2006 interview: “lurching around because of changes in personnel.” To put it another way, it made the nine look like politicians.

It has always been something of an anomaly that a republic trusted a bench of appointed judges to define its fundamental law. I believe strongly that it has been an essential feature of the American system, without which a huge country with deep internal conflicts would not have survived in its present form. Since World War II, many nations—Germany, South Africa, and Israel among them—have acquired similar forms of judicially enforced constitutional democracy.

Historically, Americans have shown enormous respect for the Supreme Court even when disagreeing with its decisions. Franklin Roosevelt found that out in 1937, when he tried to pack the Court with up to six additional members after the justices found unconstitutional New Deal measures to fight the Depression. Scholars mocked the Court’s decisions, and they had no great popular appeal; but the public roundly rejected FDR’s plan.

In recent decades the Supreme Court thrust itself into a highly political role in one case, Bush v. Gore, in which a 5–4 majority awarded the presidential election to George W. Bush. Toobin devotes thirty-seven pages to the episode, and he does a masterful job. He adds a few unknown touches on what went on inside the Court, but the power of his account lies in its laying out of the facts and his analysis.

With Bush leading by a few hundred votes in Florida and a recount sought by Gore underway in key counties, the five justices—Rehnquist, Scalia, O’Connor, Kennedy, and Thomas—issued a stay that stopped the counting. Scalia, in an opinion of his own, explained that the recount threatened “irreparable harm”—the necessary legal ground for issuing a stay—to Bush and the country “by casting a cloud upon what he claims to be the legitimacy of his election.” In all other circumstances, Toobin rightly comments, something as vague as “casting a cloud” would not be regarded as a genuine legal harm. Scalia, Toobin writes,

was looking at the election entirely through Bush’s eyes; by his own words, the justice was clearly more concerned about producing a clean victory for the Republican than about determining the will of Florida’s voters.

That was true of the final decision, too. The Court found a denial of the constitutional principle of equal protection of the laws in the fact that counties were recounting votes in different ways. It was a decision that defied reason, since plainly the most equitable way to determine the Florida vote accurately was to recount it everywhere, not to stop where it was being recounted. It was also a decision without legal precedent. Justice Kennedy in his opinion said the legal reasoning was “limited to the present circumstances.” In other words, as another justice said years ago, the decision was like a restricted railroad ticket, “good for this day and this train only.”

In my judgment the Court did not even have legal jurisdiction to consider the case, because there was no federal legal issue. The Constitution leaves the counting of votes to the states, and a statute commits challenges finally to the judgment of Congress. Toobin describes the Court’s conduct as “inept and unsavory” and says the justices displayed “vanity, overconfidence, impatience, arrogance, and simple political partisanship.”

Was it pure politics? The justices may have reasoned to themselves, and believed, that they were acting in the national interest—to protect the country from being leaderless during a long election contest. But would they have come to the same conclusion if Al Gore had led by a few hundred votes and had sued to stop a Bush-sought recount? I doubt it.

The country quietly accepted the decision in Bush v. Gore, liking it or not. At the time I thought that was right. We have to be able to look somewhere for finality, and in our system that is the Supreme Court. Today I am not quite so sure. More vocal protest against a lawless decision might have been better for the country and the Court.

Toobin offers one human insight into the case that was new to me. He says that Justice Souter was so saddened by the Court’s behavior in Bush v. Gore that he thought of resigning—seriously, for many months. I do not know whether that is true, but it is possible. Souter, Toobin writes,

came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

An irony in the case is the role of Justice O’Connor. She was an elected Republican officeholder when appointed to the Supreme Court, and she continued to identify personally (not legally) with the party. But at least by his second term, Toobin says, she found George W. Bush “arrogant, lawless, incompetent, and extreme.” Some commentators have assumed that Toobin had private conversations with O’Connor. I do not think so; he could have gathered those conclusions from speaking to others.

What can we expect of the Supreme Court now? Much will depend, as before, on the vote of Justice Kennedy. Last term he was in the majority on every one of the twenty-four cases decided by a vote of 5–4. His vote is not always predictable, as for example in the 1992 decision that saved Roe v. Wade, Planned Parenthood v. Casey. Kennedy’s vote will be crucial in the case to be heard by the Court on the president’s power to deal with the Guantánamo detainees as he wishes. But in general I see no reason to expect any early change from the rightward trend of the last term.

The nagging question is the position of Chief Justice Roberts. He is presiding over a Court whose sudden and radical changes have made the public focus on the ways in which individual justices vote—which in his 2006 interview he deplored—and put in question the legitimacy and credibility that he said he wanted to gain by more unanimity.

Was he serious in those 2006 comments on the benefits of a “shared commitment to unanimity?” Did he mean them? Were commentators who took his statements at face value unduly credulous? The test of the pudding is in the eating. In case after case since then he might have brought the justices together, and did not. So the effort at unanimity cannot be a high priority for him.

Judging by what he has done on the Court, John Roberts is a committed legal conservative: not an originalist like Scalia or Thomas but someone determined to read the law and the Constitution to achieve conservative ends. But why would he be in such a hurry? One possible answer is that, given the makeup of the Court, he sees an opening right now to move the law toward what the conservative movement wants, in matters like abortion and affirmative action, and you never know whether that opening will last.

There is another possible explanation for the chief justice’s single-mindedness. He was a litigator in his legal life before he went on the bench, someone who (unlike most lawyers) argued cases in court. He was an exceptionally brilliant one. Litigators have to have a high level of competitiveness. They want to win. Everything they hear and learn is devoted to building their side of a case. They do not have the experience of an officeholder or legislator, who must listen to many viewpoints, or the reflectiveness of a scholar.

In the end the Supreme Court is what presidents make it by their appointments. The framers intended that: presidential appointment was the link of a remote institution to political democracy.

“Presidents pick justices to extend their legacies,” Toobin says. “By this standard, George W. Bush chose wisely.” Future presidents can include in their legacies a concern to rebuild the legal principles on which the Court based its decisions in such cases as Lawrence v. Texas and Grutter v. Bollinger. If we want a different Supreme Court, we have to pay attention to that issue in electing a president.