The Anti-Court Court

1.

The Roberts Court, which just concluded its ninth term, was officially launched on September 29, 2005, when Justice John Paul Stevens administered the oath to the newly confirmed chief justice, John Roberts. In a more significant sense, however, the Roberts Court’s birth—or at least conception—should be dated five years earlier, to December 12, 2000. That’s the day the Supreme Court decided Bush v. Gore, ending a recount of the too-close-to-call Florida presidential vote, and ensuring that George W. Bush would become president with half a million fewer popular votes than Al Gore. The Court’s five conservatives—William Rehnquist, Anthony Kennedy, Antonin Scalia, Sandra Day O’Connor, and Clarence Thomas—relied on a wholly unprecedented theory of the Constitution’s guarantee of “equal protection of the laws,” which they announced would apply this one time only, to block the Florida recount, and President Bush took office.

Bush was reelected in 2004, this time without needing the Supreme Court’s help, and that meant that when Justice O’Connor announced her retirement and Chief Justice Rehnquist died in office in 2005, President Bush, not Al Gore or a successor, had the privilege of appointing two new justices and shaping the Court for years to come. Had a Democratic president been able to replace Rehnquist and O’Connor, constitutional law today would be dramatically different. Affirmative action would be on firm constitutional ground. The Voting Rights Act would remain in place. The Second Amendment would protect only the state’s authority to raise militias, not private individuals’ right to own guns. Women’s right to terminate a pregnancy would be robustly protected. The validity of Obamacare would never have been in doubt. Consumers and employees would be able to challenge abusive corporate action in class action lawsuits. And Citizens United v. Federal Election Commission, which struck down regulations on corporate political campaign expenditures and called into question a range of campaign spending rules, would have come out the other way.

But it was not to be. As chief justice, Bush selected Roberts, and as the new associate justice, Samuel Alito. Both were tried-and-true conservatives who had established their reputations in the Reagan administration Justice Department and gone on to serve as federal appellate court judges. Because they replaced two conservative justices, the shift in the Court’s makeup was modest. Roberts was an even trade politically for Rehnquist, for whom he had once served as a law clerk. Alito was much more conservative than O’Connor, who had played the part of swing justice on the Rehnquist Court. But with only four consistent conservatives, the swing justice still controlled outcomes. The principal difference between the Rehnquist and Roberts courts was that Justice Kennedy assumed O’Connor’s role as the Court’s swing vote. Since he is somewhat more conservative than O’Connor, the Court tilted slightly to the right, but only slightly.

President Barack Obama also had the opportunity to fill two vacancies on the Court. He appointed Sonia Sotomayor to replace David Souter, and Elena Kagan to take the seat of John Paul Stevens. Souter and Stevens had both been appointed by Republicans, but they typically sided with the liberals on controversial cases, so their replacement by Sotomayor and Kagan also did not fundamentally change the Court’s political makeup.

As a result, the Roberts Court is not radically different from its predecessor. As on the Rehnquist Court, the conservatives hold the majority, but their advantage is razor-thin. Many of the most politically heated cases are decided by 5–4 votes. And therefore, no matter who is chief justice, the real power to decide close cases is held by the least conservative of the conservative justices. The center defines the Court, not the chief justice. And while the Roberts Court includes four of the most deeply conservative justices ever to serve on the Supreme Court—Roberts, Alito, Scalia, and Thomas—they cannot prevail unless they can appeal to Kennedy (or, very rarely, one of the four liberal justices) for a fifth vote.

2.

Given the relative stability of the conservative–liberal divide on the Court over the past three decades, it can be a challenge to say something new about the Roberts Court. Two eminent Harvard constitutional law professors are the latest to give it a try: Laurence Tribe (with former student Joshua Matz) and Mark Tushnet. Their books, Uncertain Justice and In the Balance, respectively, both provide an engaging and accessible history of the Court’s major decisions. The authors proceed by the “case method,” almost as if they are at the front of their constitutional law classes.

As the best teachers often do, both books expertly convey what is difficult about the legal questions presented. They show that the reason so many cases are decided 5–4 is not so much that the justices are partisan or political in any simple sense, but that the cases pose genuinely close questions of competing values on which conservatives and liberals often disagree—such as the role of state and federal power, how best to pursue equality, the appropriate methods for interpreting the Constitution, and the place of courts in a constitutional democracy.

But in part because the Court is so closely divided, and because it has been this way for such a long time, the authors’ respective conclusions can feel disappointing. Tribe and Matz’s theme, such as it is, is uncertainty. They express skepticism about “all of the leading deep explanations” of the Supreme Court, contending that such explanations “often overstate the determinate role of politics, principles, or personality and thereby squeeze out crucial elements of uncertainty and contingency.”

Thus, not atypically, their chapter on the decisions of the Roberts Court about freedom of speech concludes, unhelpfully: “The First Amendment beats on, a sometimes skipperless boat drifting deeper into uncertain waters.” There is much to be said for avoiding reductive accounts, but one hopes for more of an analytic conclusion than “uncertainty.” Still, for a liberal assessment of a conservative Court, “uncertainty” may be the best one can do. As Tribe and Matz put it, “by charting uncertainty, we reveal possibility.”

Mark Tushnet agrees with Tribe and Matz that the Roberts Court’s decisions are not determined by any kind of simple partisan politics. He argues that results are driven by a complex mix of law and “a politics of principle, of competing visions about the best way to arrange our government so that it protects our liberty and our security.” As he puts it:

We have to take legal arguments seriously, and shouldn’t simplistically blame “politics” for justices’ decisions. We shouldn’t take legal arguments too seriously, though. Judges use arguments tactically, as part of a larger campaign, and we need to focus on the larger strategy the tactics serve. The overall story is about conservatism and liberalism today.

His conclusion: the Court is closely balanced, and if a Democratic president replaces a conservative justice, the balance will tip. True, but hardly news.

Tribe and Tushnet are among this nation’s most sophisticated thinkers about constitutional law, so the problem may well be the task they set for themselves—trying to say something novel about a Court that has been fairly stable in a kind of middle-of-the-road conservative way for more than a generation. They are right that simple partisan politics cannot explain the Court’s results. The Roberts Court has not infrequently issued important decisions reaching liberal outcomes.

It has affirmed the rights of married gays and lesbians to receive federal benefits, of prisoners to be free of overcrowding, of foreign detainees at Guantánamo to judicial review, and of criminal defendants to have effective assistance of counsel in negotiations over guilty pleas. The Court upheld Obamacare, and struck down Arizona’s anti-immigrant law that would have imposed onerous penalties on foreign nationals here who overstayed their visas.

It has protected the rights of unpopular speakers, invalidating laws prohibiting the depiction of animal cruelty, the sale of violent video games to minors, and lying about one’s military honors. This past term alone, the Court required police to obtain warrants to search cell phones of arrestees, affirmed the Environmental Protection Agency’s authority to regulate greenhouse gas emissions from power plants, and struck down a Florida rule that permitted execution of intellectually disabled defendants with IQs over 70.

But the Roberts Court has also, of course, reached plenty of conservative results. It has been especially skeptical about race-conscious efforts to achieve integrated schools. It upheld a ban on “partial birth abortion” despite the absence of an exception for abortions necessary for the health of the mother, an exception that the Court had previously consistently required. It has invalidated a host of campaign finance regulations, most famously allowing unlimited expenditures by corporations in Citizens United.

It recognized an individual right to bear arms—contradicting a view of the Second Amendment held by all of the lower federal courts. It has denied the free speech claims of prisoners to receive newspapers and books, of students to speak out in favor of drugs, and of human rights activists to advocate for peace and human rights in conjunction with organizations the United States has deemed “terrorist.” And most dramatically, of course, the Court came one vote away from striking down Obamacare in its entirety.

In its most recent session, the Court deemed unconstitutional a public sector union’s authority to collect fees from those it represents, invalidated a nearly forty-year-old limit on campaign contributions, and permitted Christian prayer at official town meetings. In the term’s final and most controversial decision, the Court ruled that Hobby Lobby, a privately held corporation, had a religious right to be exempt from a federal requirement that employer-based insurance plans cover the cost of contraception.

The specific result in the Hobby Lobby case was fairly narrow, requiring only that the government extend to corporations with genuine religious objections an already existing accommodation that ensures women’s access to cost-free contraception. But some of the reasoning in the majority opinion could open the door to much broader religious exemptions from other generally applicable laws. The decision’s ultimate implications will likely turn, once again, on Justice Kennedy, who joined the majority but also wrote a narrower concurring opinion.^*

No simple grid can make sense of these disparate results. Some commentators see tactical political gamesmanship at play behind every justice’s vote. But as Tushnet demonstrates, it is usually impossible to know what the future political implications of a decision will be. Had the Court struck down Obamacare, would it have energized the Republicans or the Democrats? Might it have further alienated Hispanics and the poor from the Republican Party? And what effect would that have on the next presidential election, on the politics of health care long-term, or on future appointments to the Court? As Tushnet repeatedly says, “who knows?”

So even if a justice were inclined to be Machiavellian about it, what would he do? It’s much more likely that the justices are guided by their best understandings of the law, filtered by their basic legal perspectives, rather than by short-term partisan or political interest. And on a closely divided Court, the law, as shifting majorities understand it, will generate a mix of conservative and liberal outcomes, as often as not determined by the most centrist justice.

3.

The complex dynamics of Supreme Court decision-making, in which a multimember body must reach majority agreement on what the law means in any particular case, is underscored by Bruce Allen Murphy’s biography of Justice Antonin Scalia. Scalia, who has served on both the Rehnquist and Roberts Courts, is extremely conservative, extraordinarily bright, and one of the two or three best writers ever to serve on the Court. (Murphy is no fan of Scalia, but the most engaging parts of his book are, ironically, the many lengthy quotations from Scalia.) Yet Scalia has had limited influence on the Court’s results. As Murphy’s subtitle suggests, he has been “a court of one.” Despite his enormous talents, his views can prevail only where they happen to coincide with those of four other justices, and they often do not—precisely because he is so dogmatically conservative.

Scalia insists that the only appropriate way to interpret the Constitution is by unearthing the “original public meaning” of the text through examination of contemporaneous dictionaries and other historical sources. Any other form of interpretation, he argues, invites justices to impose their own personal prejudices. But on today’s Court, only Justice Thomas adheres to this strict originalist approach; the others all accept some notion that the Constitution’s meaning evolves over time, through specific elaboration of doctrines and the need to apply the Constitution’s often open-ended terms to situations and issues unimaginable to the founding generation. Employing his “originalist” method, Scalia sees no basis for constitutional protection of the right to choose to terminate a pregnancy, of gay rights, or of the right not to be executed for crimes committed as a juvenile. But he writes in dissent on these and many other issues, because Justice Kennedy disagrees with him, and speaks for the majority.

Upon Scalia’s confirmation to the Court in 1986, some predicted that he would be an especially effective leader. Geoffrey Stone, a former colleague of Scalia’s at the University of Chicago Law School, said that Scalia “has the personal skills, intelligence, patience and manner to work out compromises and find common ground.” A former student of Scalia’s, later a federal judge, Michael McConnell, said,

I will predict you will not see him running off and writing separate opinions merely because he takes exception with small issues or details…. He believes it is important to the country for the Court to get together and to speak with a single voice.

These predictions could not have been more wrong. Scalia is famous for his acerbic pen, and has often seemed to reserve his sharpest attacks for Justices O’Connor and Kennedy, by whom, one senses, he feels betrayed—but whose votes he almost always needs if his views are to become law. In his third term on the Court, he wrote that Justice O’Connor’s refusal to consider overruling Roe v. Wade in an abortion case was “irrational” and “cannot be taken seriously.”

He was only warming up. When Justice Kennedy concluded in a 1992 opinion that holding a prayer at a public high school graduation violated the Establishment Clause because it exerted psychological coercion on those present, Scalia called Kennedy’s approach “incoherent” and said that “interior decorating is a rock-hard science compared to psychology practiced by amateurs.” In 1994, when Kennedy and O’Connor joined an opinion holding that a New York state school district drawn exclusively for the Jewish village of Kiryas Joel impermissibly established religion, Justice Scalia dismissed the Court’s ruling as “preposterous.” He shows no inclination to pull punches in order to avoid alienating his colleagues whose votes he will need in future cases.

In part, this may be a relic of Scalia’s experience as a star debater in his youth. He was one of the nation’s best, first at Xavier High School in Manhattan, then at Georgetown University. Debaters don’t compromise. As Murphy puts it:

Success required four skills: a razor-sharp wit to cut through arguments under great pressure, a sharper tongue to deliver penetrating and concise attacks, an unflappable nature to deal with a barrage of attacks, and the ability to organize and deliver swift persuasive extemporaneous orations.

Scalia still has all four skills, but they don’t serve him quite as well on the Supreme Court.

But there is another, deeper explanation. To Scalia, law is about clear rules and objectively determined outcomes, not murky compromises and evolving understandings. Unlike Justice William Brennan, who was a master at “getting to five,” Justice Scalia’s view of the law, combined with his extreme conservative views, relegates him to “a court of one.” As his relatively marginal role on the Court shows, a brilliant legal mind and a talent for argument is not enough to succeed on a multimember Court, where results are most often dictated by the justices most willing to find common ground.

4.

On one very important issue, however, the Roberts Court has been unremittingly conservative: access to judicial remedies for legal wrongs. At every stage, it has favored rules that make it more difficult to pursue justice in the courts, so much so that Tribe and Matz call it the “anti-court Court.” It has imposed higher “pleading” standards on complaints, ensuring that more lawsuits can be dismissed by trial judges at the threshold, before plaintiffs are able to obtain discovery from defendants. It has upheld contract provisions that require consumers and employees to pursue remedies against corporations through arbitration favored by employers rather than in court. It has presumptively barred classwide arbitration, even where that means that some forms of illegal conduct will never be remedied. This is the case, for example, when a corporation has fraudulently bilked thousands of consumers out of amounts of money too small to warrant individual litigation, while its standard contracts require that all disputes be arbitrated on a one-by-one basis.

The Roberts Court has also made it virtually impossible to bring class actions in federal court against employers based on unwritten discriminatory practices (and what employer these days has a written practice of discrimination?). And last term, it declined to hear a challenge to a secret NSA spying program, on the Catch-22 reasoning that plaintiffs had to show that they were actually under surveillance, a showing they could not make precisely because the program was secret.

The Court has radically pared back the “exclusionary rule,” the principal mechanism for enforcing Fourth Amendment rights. Before the Roberts Court took it up, the rule presumptively prohibited prosecutors from using evidence illegally obtained without a warrant in a criminal trial. The Roberts Court has limited the remedy of exclusion to intentional and deliberate violations, a standard that is all but impossible to meet for many unconstitutional searches. In addition, the Court has imposed strict procedural requirements on defendants who seek to assert their right under Miranda v. Arizona to remain silent, and has simultaneously made it easier for the state to demonstrate that defendants “waived” that right.

Because these decisions involve technical questions of civil and criminal procedure, they do not receive the public attention given to the Court’s highly publicized constitutional cases. But they are far more consequential, because they close off the courts to an almost infinite variety of legal wrongs. As Tushnet explains, the Roberts Court’s rulings on legal procedure reflect the fact that while the five conservative justices may differ on particular substantive questions of constitutional law—gay rights, speech, or privacy—they are united in their general skepticism about government regulation, including regulation by courts. They are much more likely to express concern about the costs of regulatory regimes than about the rights of those the regulations are designed to protect.

This attitude has profound significance for civil, political, and human rights. The Warren Court viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process. The Roberts Court, by contrast, prefers that courts have a much smaller part in regulating American life. In pursuit of that deregulatory agenda, it often leaves the vulnerable effectively unprotected. And on this issue, there has been virtually no “uncertainty.” In the end, what most defines the Roberts Court may be its hostility to courts themselves.