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

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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,

  1. *

    The interview was the basis of the last chapter of Rosen’s book, The Supreme Court: The Personalities and Rivalries That Defined America (Times Books, 2007).

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