The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  “All that race was used for at that point in time was to deny equal opportunity to black people,” Carter told The New York Times. “It’s to stand that argument on its head to use race the way they use it now.” And Jack Greenberg of Columbia Law School added, “The plaintiffs in Brown were concerned with the marginalization and subjugation of black people. They said you can’t consider race, but that’s how race was being used.”5

  And while it was not a cruel irony, it was certainly ironical and highly unusual for a justice to quote and rely on the lawyers who argued a case for the meaning of a Court precedent. Both Roberts and Alito had emphasized during their Senate confirmation hearings that when they had advocated certain often controversial legal positions as lawyers, they were only representing their client, the government, not their own personal views.

  The Seattle and Louisville cases exposed a great divide among the justices over race under the Fourteenth Amendment’s equal protection clause. Four justices—Roberts, Scalia, Alito, and Thomas—adopted the view that the Constitution is color-blind and prohibits almost all use of racial classifications. Four justices—Stevens, Souter, Breyer, and Ginsburg—saw a constitutional distinction between the use of race that seeks to exclude and that which seeks to include members of minority races. Breyer wrote: “I can find no case in which this Court has followed Justice Thomas’ ‘colorblind’ approach.”

  In the middle was Kennedy. “The statement by Justice Harlan that ‘Our Constitution is color-blind’ was most certainly justified in the context of his dissent in Plessy v. Ferguson [the 1896 decision upholding “separate but equal”] . . . . and, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle,” he wrote. The enduring hope, he added, is that race should not matter; but “the reality is that too often it does.”

  Kennedy has written forcefully against the use of racial classifications in cases involving affirmative action, voting rights, and reverse discrimination. In fact, he has never voted to uphold an affirmative action plan. But Kennedy, say his former clerks and others, is an idealist, and his somewhat more moderate views in the school cases may reflect his hope that schools will not just educate but will foster interracial and interethnic relationships.

  “He said school boards may pursue the goal of bringing the races together,” emphasized Payton of the NAACP Legal Defense Fund, shortly before his death. “He embraced this as a compelling interest. It has a democracy component.”

  Whether Kennedy would be a moderating force in other contexts concerning race remained to be seen, and another clue could come very soon.

  During the Court’s deliberations in the school cases, the outcome was not a foregone conclusion, according to some former clerks. “I remember there being discussions about Kennedy and how he might be persuaded,” said one.

  Kennedy had been fairly specific about what troubled him in Roberts’s draft opinion, said another clerk, and yet Roberts, who could have had a majority if he had moderated his draft, would not change it. “There was pretty extreme language in the plurality opinion that indicated to me that perhaps at least as to race, there was a certain recalcitrance that didn’t look like the person who sat before the Senate Judiciary Committee,” another clerk added.

  Roberts, joined by Alito, now had made clear his view of racial classifications, and that view was remarkably similar to his view during his foot soldier days in the Reagan administration. He did not repudiate the Court’s affirmative action decision in the Michigan case that O’Connor had written, but he limited it to the circumstances of that particular university case. He and the rest of the Court would fight another day over the vitality of O’Connor’s ruling. And that day was coming fast. On February 21, 2012, the Court agreed to once again consider the role of race in a university’s admission policy by granting review in a case involving the University of Texas.6

  Given the strong views expressed by Chief Justice Roberts and those who joined him in the school cases and those who did not, the Court’s divide on race is likely to continue even with the recent additions of Justices Sonia Sotomayor and Elena Kagan. Kagan’s views are unknown, but Sotomayor, who succeeded Souter in 2009, gave a brief insight into her thinking during a January 2011 speech at the University of Chicago Law School. She called “too simple” Roberts’s statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

  “I don’t borrow Chief Justice Roberts’s description of what color-blindness is,” she said. “Our society is too complex to use that kind of analysis.”

  The bitterness at the end of the first full term of the newly constituted Roberts Court stemmed primarily from feelings—justified or not—among justices to the left of center that Roberts’s publicly stated commitment to greater consensus through narrow decisions and, in particular, to respect for precedents, had dissolved in the face of result-driven judging.

  To conservative Court watchers, the Court’s sharper turn to the right was “quite predictable,” but did not accomplish all that was necessary, according to former Reagan Justice Department official Michael Carvin, partner in Jones Day. Carvin, who in the summer of 2012 lodged a major challenge to the nation’s premier civil rights law—the Voting Rights Act—described the Court’s conservative justices as being in a “holding pattern.” They will need one more vote “to complete the sweep and a return to the rule of law,” he said. Carvin left unsaid that one more vote was needed because of the unreliability of Kennedy.7

  Regardless, the Court on that final day of the 2006 term appeared exactly as Roberts had hoped then, and continues to hope, it would never seem to be: an ideologically riven, political institution.

  The Seattle school contingent—Korrell and his client Kathleen Brose, and the school district’s lawyer, Madden—knew the last day was decision day in their case. Korrell and Brose were at home when the decision was announced, and Madden was in his office despite the three-hour difference between the east and west coasts.

  “The phone started ringing at seven and didn’t stop the whole day,” recalled Korrell. The lawyer liked Roberts’s opinion but found Kennedy’s opinion “frustrating” because, he said, “it’s obtuse in an area where we all benefit from clarity. Both sides are parsing Kennedy’s opinion as to what they are allowed to do and aren’t.”

  The truth is there are some schools in Seattle that are very good and some that are hard to improve, he added, and there is political pressure to do something—pressure from minority communities not being well served by these schools. “The something the school district was doing was letting them bump kids out of schools. It’s politically expedient but leaves the problem. Having that device [the race tiebreaker] taken away was appropriate.”

  The Court’s decision meant to Brose a return to neighborhood schools, even though her community still did not have one to call its own.

  “Something people don’t understand about this school choice issue is when you give parents the choice to pick a school, and it’s not necessarily your neighborhood school, people will pick schools that have all these special programs,” she said. “If a school is perceived not to do well, people who can will abandon it. So you create these schools with issues, and this is what happened. But when you have a neighborhood school in Seattle, you actually have better diversity because you get a mixture of kids and parents like me get in to volunteer. Neighborhood schools work.”

  Madden had been resigned to losing the case but the decision still stung, particularly Roberts’s claim that the school plan imposed a huge individual burden for little benefit.

  “If you looked at the open choice program, there was really only two years’ worth of information in the court record and you could say that,” he said. “If you looked at open choice as the end or nearly the end of desegregation measures that started in the 1960s, that peaked with the 1978 mandatory busing plan and then w
ere reduced in intensity and frequency over the ensuing twenty years, then I don’t think you could readily say it did little.”

  Seattle, he added, was “ripe for plucking as a de jure segregation” case in the seventies, which was why it was threatened with a lawsuit, why the Carter administration threatened to withhold federal funds, and why the school district turned to mandatory busing. “And Roberts says, ‘Well, Seattle never operated a segregated school system.’ It depends on who you ask.”

  Still, the “abiding thing” Madden said he learned from the case was no matter what side parents are on, it is all about what they think is the best for their kids. “The interest groups and the academics all have their respective points of view. But the universal thing for the parents is they’re there trying to achieve what they think is best for their kids at a particular point in time, and doctrine isn’t all that important to them.

  “If Harry’s clients could have used race to get them into the school they wanted, they would have been fine with it.”

  PART 2

  GUNS

  CHAPTER 7

  “For most Americans, they always assumed they had a right to defend themselves with a firearm in the home.”

  —David Lehman, general counsel, National Rifle Association, 2011

  Whatever the justices’ plans were immediately after the term of their discontent, guns and the Second Amendment were not on their summer reading lists.

  But that would change quickly. In just two months, one of the longest running political, social, and legal debates in the country’s history would arrive at the Roberts Court, which, as it had demonstrated in the school assignment cases, would be willing to step into the shoes of local elected officials, whatever their judgments, to provide the final answer.

  The words of the Second Amendment, ratified in 1791 with the nine other amendments known as the Bill of Rights, seem deceptively simple: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” And yet those twenty-seven words had inspired a staggering number of competing interpretations in law reviews, books, and opinion pieces over the last three decades.

  The debate essentially boiled down to two views. One view held that the amendment’s first clause—the preamble—makes clear that the right is a collective right tied to service in and preservation of a militia. The other view relied on the second clause—the operative clause—as creating an individual right to possess firearms not tethered to militia service.

  There was little controversy over the meaning of the Second Amendment for most of the last century. Historians, courts, legal scholars, and others either accepted or endorsed the militia-based interpretation. But beginning in the 1980s and blossoming in the 1990s, a series of law review articles—primarily by conservative legal scholars—aggressively pushed the individual right interpretation. Some of the research was funded by the National Rifle Association (NRA). Many historians of the Founding era challenged the research and criticized it as “law office history.” With harsh words for the NRA, even former Chief Justice Warren Burger, in a 1991 interview on public television, said that the Second Amendment was “the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

  But the individual right view gained considerable traction over time with the public and even with some well-known, liberal constitutional law scholars. By the time the question of the amendment’s meaning reached the Supreme Court, the justices would find scholarship on its meaning deeply divided.

  If the justices were not thinking about the meaning of the Second Amendment that summer of 2007, three determined, conservative libertarian lawyers were, and had been for the previous five years. During that period, they manufactured the near-perfect lawsuit designed with one ultimate objective: a Supreme Court ruling that the Second Amendment guaranteed an individual right to possess firearms—not a collective right connected to service in a militia.

  Happy Hours and guns can be a potentially lethal combination, but during one evening in 2002, they marked the beginning of a winning combination.

  Clark Neily, intense and aggressively articulate, of average height and build, and Steve Simpson, tall, thin, soft-spoken, with a professorial look, are young, senior attorneys with the Institute for Justice, a libertarian public interest law firm in Arlington, Virginia, just outside Washington, D.C. The institute was set up in 1991 by two Reagan administration veterans: William “Chip” Mellor and Clint Bolick, who had worked with Clarence Thomas when Thomas headed the Equal Employment Opportunity Commission. The institute’s lawyers litigate on behalf of private property rights, free speech, and school choice, and against government regulation of business. With remarkably sympathetic plaintiffs and smart lawyering, the institute has scored a number of victories in state and federal courts, including the U.S. Supreme Court.

  But on that June evening in 2002, Neily and Simpson discussed over drinks a legal case not on the institute’s agenda. A federal appellate court, in a dramatic break with all other federal appellate courts to consider the question, had ruled in a criminal case that the Second Amendment protected an individual right to keep and bear arms.

  The case—United States v. Emerson—stemmed from charges against Dr. Timothy Emerson for violating a section of a federal firearms law that prohibited the subject of a domestic restraining order from possessing a gun, here a Beretta pistol purchased by Emerson. The Texas doctor, in the process of a messy divorce, had threatened his wife and daughter with the pistol. He argued the federal provision banning his possession of a gun violated his rights under the Second Amendment and the due process clause of the Fifth Amendment.

  Although a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, ruled 2–1 that the Second Amendment’s text and history supported the individual right interpretation, the panel unanimously held that the federal firearms provision was constitutional as it applied to Emerson. The panel explained that the individual right protected by the Second Amendment “does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.”1

  The two judges in the majority rejected the federal government’s steadfast position—advanced by the Clinton administration—that the Supreme Court’s decision in a 1939 case (United States v. Miller)2 was binding precedent for the militia-based interpretation of the amendment.

  The one judge who refused to join the Second Amendment finding called the majority’s eighty-four pages of analysis “dicta,” or non-binding, extraneous material not necessary to resolve the case. “Unfortunately, however, the majority’s exposition pertains to one of the most hotly-contested issues of the day,” he wrote. “By overreaching in the area of Second Amendment law, the majority stirs this controversy without necessity when prudence and respect for stare decisis calls for it to say nothing at all.”

  The decision did, indeed, heat the controversy to a boil. Gun rights groups immediately hailed it as the most important Second Amendment decision in history.

  While the Emerson case was pending before the appellate court, presidential administrations had changed. George W. Bush assumed the presidency and his administration dramatically shifted the government’s position on the Second Amendment. Just five months before the appellate court issued its opinion, Attorney General John Ashcroft, responding to a letter from the executive director of the National Rifle Association, wrote back on Department of Justice stationery:

  “While I cannot comment on any pending litigation, let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals
to keep and bear firearms. While some have argued that the Second Amendment guarantees only a ‘collective’ right of the States to maintain militias, I believe the Amendment’s plain meaning and original intent prove otherwise.”3

  Of course, the “some” who had argued for the collective rights interpretation included the federal government in court cases for almost seventy years. Gun rights and gun control groups as well as numerous media outlets broadcast the Ashcroft letter, its change in the government’s view of the Second Amendment, and what the future implications for gun law and gun litigation might be.

  The appellate court in the Emerson case, however, did not address the Ashcroft position, only what the Department of Justice had advocated throughout the case—the collective rights position.

  After the appellate court ruled in October 2001, Ashcroft, himself a member of the National Rifle Association, sent a memo the next month to all U.S. attorneys in which he told them, “In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment.”4

  Emerson sought review in the U.S. Supreme Court, which was then headed by Chief Justice William Rehnquist. In opposing review, the Bush administration’s solicitor general, Theodore Olson, informed the justices of the government’s new position on the Second Amendment. In a footnote in his brief, Olson wrote:

  “In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.”