The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  There also was a new attorney general—Michael Mukasey—who became increasingly involved when communications from the White House on what the government’s brief would say stepped up as the filing deadline approached. Although there was no huge showdown, discussions and rewriting of the brief continued up to the final hour. Mukasey ultimately told Clement to file the brief that he—Clement—thought the department should file and nothing else.

  Going down to the wire, the solicitor general filed the government’s brief on a Friday evening and, as expected, urged the Court to rule that the Second Amendment protected an individual right to possess firearms. But he told the justices that the lower appellate court did not apply the correct standard for evaluating Heller’s Second Amendment claims.

  “Like other provisions of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid,” wrote Clement. The correct standard of review, he said, was “heightened scrutiny,” the intermediate standard. Under that standard, he wrote, “the ‘rigorousness’ of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions.”

  Because the lower court used the wrong standard of review, Clement urged the Court to send the case back to the lower court to apply the proper standard to Heller’s claims. The brief was not labeled as supporting either side in the case.

  Reaction from gun rights groups was rapid and furious. The head of the Second Amendment Foundation posted on his Web site that the brief was “a transparent exercise of political pandering.” A conservative group said that the Bush administration had “blundered in catastrophic fashion.” Clement was singled out for criticism in a Wall Street Journal editorial.6

  In an unprecedented act, Vice President Dick Cheney subsequently broke with the government’s position and signed on to an amicus brief filed by members of Congress that supported in full the lower court’s decision. In his 2011 memoir In My Time, Cheney recalled the episode and explained that the government’s brief “seemed inconsistent with the president’s previous position on the Second Amendment and it was certainly inconsistent with my view.” He also wrote that Justice Antonin Scalia, who would author the Heller decision and was Cheney’s friend, later joked the Court was uncertain about how to rule until “the vice president’s brief showed up.”7

  Neily thought the government’s reasoning was “shoddy,” and it had offered a brief at war with itself. “What it ultimately asked was to send the case back to the district court where it could conveniently be smothered.” Levy agreed, saying, “We failed miserably with Paul Clement. The administration had been good on gun rights, and Clement was a conservative. Their concern with federal gun laws—nobody was even thinking of challenging those laws.”

  Senator Kay Bailey Hutchison was “livid” when she saw the government’s brief, said Stephen Halbrook, the Second Amendment litigator. She contacted him about writing an amicus brief for members of Congress, the brief that Cheney eventually signed. “Congress in reports and elsewhere interpreted the Second Amendment as an individual right,” recalled Halbrook. “I thought a brief would be good for the Court not only on original understanding but how it had been interpreted by another branch over the years. Hutchison’s office rounded up a whole other bunch of members. The vice president’s joining our brief was orchestrated by Hutchison’s office.”

  But gun control advocates saw the government’s brief as something of a gift, given the administration’s position on the individual right. The door would still be open to reasonable gun regulation under the government’s approach.

  “We thought we had gotten about as much out of them as we could,” recalled Morrison. “It was very unclear what test they were applying. Asking for a remand to the lower court was as much as we could hope.”

  But Morrison had bigger problems at hand. The ground was shifting under his feet in the District’s legal office.

  The District’s attorney general, Linda Singer, was increasingly frustrated by the growing involvement of the mayor’s general counsel, Peter Nickles, in her office’s work. The attorney general is appointed by the mayor and confirmed by the city council as the city’s chief legal officer. The mayor’s general counsel is appointed by the mayor and tasked with handling legal issues particular to that office. Nickles, a longtime friend of the mayor’s father, had known the mayor since he was a child. An aggressive, veteran big firm litigator, Nickles had the mayor’s trust and saw few boundaries to his duties.

  Their clashes had become frequent enough that Singer, just eleven months on the job, decided in December 2007 that she would resign, but she wanted to wait until the District’s merits brief in the gun appeal was ready to be filed with the Supreme Court. She had been heavily involved in the case’s briefing and felt responsibility for it. In her resignation letter to the mayor, she took the high road and said nothing about her frustrations with Nickles.

  Nickles, who was named acting attorney general, called Morrison into his office on December 21, just after Singer resigned, for what Morrison described as a “very unpleasant conversation.” He asked if Morrison had talked to the press about Singer’s resignation, which by then had been reported with Nickles portrayed as the “heavy.” Morrison said he denied speaking to the press. Nickles also said he had not decided what to do about who would argue the gun case. Morrison made a strong pitch for himself, saying he had worked on the merits brief, had started to prepare for the argument, and had time to write the reply brief which would come after the Levy team filed its own merits brief. Nickles was noncommittal.

  Morrison continued to put final touches on the District’s merits brief. “The only thing I was really insistent upon was [that] one word would not appear in our brief, and that word was ‘clear’ because the history [of the Second Amendment] wasn’t clear. To say it was clear would have denigrated the thousands of trees that had been killed in the name of Second Amendment scholarship in the last thirty years,” he said. “What we said every time was ‘the better view, taking into account both the history and everything else.’ ”

  But Nickles felt that Morrison was not making the strongest argument on behalf of the District. “When I got into review of the final drafts of the brief, the argument not being made was as long as the District reasonably regulated the use, possession of guns, that would not violate the Second Amendment no matter what the Court thought the Second Amendment meant,” Nickles said. “I thought that was a very important point and I was not making a lot of progress. I always think it’s better to win something than to lose everything.”8

  Less than a week after his meeting with Nickles, Morrison received an e-mail from the District’s deputy attorney general informing him that Nickles had decided Morrison would not argue the case and was to clear out his office by the end of the following week—the day on which the District’s merits brief was to be filed. No decision had been made on who would argue the gun case, arguments which were now a little over two months away in perhaps the most important case in the city’s history.

  “I thought I was not inherently the best person to argue this case, but given where we were in January, it was a bad idea to have somebody else,” said Morrison.

  Nickles turned to Walter Dellinger, a constitutional law scholar on leave from Duke University School of Law and head of the Supreme Court and appellate practice at O’Melveny & Myers. The silver-haired Dellinger speaks with a soft southern drawl and is an unabashed liberal who most recently has been a highly visible, outspoken defender of the constitutionality of the Obama administration’s Affordable Care Act. He served as legal adviser to President Bill Clinton before being nominated by Clinton to head the Office of Legal Counsel in the Department of Justice. He oversaw that office from 1993 until 1996, when he was appointed acting solicitor general of the United States. He argued nine cases as acting solicitor ge
neral in the 1996–97 Supreme Court term.

  Dellinger was reluctant to take on the District’s gun appeal, but not because he thought it was a losing proposition. He told Nickles that he already had two arguments scheduled in the Court in February 2008. He was representing Morgan Stanley Capital Group in a complex electric energy contract dispute in arguments on February 19. A week later, on February 27, Dellinger was making Exxon’s arguments in its high-stakes battle to reverse a $5 billion punitive damages award for the 1989 oil spill by the Exxon Valdez tanker in Prince William Sound. And the gun arguments were scheduled less than three weeks after the Exxon case.

  Nickles was not concerned, and persuaded Dellinger to step into the vacuum that he had created. “I got a guy who I think is one of the finest, most experienced presenter of arguments in the Supreme Court,” said Nickles. “I didn’t really know Morrison and I have nothing but good things to say about him. When I talked to Walter, I said, ‘Can you do it?’ He said yes. That’s all I needed to know. The busy people very generally are the best people because everybody prizes their talent. I also discussed with him the argument I thought we were neglecting. It became a sharper argument in the reply brief than it had been in our opening argument.”

  Stepping into the gun arguments “was the single hardest thing I’d done since getting out of law school,” recalled Dellinger. “They were all three major, half-hour arguments. The problem was once Alan Morrison was no longer working on the case, it was hard to figure out who else could argue it. Alan was like a scholar in residence for the District’s legal office. He was there to do something exactly like this if it came along. At least I had been involved in the briefing, though not in the way I’m involved in a case I’m planning to argue. I told [Nickles] that.”9

  On the other side, Alan Gura’s partner, Bob Levy, also was not immune to pressures surrounding who would argue the case for Dick Heller. “I was under considerable pressure from the gun rights movement to get Ted Olson, Ken Starr, Miguel Estrada [leading conservative lawyers], or some other Supreme Court expert and squeeze Alan out of the picture,” he said. “It actually was less the gun rights community than pressure from the legal community. I had to consider the prospect of victory with an experienced Supreme Court litigator. The other side of the argument was I had promised Alan if this became a big case, it would be his big case. Secondly, he had done a good job. I became convinced that faced with the choice of an experienced litigator who hadn’t immersed himself in the issue and one who had, I was better off with Alan.”

  The stage was set for the eventual face-off between the Supreme Court veteran, Walter Dellinger, and the Supreme Court novice, Alan Gura.

  As the drama within the District’s legal office played out, supporters on both sides of the gun case engaged in what was one of the largest amicus efforts in the Court’s history. By the time the deadline for filing all briefs in the case passed, sixty-seven green-covered friend of the court briefs—forty-seven supporting Heller, twenty backing the District—lined up like toy soldiers on shelves in the Court’s public information office and other offices in the Supreme Court Building.

  Many of the briefs represented the views of multiple organizations or individuals. There were dueling briefs by former Department of Justice officials, district attorneys, members of Congress, state attorneys general, criminologists, academics, and historians. And arguments were made as well by organizations against domestic violence, conservative legal foundations, health associations, numerous rifle and pistol clubs, libertarian think tanks, and religious organizations. Besides legal and historical analysis, the briefs discussed policy issues, such as racial discrimination and the safety of children, and offered statistical evidence on gun-related crimes.

  The sheer number of groups and organizations involved reflected not only the high stakes in the gun case but also, more generally, the modern explosion of interest group participation in Supreme Court cases. In the 1960s, amicus briefs were filed in about 41 percent of the justices’ cases, with an average of one per case, according to a scholarly study. From the 1990s to 2008 (when the gun briefs were filed), the number jumped to 90 percent of the cases, with an average of six per case.10

  Do those briefs really matter? There have been rare occasions when an argument in an amicus brief became the basis for the Court’s majority opinion. For example, a brief filed by twenty-nine high-ranking former U.S. military leaders had a direct impact on the outcome of the University of Michigan Law School’s affirmative action case in 2003. Their arguments on the importance of a diverse officer corps were cited by Justice Sandra Day O’Connor during oral arguments in the case, in her majority opinion, and in the summary of her decision which she read from the bench.

  In the gun case, Levy, Gura, and Neily drew up a list of issues that they hoped amicus briefs would address, such as empirical data on the ineffectiveness of gun control in preventing violence and the actual meaning of “well regulated Militia.” They then attempted to match that list to organizations and attorneys most suited to deal with the issues.

  Of the forty-seven briefs supporting their side, Neily believed one signed by fifty-five U.S. senators, two hundred fifty U.S. representatives, and Vice President Dick Cheney, and another by thirty-one state attorneys general both were crucial. The congressional brief was authored by Stephen Halbrook, who, along with the NRA, had been the Levy team’s earlier nemesis but now were committed supporters. Besides filing its own amicus brief, the NRA helped “immeasurably” with the congressional brief, according to Levy, whose team lacked the NRA’s resources and influence.

  The congressional and states’ briefs were important not so much for their legal analysis but because they gave the Court “the assurance that what we were asking them to do represented the mainstream position, contrary to what you might think if you were insulated in an ivory tower or went to work every day in a building protected by armed guards and lived in a pretty nice part of town,” said Neily. “It might not occur to you there actually are people in the country who do need a gun to defend themselves. Having those briefs was a way of letting the Court know that despite the fact we were asking it to reject the position of nine circuit courts at that time, we were taking the less radical position.”

  The fewer number on the District’s side did not mean less outside support for its position. Dellinger, based on years of experience, knew that justices and their clerks, faced daily with a barrage of reading material, valued brevity. Key among his amicus briefs was one by Founding-era scholars, including the Pulitzer Prize–winning historian Jack Rakove. Dellinger’s instinct told him that less was more and that this historic battle would become a battle over history.

  CHAPTER 9

  “I am a textualist. I am an originalist. I am not a nut.”

  —Antonin Scalia, 2008

  When he joined the Supreme Court in 1986, Associate Justice Antonin Scalia was the lone clarion for a particular way of interpreting the U.S. Constitution.

  Sitting in his chambers in July 2011, shortly after the end of the October 2010 term, Scalia, relaxed yet somewhat formal, took a break from working on his second book with Bryan Garner, Reading Law: The Interpretation of Legal Texts. He recalled: “When I first came on this Court, I was the only originalist. Counsel would not even allude to original meaning. They would just cite the last Supreme Court case. All of the research into what [a provision] was originally understood to mean I had to do myself and my law clerks.”1

  But the gun case—District of Columbia v. Heller—showed just how much that situation had changed in two decades. The final decision, he said, was the greatest “vindication of originalism.”

  A year before Scalia became a justice, President Reagan’s attorney general, Edwin Meese, jump-started nationally what had been largely a closely held debate within law schools and law reviews. In a 1985 speech to the American Bar Association, he criticized Supreme Court justices for seeming to “roam at large in a veritable constitutional forest.” The
courts, he said, needed jurists who would “judge policies in light of principles, rather than remold principles in light of policies.” He called for a “jurisprudence of original intention,” in which judges interpreted the Constitution by determining the intent of its framers. It was the first in a series of speeches by Meese about originalism and represented the continuation of attacks on the Warren Court’s decisions aggressively pursued by President Richard Nixon.

  Later that same year, Justice William Brennan Jr.—whom Scalia called the most influential justice of the twentieth century—offered a competing vision of constitutional interpretation. “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current times and current needs,” said Brennan in a speech at Georgetown University.

  The great debate over the two approaches—“originalism” versus what its proponents called derisively “living constitutionalism”—was revitalized, and it rages on today.

  Originalism became the darling of many conservative legal scholars, as did its most high profile advocate, Scalia, but even they agreed with critics that there were some problems with discerning the various intentions of the numerous Framers of the Constitution. In 1988, Scalia gave a lecture in Cincinnati entitled “Originalism: The Lesser Evil.” Scholars on both sides of the debate credit him with shifting the emphasis in constitutional interpretation away from divining the Framers’ intentions toward basing it, instead, on the original public meaning of the text at the time of its enactment.

  Scalia conceded in his speech that originalism had “warts.” He explained: “Its greatest defect, in my view, is the difficulty of applying it correctly . . . . What is true is that it is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous mass of material . . . . It is, in short, a task sometimes better suited to the historian than the lawyer.”