by Marcia Coyle
Despite pushback from the White House, the department decided to make both the AIA and the tax power arguments in the district courts—the first front in the fast-approaching battle.
At the time, another high-ranking administration lawyer involved in the discussions recalled thinking, “What we should expect is there are going to be district judges who rule for us and district judges who rule against us. And, in part, that was probable because of the [challengers’] ability to forum-shop [search for the most potentially favorable court in which to file the lawsuit], which the other side did effectively.
“Then I thought there would probably be some split decisions in the courts of appeals because there were multiple cases going on,” he added. “I wasn’t surprised. There’s a narrative out there—how the other side was able to take its legal position from the fringe to the mainstream. I think that’s a fair characterization of it. You could see that happening; it was distressing.”
As the lawyers on both sides prepared to head into district court on health care, a Supreme Court justice, the longest serving among the nine and the unassuming but effective leader of the liberal side of the bench, was preparing to leave. On April 9, 2010, Senior Associate Justice John Paul Stevens informed President Obama that he intended to retire on the day after the Court ended the term for its summer recess. The Court was now facing its fourth vacancy in five years.
Although Stevens’s successor would be a Democratic appointee and like Souter’s replacement by Sotomayor would not change the ideological balance on the Court, his departure would be felt acutely in a number of ways. The only justice on the Roberts Court with active duty military experience, having served in the U.S. Navy during World War II, Stevens brought a realistic view of government power to the George W. Bush administration’s exercise of that power in the war on terror. As senior associate justice, Stevens had the power to assign majority decisions whenever he was in the majority and the chief justice was in dissent. He either wrote or assigned the majority opinions in a series of terrorism-related cases, and those decisions reined in broad assertions of power by the president and Congress, imposed due process—fairness—in the government’s detention of alleged enemy combatants, and reinforced the importance of the Great Writ of habeas corpus and the role of the federal courts in the constitutional scheme.
“Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber,”I Stevens wrote in Rumsfeld v. Padilla, the 2004 case involving the American “shoe bomber” Jose Padilla, who was being detained by U.S. officials. “For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”
He succeeded in those and other 5–4 decisions often because he was able to find common ground with Kennedy, and before Kennedy with Sandra Day O’Connor in other areas of the law, such as affirmative action and civil and consumer rights. He did no face-to-face persuasion of his colleagues in the privacy of their chambers, as Justice William Brennan Jr. often did, recalled some justices, but won their support through the strength of his draft opinions and memos and his accumulated experiences in life and the law.
Stevens also led a “revolution” in criminal sentencing. A concern for due process—or fairness—undergirded his opinions in this area as well as other issues within the criminal justice system, such as the death penalty and the Sixth Amendment right to counsel. In an unusual coalition with Scalia and Thomas, Stevens dismantled the mandatory nature of federal sentencing guidelines that judges were required to follow and reinvigorated the role of the jury in sentencing matters.
During the course of his three decades on the Court, he also made a remarkable journey in his thinking about the death penalty. In 1976, Stevens co-authored with Justices Potter Stewart and Lewis F. Powell Jr. a trio of decisions reinstating the death penalty in Georgia, Texas, and Florida, after it had been struck down by the Court in 1972. Although supporting capital punishment, he sought to constrain its use to the most egregious of crimes and offenders. He wrote majority opinions narrowing the eligibility for the penalty by striking down capital punishment for those under age fifteen and for mentally retarded persons. He also is credited with being particularly influential in the 2005 decision, written by Kennedy, barring the penalty for juveniles under eighteen.
Stevens, in a concurrence to a decision upholding Kentucky’s procedures for administering lethal injection, finally concluded in 2008 that the death penalty “with such negligible returns to the state” was unconstitutional.11 It was the same conclusion reached earlier by two of his former colleagues who voted with him in that 1976 decision reinstating the capital punishment—Powell and Harry Blackmun.
When appointed by President Gerald Ford, Stevens, a federal appellate judge at the time, was known as a moderate Republican. He seemed an unlikely heir to the mantle of “leader of the left” or master strategist of the Court’s liberal wing, as some called him. Early in his tenure on the high court he was a maverick, often writing sole dissents or concurrences on issues in cases that failed to move or intrigue his colleagues and were difficult to label as consistently liberal or conservative. He rejected claims by the media and others that he had evolved or become liberal as the years passed. In several interviews before and after his retirement, he explained that it was the Court that had moved much more to the right.
“The makeup of the Court has changed dramatically,” Stevens said in a 2009 interview with USA Today. “If you use the term ‘conservative’ the way a lot of people use it, since I joined the Court, every new appointee has been more conservative than his or her predecessor. You can go right down the line,” with the exception of Ruth Bader Ginsburg, who succeeded Byron White.12
Perhaps one of his most memorable lines in an opinion came in his dissent in Bush v. Gore when he wrote: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
After his retirement, Stevens said in an interview that he believed the Roberts Court’s Second Amendment decision in District of Columbia v. Heller, finding an individual right to own a gun, and the Rehnquist Court’s states’ rights rulings involving sovereign immunity and the Eleventh Amendment, were among the Supreme Court’s worst decisions. Ironically, his last opinion for the Court would be a dissent in the sequel to the Heller gun decision, a case asking whether the Second Amendment should be applied to the states.
Who among the justices was likely to fill Stevens’s role on the left? No one seemed obvious, but then, neither had Stevens after Brennan and Blackmun left the bench. Going forward, when the Court’s five conservatives stood firm, Justice Ruth Bader Ginsburg, as senior justice in the minority, would have the power to assign dissents. Appointed in 1993, Ginsburg had carved a niche in two areas: civil rights, particularly those involving the nation’s job bias laws; and the often arcane world of civil procedure—rules for conducting litigation in the federal courts. Her diminutive size and solemn speaking style on the bench belied a steely resolve. How she would wield the assigning power, one of the few ways an individual justice could try to control the course of an opinion, when given the opportunity was as yet unknown.
As he had with the Sotomayor nomination, President Obama wasted no time in tapping a nominee to succeed Stevens. A month after Stevens’s announcement, Obama named the other person who had been at the top of his list of potential high court appointments even before he took the oath of office. Solicitor General Elena Kagan, who only eight months earlier made her first appellate argument ever in Citizens United, got the nod on May 10, and the Court and the country once again prepared for the Senate’s exercise of its constitutional advice and consent duties.
At the same time, the Roberts Court was starting its busiest part of
the 2009–10 term—the final lap. The Citizens United decision, the announced retirement of Stevens, and the nomination of Kagan would have been enough to mark the term as one of the most important since Roberts became chief justice. But there was more to come.
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From early spring until the end of June, the justices decided the bulk of their docket. Roberts, Scalia, and Kennedy separately led the Court in four of the five First Amendment cases to be decided. Roberts, in an 8–1 decision in United States v. Stevens, held that a federal law criminalizing the creation, sale, or possession of certain portrayals of animal cruelty violated the First Amendment because the law was “substantially overbroad.” The law focused on so-called crush videos, which often depict women slowly crushing small animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter.” But the case focused on the law’s application to videos of dogs fighting with each other or different animals.
Roberts said the law’s text applied to any depiction in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” While the terms “maimed, mutilated and tortured” convey cruelty, he wrote, “wounded or killed” do not, and the law could be read to apply to depictions of hunters and slaughterhouses. Although the government argued that it interpreted the law to apply only to acts of “extreme cruelty,” Roberts was not persuaded, saying, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”
Justice Alito, who statistically has had the highest rate of voting agreement with Roberts than any other pair of justices, disagreed this time with the chief. He disputed the majority’s concern that the law could be applied to hunting and other legal activities, noting that nearly all the states that prohibited animal cruelty expressly exclude wildlife or exempt hunters. The federal law, he argued, could be applied constitutionally to illegal animal crush videos and dog-fighting videos and so was not so broad as to be unconstitutional on its face.
Kennedy soon followed with a 5–4 decision holding that Congress acted properly to resolve a First Amendment violation by transferring land in the Mojave Desert National Preserve, on which a five-foot cross stood, to the Veterans of Foreign Wars. Stevens led the dissenting liberal wing, saying the land swap was an obvious attempt to keep the cross in place and still had the unconstitutional effect of advancing religion.
Seven of the nine justices wrote opinions in Doe v. Reed, a decision in which an 8–1 majority led by Roberts held that the disclosure of signatures on a referendum petition generally does not violate the First Amendment. The names and addresses of petition signers were accessible under Washington’s Public Records Act. Roberts said the disclosure was sufficiently related to the state’s interest in ferreting out invalid signatures and combating fraud. Only Justice Thomas dissented, saying the state had narrower ways of protecting the integrity of the petition process and warning that the Court’s decision would chill citizen participation.
The Court, however, departed from its strong speech protection in Holder v. Humanitarian Law Project, where speech collided with the war on terror. A 6–3 majority, led by Roberts, ruled that the federal government could prosecute those who train foreign terrorist organizations to use peaceful means to resolve disputes for violating the federal law against material support to those organizations. Even seemingly benign support bolsters the activities of those organizations, wrote Roberts, who garnered one vote from the left—that of Stevens. Breyer, expressing his strong disagreement by summarizing his dissent from the bench, countered that while charitable contributions might free up funds in those organizations to buy more weapons, the teaching of human rights law would not.
On June 28, 2010, the term’s final day, no one expected Ginsburg to take her seat on the bench. Her husband, who, she later said, had been her “chief cheerleader” in life, had died the day before from cancer. However, Ginsburg had written the 5–4 majority opinion in the last of the First Amendment cases—Christian Legal Society v. Martinez—and she showed up to read her summary. One of her colleagues later said, “It was so hard, but Ruth is just so strong.” Writing for her liberal colleagues and Kennedy, she said a university’s policy that university recognition of student groups required those groups to accept “all comers” did not violate the First Amendment rights of the Christian Legal Society. The society required prospective members to swear allegiance to the Bible and Jesus Christ and to disavow gay and premarital sex. Alito led the dissenters and called the ruling a “serious setback for freedom of expression.”
The decision in the term’s second marquee case—the return of the gun battle—also came on that final day. Repeating the same ideological division that marked the District of Columbia gun ruling in 2008, a 5–4 majority, this time led by Alito, applied the Second Amendment and its guarantee of an individual right to own a gun to the states. The dissenters were again led by Stevens and Breyer, and they were joined for the first time by Sotomayor, who insisted that the 2008 gun case was wrongly decided. But even accepting the premise that the amendment protects an individual right, Stevens said, its obvious purpose was to prevent elimination of the militia. “It is directed at preserving the autonomy of the sovereign States, and its logic therefore ‘resists’ incorporation by a federal court against the States,” he concluded.
It was Stevens’s last major dissent and his last day on the Supreme Court. In a 2002 interview on National Public Radio, Ginsburg had said, “Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today but for tomorrow.”13
The majority once again did not decide what kind of scrutiny—the most searching or something less—to give to gun restrictions to see if they violate the amendment. Despite that uncertainty, like the aftermath of Citizens United in which political activists attempted to use the decision to topple local campaign funding limits, the ruling in McDonald v. City of Chicago triggered a wave of lawsuits in which the National Rifle Association, criminal defendants, and others launched challenges to state and local gun restrictions around the country.
And once again, a term had ended in which Justice Anthony Kennedy dominated the cases that divided the Court most closely. There were sixteen 5–4 decisions out of seventy-three cases, and Kennedy was in the majority in eleven. Of the eleven in which the Court split along ideological lines, Kennedy voted with the conservatives in eight and the liberal justices in three. And once again, as they had for most of the five years of the Roberts Court, the media, legal scholars, and others declared it the “Kennedy Court.”
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I An early, secretive English court that became a symbol of the abuse of power.
CHAPTER 14
“If I wanted to sponsor a bill and it said, ‘Americans, you have to eat three vegetables and three fruits every day,’ and I got it through Congress, and it’s now the law of the land, got to do it, does that violate the commerce clause?”
—Senator Thomas Coburn (R-OK), 2010
The last day of the term was the first day of the Senate hearings on the nomination of Elena Kagan to the seat formerly held by John Paul Stevens. The hearings were striking not because anything revealing was learned about the nominee, but because they appeared to be the first time in years that Republican and Democratic members of the Judiciary Committee had coherent and consistent messages to convey.
“When [Joseph Biden] was chair, he made no effort to coordinate the message; he left it up to everybody,” recalled a former committee lawyer. “The next chairman is [Patrick] Leahy and he made it a priority. It was something Leahy felt was very, very important and he wanted to do that.”
While the confirmation hearings for Justice Sonia Sotomayor focused on guns
, property rights, the “wise Latina” speech, and the New Haven firefighters case, the Kagan hearings were, for the Republicans, about the health care law, and for the Democrats, the pro-business Roberts Court in general and Citizens United in particular.
That the Republican members had health care on their minds was evident in questions, for example, by Senator Thomas Coburn of Oklahoma, who asked Kagan if Congress could pass and the president sign a law requiring Americans to eat a certain number of vegetables a day—a veiled reference to the broccoli mandate that challengers to the health care law were using to undermine the law’s constitutionality.1
Besides that being a “dumb law,” Kagan responded, “I think that there are limits on the commerce clause . . . which are the ones that were articulated by the court in Morrison and in Lopez, which are primarily about non-economic activity and Congress not being able to regulate non-economic activity.
“I guess the second point I would make is I would look to Gibbons v. Ogden, where Chief Justice [John] Marshall did, in the first case about these issues, essentially read that clause broadly and provide real deference to legislatures and provide real deference to Congress about the scope of that clause, not that the clause doesn’t have any limits, but that deference should be provided to Congress with respect to matters affecting interstate commerce.”
Coburn later asked her directly, “Was there any time [when] you were asked in your present position to express an opinion on the merits of the health care bill?”
