The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  I owe a special thanks to Paul Smith of Jenner & Block and Greg Garre of Latham & Watkins. Both men head their firm’s Supreme Court and appellate practices. They shared their experiences as practitioners and “students” of the Court during the early stages of this book and gave me invaluable context as I started on this journey.

  This book simply would not have been possible without the support of David Brown, the editor in chief of The National Law Journal. From day one, he backed the project, juggled my schedule, exuded confidence in me, listened and offered suggestions when I got stuck in the writing, and made the impossible possible. “Thank you” just doesn’t seem enough, David, but it is heartfelt. My colleague, Tony Mauro, generously bore more than his share of our newspaper duties when I took time to write. Without his willingness to do so, my task would have been much harder. I hope to return the favor some day. Another longtime colleague, Joan Biskupic, author of two books, one on Justice Sandra Day O’Connor and the other on Justice Antonin Scalia, was a valuable sounding board, offering advice when asked and encouragement when needed.

  My cousin Paula Russo gave up many of her summer evenings to reading draft chapters. What a trouper! She gave excellent, detailed suggestions for clarifying legalese and explanations of decisions. Her input was invaluable and I am indebted to her. Thanks also go to Doug Kmiec of Pepperdine University School of Law for being a reader when I asked.

  The entire team at Simon & Schuster impressed me from the beginning with their professionalism and commitment. The publisher, Jonathan Karp, and my editor, Alice Mayhew, never wavered in their enthusiasm for the project. Before meeting her, I had heard of Alice Mayhew’s reputation as one of the best editors in publishing. It was an honor to work with her and I was humbled by her confidence in and patience with a first-time book writer. Her assistant, Jonathan Cox, kept me on schedule, handled many details associated with producing a book, and always answered my questions swiftly and thoroughly. I could not have had better support throughout the process. My agent, Rafe Sagalyn, was my window into this new world of book publishing and provided sage advice and support. He was never intrusive but I always knew he was there if and when needed.

  I also am very grateful to my entire family, not just my immediate family, for their interest and support along the way. No one could ask for better cheerleaders. My most indefatigable cheerleader, my mother, died shortly before the book was finished, and with her death went the certainty of at least one glowing review, and so much more.

  Finally, this book is for the many people who have written to and e-mailed me over the years, often after my appearances on PBS News-Hour, because they were eager to know more about this institution that is so critical a player in our democracy. The late Justice Harry Blackmun, after being interviewed on C-SPAN many years ago, told me that he did not think the Supreme Court should be a great mystery to the American people. I hope this book makes it less mysterious to all who read it.

  © DIEGO M. RADZINSCHI/NATIONAL LAW JOURNAL

  MARCIA COYLE is the chief Washington correspondent for The National Law Journal. As a lawyer and journalist, Coyle has covered the Supreme Court for twenty-five years. She regularly appears on the PBS NewsHour. She has earned numerous national journalism awards, including the George Polk Award for legal reporting.

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  NOTES

  The author conducted interviews with current and retired justices and former clerks from June 2011 through July 2012. Those interviews were on background, meaning that their comments could be used but without their names. In certain instances, Justices Antonin Scalia and John Paul Stevens agreed to have portions of their interviews on the record.

  INTRODUCTION

  1. H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics. University of Chicago Press, 2002, rev. ed. 2005, p. 6.

  2. Morgan Smith, “One Man Standing Against Race-Based Laws,” Texas Tribune (republished in New York Times, Feb. 23, 2012).

  3. Greg Stohr, “Roberts Supreme Court’s Partisan Split Shows New Justices Are Predictable,” Bloomberg News, quoting Barbara Perry of University of Virginia’s Miller Center of Public Affairs, July 1, 2011.

  4. Joan Biskupic, “Justice Ginsburg Reflects on Term, Leadership Roles,” USA Today, July 2, 2011.

  5. Author interview with Theodore Olson, July 2011.

  6. Jack Balkin, “High Politics and Judicial Decisionmaking,” Balkinization, May 4, 2003.

  7. Associate Justice Antonin Scalia, Fox News Sunday, July 29, 2012.

  8. Associate Justice Stephen G. Breyer, “The Work of the Supreme Court,” Amer. Acad. of Arts & Sci., September–October 1998, p. 47.

  9. “A Conversation with David Souter: How Does the Constitution Keep Up with the Times?” New Hampshire Supreme Court Society, Sept. 14, 2012.

  PART 1: RACE

  CHAPTER 1

  1. Author telephone interview with James Ho, former clerk to Justice Clarence Thomas, September 2011.

  2. “Gold Stripes: Chief Justice Rehnquist’s Final Interview,” NBC News, Sept. 4, 2005.

  3. Author’s interview with Justice Antonin Scalia, July 2011.

  4. Author’s interviews with justices, June 2011–July 2012.

  5. Alex Markel, “Why Miers withdrew as Supreme Court nominee,” National Public Radio, quoting conservative leaders on their opposition to Harriet Miers, Oct. 27, 2005.

  6. George W. Bush, Decision Points (Crown, 2010), p. 98.

  7. Senate Judiciary Committee Hearing on the Nomination of John Roberts Jr., Sept. 12–15, 2005; first session, p. 170.

  8. Ibid., p. 144.

  9. Ibid., p. 454.

  10. Hope Yen, “Roberts Seeks Greater Consensus on Court,” Washington Post, May 21, 2006, speech to Georgetown University Law Center graduates.

  CHAPTER 2

  1. Author’s telephone interview with David Engle, May 2011.

  2. Author’s interview with Kathleen Brose, head of Parents Involved in Community Schools, February 2011.

  3. Magnolia Chamber of Commerce, 2000 Census figures.

  4. Douglas Judge, “Housing, Race and Schooling in Seattle: Context for the Supreme Court Decision,” Western Washington University Journal of Educational Controversy, vol. 2, Winter 2007.

  5. Author’s interview with Joseph Olchefske, former superintendent of Seattle public schools, May 2011.

  6. Parents Involved in Community Schools v. Seattle School District No. 1, 426 F.3d 1162 (CA9 2005).

  7. Nina Totenberg, “Supreme Court to Weigh Schools’ Racial Plans,” National Public Radio, Dec. 4, 2006.

  8. Meredith v. Jefferson County Board of Education, Brief for respondent on the writ of certiorari.

  9. Press conference statement by Crystal Meredith, June 28, 2007.

  10. James E. Ryan, “The Supreme Court and Voluntary Integration,” Harv. L. Rev., 131 (2007), p. 121.

  11. Ibid., p. 140.

  12. Michael Klarman, “Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?” Symposium on Race and the Supreme Court, scotusblog, Feb. 1, 2010.

  CHAPTER 3

  1. Author’s interview with Kathleen Brose, February 2011.

  2. Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (W. W. Norton, 2005), pp. 40–41.

  3. Author’s interview with Harry Korrell of Davis Wright Tremaine, February 2011.

  4. Author’s telephone interview with Sharon Browne of the Pacific Legal Foundation, March 2011.


  5. Keith Ervin, “Parents Challenge Seattle District on Racial ‘Tiebreaker,’ ” Seattle Times, July 19, 2000.

  6. Author’s interview with Michael Madden of Bennett Bigelow & Leedom, February 2011.

  7. Jenni Laidman, “Order from the Court,” Louisville Magazine, March 2009, p. 52.

  8. Ibid., p. 55.

  CHAPTER 4

  1. Comfort v. Lynn School Committee, 418 F.3d 1 (CA1 2005).

  2. Author’s interview with Sharon Browne of the Pacific Legal Foundation, March 2011.

  3. Author’s interview with Michael Madden, February 2011.

  4. Senate Judiciary Committee Hearing on the Nomination of Samuel Alito Jr., Jan. 9–13, 2006, p. 40.

  5. Adam Liptak, “Few Glimmers of How Conservative Judge Alito Is,” New York Times, Jan. 13, 2006.

  6. George W. Bush, Decision Points, Crown, 2010, p. 102.

  7. Author’s interview with Walter Dellinger of O’Melveny & Myers, May 2011.

  8. Author’s interview with Michael Madden, February 2011.

  9. Jessica Blanchard, “Supreme Court to Hear Seattle Schools Race Case,” Seattle Post-Intelligencer, June 5, 2006.

  10. National Review Online, June 6, 2006.

  11. A Conversation with Justice Ruth Bader Ginsburg, Ohio State University Moritz College of Law, symposium on the Jurisprudence of Justice Ruth Bader Ginsburg, April 10, 2009.

  12. Analyses of 2005–06 voting patterns of justices by Thomas Goldstein, scotusblog.

  CHAPTER 5

  1. Author’s interview with Michael Madden, February 2011.

  2. Scribes Journal of Legal Writing (2010), interviews with the justices.

  3. Ibid.

  4. Author’s interview with Harry Korrell, February 2011.

  5. Author’s interview with Sharon Browne, March 2011.

  6. Author’s interview with Theodore Olson, July 2011.

  7. Seth Waxman, Solicitor General of the United States, “Presenting the Case of the United States as It Should Be: The Solicitor General in Historical Context,” Address to the Supreme Court Historical Society, June 1, 1998.

  8. Author’s interviews with former Department of Justice attorneys.

  9. Author’s interview with Michael Madden, February 2011.

  10. Jeffrey Toobin, “After Stevens,” New Yorker, March 22, 2010.

  11. Author’s interviews with justices.

  12. Author’s interview with Justice Antonin Scalia, July 2011.

  CHAPTER 6

  1. Ledbetter v. Goodyear Tire & Rubber Co., rejecting the long-standing policy of the Equal Employment Opportunity Commission, held that Title VII’s statute of limitation period (180 or 300 days) for filing a pay bias charge begins to run when “each allegedly discriminatory pay decision was made and communicated” to the employee and does not start over with each later paycheck;

  Hein v. Freedom From Religion Foundation: An old precedent permitting limited taxpayer standing to challenge government expenditures in violation of the First Amendment’s establishment clause does not allow challenges to the Bush administration’s use of federal funds to support its Office of Faith-Based and Community Initiatives program.

  National Association of Home Builders v. Defenders of Wildlife: The consultation requirement in the Endangered Species Act does not apply to the Environmental Protection Agency’s transfer of water permitting authority to states under the Clean Water Act.

  2. Morse v. Frederick, 551 U.S. 393 (2007), Thomas concurring.

  3. Ayers v. Belmontes, 127 S.Ct. 469 (2006), Scalia, joined by Thomas, concurring.

  4. Author’s interview with John Payton, February 2011.

  5. Adam Liptak, “The Same Words, but Differing Views,” New York Times, June 29, 2007.

  6. Fisher v. University of Texas-Austin, No. 11-345, argued Oct. 10, 2012.

  7. Marcia Coyle, “Prevailing Winds: In the First Full Term with Alito, Court Took Marked Conservative Turn,” National Law Journal, Aug. 1, 2007.

  PART 2: GUNS

  CHAPTER 7

  1. U.S. v. Emerson, 270 F.3d 203 (CA5 2001).

  2. U.S. v. Miller, 307 U.S. 174 (1939).

  3. John Ashcroft, Attorney General of the United States, Letter to James Jay Baker, executive director, National Rifle Association, Institute for Legal Action, May 17, 2001.

  4. John Ashcroft, Memorandum to All United States’ Attorneys, Nov. 9, 2001.

  5. Author’s interview with Clark Neily, September 2010.

  6. Author’s interview with Robert Levy, September 2010.

  7. Author’s telephone interview with David Lehman, September 2010.

  8. Author’s interview with Alan Gura, September 2010.

  9. Author’s telephone interview with Stephen Halbrook, September 2010.

  10. Author’s telephone interview with Dennis Henigan, September 2010.

  11. Parker v. District of Columbia, 311 F. Supp. 2d 163 (2004).

  12. Parker v. District of Columbia, 478 F.3d 370 (CA D.C. 2007).

  13. Author’s telephone interviews with Dick Heller and Dan Von Breichenruchardt, November 2010.

  14. David Nakamura and Robert Barnes, “Appeals Court Guts Strict D.C. Handgun Law,” Washington Post, Feb. 11, 2007.

  15. Christine Hauser, “Virginia Tech Shooting Leaves 33 Dead,” New York Times, April 16, 2007.

  CHAPTER 8

  1. Antonin Scalia, A Matter of Interpretation (Princeton: 1997), pp. 136–137, note 13.

  2. Author’s interview with Alan Morrison, September 2010.

  3. District of Columbia v. Dick Anthony Heller, Petition for a writ of certiorari, 07-290.

  4. District of Columbia v. Dick Anthony Heller, Brief in response to petition for writ of certiorari, 07-290.

  5. Hamdi v. Rumsfeld, 543 U.S. 507 (2004); Rumsfeld v. Padilla, 542 U.S. 426 (2004); Rasul v. Bush/Al Odah v. U.S., 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

  6. Robert Barnes, “Administration Rankles Some with Silence in Handgun Case,” Washington Post, Jan. 20, 2008.

  7. Dick Cheney, In My Time (Simon & Schuster, 2011), p. 495.

  8. Author’s telephone interview with Peter Nickles, September 2010.

  9. Author’s interview with Walter Dellinger, September 2010.

  10. Paul Collins Jr., Friends of the Supreme Court: Interest Groups and Judicial Decisionmaking, New York: Oxford University Press, 2008; Marcia Coyle, “Amicus Briefs are Ammo for Gun Case,” National Law Journal, interview with Paul Collins Jr., March 10, 2008.

  CHAPTER 9

  1. Author’s interview with Justice Antonin Scalia, July 2011.

  2. Randy Barnett, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism,” William Howard Taft Lecture at the University of Cincinnati College of Law, Feb. 2, 2006.

  3. Stephen Breyer, Making Our Democracy Work (Random House, 2011), pp. 80–81.

  4. Scribes Journal of Legal Writing (2010).

  5. “Notebook: Alito Is a Springsteen Fan,” Associated Press, Jan. 9, 2006.

  6. “Civil Rights: The Heller Case.” Minutes from a Convention of the Federalist Society, Nov. 20, 2008.

  7. J. Harvie Wilkinson III, “Of Guns, Abortions, and the Unraveling Rule of Law,” Va. L. Rev. 95, no. 2, April 2009.

  8. Richard A. Posner, “In Defense of Looseness: The Supreme Court and Gun Control,” New Republic, Aug. 27, 2008.

  9. Village of Morton Grove Handgun Ordinance, Morton Grove Public Library, July 29, 2008, www.webrary.org/ref/handgun.html.

  10. Author’s telephone interview with Dan Staackmann, Morton Grove Village president, August 2011.

  PART 3: MONEY

  CHAPTER 10

  1. Author’s interviews with David Bossie, April and May 2011.

  2. George Lardner Jr. and Juliet Eilperin, “Burton Apologizes to GOP,” Washington Post, May 7, 1998.

  3. Glen Elsasser, “And the Last Shall Be 51st,” Chicago Tribune, November 22, 1993.

  4. Author’s interviews with Michael Boos, Apri
l and May 2011.

  5. Federal Election Campaign Laws: A Short History, www.fec.gov/info/appfour.gov.

  6. Adam Liptak, “Justice Defends Ruling on Finance,” New York Times, Feb. 4, 2010.

  7. Richard L. Hasen, “Citizens United and the Illusion of Coherence,” Richard L. Hasen, 109 Mich. L. Rev., 581 (2011).

  8. Ibid.

  9. Eric Lichtblau, “Long Battle by Foes of Campaign Finance Rules Shifts Landscape,” New York Times, Oct. 15, 2010.

  CHAPTER 11

  1. Author’s interview with James Bopp Jr., May 2011.

  2. Author’s interviews with David Bossie, April and May 2011, and with James Bopp Jr., May 2011.

  3. California’s Proposition 8, also known as the California Marriage Protection Act, was a ballot initiative approved by voters in 2008 that amended the state constitution to prohibit same-sex marriage.

  4. Author’s telephone interview with Theodore B. Olson, July 2011.

  5. Barry Meier, “A New Round in a Long Coal Battle,” New York Times, Nov. 9, 2010.

  6. Marcia Coyle, “High Court Review Sought on Judicial Recusals,” National Law Journal, Aug. 4, 2008.

  7. Caperton v. A.T. Massey Coal Co., Petition for a writ of certiorari, No. 08-22.

  8. The Voting Rights Act of 1965, History of Federal Voting Rights Laws, U.S. Department of Justice, Civil Rights Division.

  9. The two cases backed by Edward Blum in the 2012–13 Supreme Court term are Fisher v. University of Texas-Austin and Shelby County, Ala. v. Holder.

  CHAPTER 12

  1. The decision was Maloney v. Cuomo, a ruling by a three-judge panel of the U.S. Court of Appeals for the Second Circuit. Sotomayor was on the panel that rejected a man’s claim that a New York ban on the martial arts weapon, nunchaku, violated the Second Amendment.

  2. David Savage and James Oliphant, “Senate Set to Begin Sotomayor Debate; NRA is urging senators to vote against the Supreme Court nominee,” Los Angeles Times, Aug. 4, 2009.

  3. Warren Richey, “Sotomayor: ‘Wise Latina’ a bad choice of words,” Christian Science Monitor, July 14, 2009.