At a minimum, the conflict between Scalia and Stevens underlined the difficulty of determining any single meaning of the intentions of the framers, more than two centuries after the fact. By eighteenth-century standards, the men who gathered were a diverse group. They had different ideas about what their work meant, as did the state legislators who ratified their work. On many provisions, they compromised; on others, they left their words intentionally vague. Often, there is no single “original intent” or “original meaning.” Moreover, for all that the framers quarreled over the wording of the Constitution, they never indicated that they understood their intentions should bind future generations. All that mattered, they thought, was the Constitution itself.
Even Scalia’s originalist approach could not settle all the issues in Heller. The Court concluded that the Second Amendment protected an individual’s right to keep and bear arms, but that still raised the question: which arms? A true originalist would identify which arms the framers believed were protected and then find their twenty-first-century analogue. But here Scalia ran into a problem. In the eighteenth century, militias required civilians to obtain military weapons. In the Uniform Militia Act of 1792, Congress compelled militia members to purchase muskets, bayonets, and other weapons that were needed in military combat. The true originalist would, presumably, assert that the Constitution protected an individual right to possess military weapons. But Scalia limited his ruling for the Court in Heller to handguns. He said D.C. could not ban handguns because “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Scalia translated a right to military weapons in the eighteenth century to a right to handguns in the twenty-first. He never explained his rationale, but the reason was obvious. It would be intolerable to allow individuals to purchase tanks, bazookas, Stinger missiles, and other modern weapons of war. So, with little explanation, Scalia wrote those kinds of weapons out of the Second Amendment. He affirmed “the historical tradition of prohibiting the carrying of dangerous and unusual weapons” and noted further that “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
With those limitations, what was left of Heller? It forbade the federal government from banning the possession of handguns in the home. It was not clear that it did much else. It was clear, on the other hand, that for all its rhetoric and historical citations, Scalia’s decision had little to do with the original meaning of the Second Amendment. It was an improvisation designed to reach a policy goal, which was, not coincidentally, one of the top priorities of the modern Republican Party.
Heller was, in the end, very similar to the decisions most hated by conservatives. In Roe v. Wade, Blackmun found a right to privacy that (in his view) protected a woman’s right to abortion up to the time a fetus was viable. In Grutter, O’Connor said that (in her view) affirmative action in university admissions could continue for another twenty-five years. In Heller, Scalia discovered a Second Amendment that (in his view) said yes to handguns and no to machine guns. His view was strikingly similar to the one Barack Obama advocated on the campaign trail. Both Scalia and Obama endorsed a Second Amendment that protected individual rights to own handguns but with limitations on more dangerous weapons. The difference was that only Scalia pretended the framers had dictated the result.
Heller represented the culmination of a political, legal, and public relations offensive that was many years in the making. Scholars, lawyers, politicians, and activists created a new understanding of the Second Amendment that eventually commanded five votes on the Supreme Court. Notwithstanding his denials, Scalia had demonstrated precisely how the Constitution is not dead at all—but a vibrant, living thing. In other words, there was less to the originalism revolution than met the eye. Originalism was no more principled or honorable than any other way of interpreting the Constitution. It was, as Heller demonstrated, just another way for justices to achieve their political goals.
9
THE UNREQUITED BIPARTISANSHIP OF BARACK OBAMA
On December 5, 2008, Roberts sent Obama an invitation. With characteristic care, the chief justice researched how he should address Obama and came up with: “Dear Mr. President-elect.” The letter began:
Through the years, our respective predecessors have occasionally arranged a pre-inaugural meeting between the President-elect and Members of the Supreme Court, so that colleagues in public service might become better acquainted.
The Associate Justices and I would be pleased to see that sporadic practice become a congenial tradition. We cordially invite you and Vice President-elect Biden to visit us at the Supreme Court.
If your schedule permits such a visit, you will receive a warm welcome from the Members of the Court as you prepare to undertake your important responsibilities on behalf of the American people.
Ronald Reagan and George Herbert Walker Bush had met with the justices shortly before they took office in 1981, and Bill Clinton followed suit in late 1992. (The punctilious William Rehnquist long remembered that Clinton was forty-five minutes late for his visit; Clinton had such a good time that he also stayed a half hour late.) Roberts’s gesture was especially gracious, because both Obama and Biden had voted against his confirmation three years earlier.
At 3:45 p.m., on January 14, 2009, eight justices greeted the president- and vice president-elect in the West Conference Room of the Court. (Alito did not attend, even though he had been at oral arguments that morning.) Biden was the only person who knew everyone present. He had served on the Judiciary Committee since 1977 and had voted on the confirmation of all nine current justices. After a few initial pleasantries, Roberts made a pitch that he had coordinated with his colleagues. Judicial salaries had been stagnant for about a decade; lower-court judges were leaving the bench to pay for college tuitions. As a Washington veteran, Roberts knew that a personal appeal on this kind of issue would certainly have an impact and might make a difference. Greg Craig, an old Washington hand himself, and the White House counsel designate, had warned Obama that Roberts might bring up the topic. Obama said he supported a raise for federal judges, but he knew it would be a tough sell to Congress, especially in hard economic times. (The raise never happened.)
Roberts offered to show the pair his chambers, where the Court takes its votes in secret. They filed from the West Conference Room—which is one of the Court’s public spaces, often used for receptions—through the Great Hall, with its busts of chief justices, into the private realm of the justices. Like most of his recent predecessors, Roberts keeps a small office directly behind the bench in the courtroom. It’s next door to the conference room, which is still dominated by the massive desk where Charles Evans Hughes once presided.
The inner sanctum impressed Obama and Biden, as it does most everyone. The project to renovate the Court building, begun by Rehnquist, had nearly been completed. Warren Burger, in his day, had installed rows of fluorescent bulbs in the ceiling of the conference room, but Kennedy (the chair of the Court’s building committee) had found historically accurate chandeliers as replacements. Double-paned windows (highly resistant to most kinds of ammunition) gave the room a soft glow and distinct hush. After inspecting the Hughes desk, Obama lingered by the simple rectangular wooden table, with its nine chairs, that is the tangible symbol of the work of the Court. Like the President’s Oval Office, the Supreme Court’s conference table represents the power of the institution—and its mystique may be even greater because it is seen, especially in person, by so few.
“Is this where they decided Brown?” Obama asked.
Indeed it was, Roberts told him.
Toward the end of the meeting, Kennedy mentioned that there was a basketball court on the top floor of the Court buil
ding. “We hear you’re a basketball player,” Kennedy told Obama. “We’d like you to come play on the highest court in the land.”
“I don’t know,” Obama said. “I hear that Justice Ginsburg has been working on her jump shot.”
Six days later, Roberts performed the oath ceremony with Obama at the Capitol, and seven days later they had their repeat performance in the Map Room, at the White House. On January 26, Roberts presided over the installation of the new leader of the Smithsonian Institution. “Those of you who have read it will see from the program that the Smithsonian some time ago adopted the passing of a key in lieu of the administration of an oath,” Roberts said. “I don’t know who was responsible for that decision. But I like him.”
The work of the new administration began. On the morning of January 29, a raucous, almost giddy crowd filled the East Room, the location for the most formal and important occasions at the White House. Just after ten, the disembodied voice of an announcer silenced the audience. “Ladies and gentlemen,” it said, “the President of the United States, accompanied by Mrs. Lilly Ledbetter.”
Side by side, along the red carpet, Obama and Ledbetter walked slowly to the podium, while the audience stood, whooped, and hollered. “This is a wonderful day,” Obama began. More applause. “First of all, it is fitting that the very first bill that I sign—the Lilly Ledbetter Fair Pay Restoration Act”—more applause, even louder—“that it is upholding one of this nation’s founding principles: that we are all created equal, and each deserve a chance to pursue our own version of happiness.”
The bill to overrule Alito’s 2007 opinion in the Ledbetter case had been pending throughout the final year of the Bush administration, but Republicans had blocked it. In early January 2009, the new Congress finally passed the bill. The margins were 61–36 in the Senate and 247–171 in the House.
“Lilly Ledbetter did not set out to be a trailblazer or a household name,” Obama told the crowd in the East Room. “She was just a good hard worker who did her job—and she did it well—for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work. Over the course of her career, she lost more than $200,000 in salary, and even more in pension and Social Security benefits—losses that she still feels today.
“Now, Lilly could have accepted her lot and moved on. She could have decided that it wasn’t worth the hassle and the harassment that would inevitably come with speaking up for what she deserved. But instead, she decided that there was a principle at stake, something worth fighting for. So she set out on a journey that would take more than ten years, take her all the way to the Supreme Court of the United States, and lead to this day and this bill which will help others get the justice that she was denied.”
Behind the new President, Joe Biden wiped tears from his eyes. Ruth Bader Ginsburg did not attend the proceedings, but she followed the fate of the Ledbetter bill with considerable interest, and greater pride.
Obama took office facing a wider range of challenges than any other president since Franklin Roosevelt. There were two wars and an economic collapse; there were restless Democratic majorities in both houses of Congress eager to put their stamp on a variety of issues, including health care, immigration, and climate change. Considering these burdens, it would not have been surprising if the new administration treated the issue of judicial nominations as a less than pressing priority.
That is precisely what happened. Indeed, a variety of other factors combined to give the issue even less attention than it might otherwise have received. Greg Craig had not sought the job of White House counsel. During the Clinton administration, he had watched that office become bogged down in fending off investigations by hostile Republicans, and at the age of sixty-three he had no longing for such enervating duties. He’d rather have worked in the State Department. But Craig didn’t believe in turning down requests from presidents, so he took the job. Obama also asked Craig to find a place on his staff for Cassandra Butts, one of the president’s law school classmates, who had also worked on the campaign. Craig agreed, and she became the deputy general counsel in charge of judicial nominations.
The problems began almost immediately. Through his years with Senator Edward Kennedy and later in the Clinton State Department, Craig had developed a special interest in international human rights. He made a personal mission of fulfilling Obama’s oft-repeated campaign promise to close the detention facility at Guantánamo Bay. Craig’s fixation with Guantánamo brought him into conflict with Rahm Emanuel, Obama’s chief of staff. Emanuel believed the president’s top priority (as well as his own) was to push Obama’s legislative agenda through Congress, starting with the economic stimulus bill and then health care reform. Emanuel regarded Guantánamo as a distraction that could only alienate members of Congress, where Obama’s margins were tiny. In those first months, there were fifty-nine Democrats in the Senate, and Republicans were filibustering on virtually everything, meaning the president needed sixty votes to pass bills. Obama had to claw for every vote he could get, and Emanuel—who was famously profane and opinionated—thought Craig was making the president’s job harder. Craig believed he was simply doing the work the president hired him to do. In short order, Emanuel and Craig loathed each other.
Butts did not have an easy time either. Craig had assembled a staff that was heavy on the qualifications that were valued at his law firm, Williams & Connolly. That meant an abundance of young, self-confident Supreme Court law clerks. Butts had gone to Harvard but she had spent much of her career on Capitol Hill, working longest for Congressman Richard Gephardt. In the recondite status hierarchies of the legal profession, Butts occupied a somewhat lower plane than the A students favored by Craig. There were tensions between Butts’s and Craig’s other underlings, who traded whispered complaints about arrogance and incompetence. Susan Davies, who worked under Butts on judicial nominations, had clerked for both Kennedy and Breyer and then served on Patrick Leahy’s staff on the Judiciary Committee. Davies and Butts embodied the internal culture clash.
Butts, and thus Obama, also had difficulties with the Senate. By long-standing tradition, senators of the president’s party controlled district court nominations in their states. It had been almost a decade since Democratic senators had had a chance to pick judges. Many were slow to put machinery in place to do so, and the senators also bristled at the Obama demand that they submit three names (instead of just one name) for every vacancy. The process stalled. Weeks, then months, passed.
George W. Bush had made a splashy show of his first set of judicial nominations. On May 9, 2001, Bush assembled his first eleven selections in a ceremony in the East Room. The group included two nominees to the D.C. Circuit, John Roberts and Miguel Estrada. (Democrats stalled Roberts’s nomination for two years before confirming him; Estrada was filibustered by Democrats and ultimately defeated.) Those two, as well as nominees like Terrence Boyle (a former aide to Senator Jesse Helms) and Jeffrey Sutton (a former Scalia clerk) indicated that Bush would work hard to put a conservative cast on the federal judiciary. The public nature of the occasion served as a clear demonstration of the centrality of judicial appointments in a Republican administration. It showed the voters and the Senate that Bush cared about his judges.
Obama took a different approach. He knew that Bush’s high-profile announcement of his first nominees was intended, and taken, as a provocation to his political adversaries. Obama preferred to try to lower the political temperature. He thought it would be better to start with a single, uncontroversial choice that would burnish his postpartisan credentials. In this way, he could show his good faith to Senate Republicans and expect similar fair dealing in return. So Obama wanted a first nominee who was sure to have Republican support.
As it turned out, there was a perfect candidate lined up. On March 17, 2009, President Obama nominated David Hamilton, the chief federal district court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been
vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton’s appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself. What could go wrong?
Almost everything. Not for the last time, Obama misread the political environment in the Senate. As they put it in the White House, “Hamilton blew up.” Conservatives seized on a 2005 case in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. By the time Patrick Leahy, the chairman of the Judiciary Committee, scheduled a vote on Hamilton, in June, the best he could muster was a straight party-line vote, 12–7, in favor of the nomination. (Months of delay followed. The nomination did not reach the Senate floor until November 19, and Hamilton was confirmed by a vote of 59–39.) Obama had chosen the Hamilton nomination to send a message, but he wound up receiving one instead. Republicans cared about the courts.
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