The Oath

by Jeffrey Toobin

  The point of this grotesque catalogue was to assert that the Eighth Amendment prohibited methods of execution that were also forms of torture—nothing more. Such a standard meant that Thomas ignored decades of precedent. Over the years, the Court had vetoed the imposition of “hard and painful labor,” rejected disproportionate sentences for minor crimes, abolished the death penalty for rape, and outlawed life sentences for juveniles convicted of crimes other than murder. Under Thomas’s narrow reading of the Eighth Amendment, all these cases would be wrong; under his understanding of stare decisis, all would be overturned.

  It is Thomas’s approach to stare decisis—the rule of precedent—that most distinguished Thomas from his colleagues, even Scalia. “You have to remember that we are the court of last resort,” he told the students at the recent speech in Florida. “I always ask people, ‘What would you do with Plessy v. Ferguson, which was sixty years old?’ ” That case, from 1896, affirmed the racial doctrine of separate but equal, until it was effectively overruled by Brown v. Board of Education in 1954. “If it’s wrong, the ultimate precedent is the Constitution. And it’s not what we say it is, it’s what it actually says, and I think we have to be humble enough to say we were wrong,” Thomas said.

  All justices would like to see some precedents overturned, and certainly, in the modern era, all agree that the Court was right to overturn Plessy in Brown. Thomas differed with his colleagues in the sheer number of cases he wanted to overturn. He paid far less deference to prior rulings than anyone else on the Court. As he said, “If it’s wrong, it’s wrong, and we are obligated to revisit it.”

  This is a different approach from the traditional conservative position, which stressed the importance of stare decisis—of relying on precedent. As Roberts put it during his confirmation hearings, “Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.” (Whether Roberts, as chief justice, actually honored that sentiment was another question.) Thomas, though, made little pretense of relying on the words of his colleagues and his predecessors when their interpretations conflicted with his own understanding of the Constitution’s text.

  From the moment he arrived on the Court, he was a committed originalist; he believed the Constitution should be interpreted as the words were understood by the men who wrote it. “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning,” Thomas wrote in an opinion from 2005. Scalia was the figure most often associated with this school of thought, but he referred to himself as a “fainthearted originalist.” Scalia meant that other factors besides his own understanding of the intent of the framers, especially the long-established precedents of the Court, influenced his resolution of constitutional disputes. “If a constitutional line of authority is wrong, Thomas would say let’s get it right,” Scalia told a reporter in 2004. “I wouldn’t do that. He does not believe in stare decisis, period.” In other words, there is nothing fainthearted about Thomas’s convictions about the meaning of the Constitution. His understanding of the framers’ intent trumps everything.

  Thomas’s approach to the Eighth Amendment underlined some of the problems with his approach to the Constitution, and with originalism. Only two justices, Thomas and Scalia, built their jurisprudence around originalism (one of them faintheartedly), so its full adoption would require the trashing of dozens, if not hundreds, of Court precedents. Further, notwithstanding Thomas’s enduring certainties, it was difficult to know what the framers would have thought of any given situation in the modern world. (Alito, a conservative but not a full-fledged originalist, captured this problem nicely in the oral argument about a California law on violent video games. Following up on a series of questions by Scalia, Alito said to the lawyer, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”) It was true, too, that the framers often disagreed profoundly with one another, making a single intent behind any constitutional text even more difficult to discern. The twenty-seven amendments (each with its own framers) created another overlay of opinion. For all of Thomas’s conviction, originalism was just another kind of interpretation, revealing as much about Thomas as about the framers’ intentions.

  Ginni Thomas’s outspoken criticism of Obama, and especially his health care plan, prompted a new round of questions about Justice Thomas’s ethics. Based on Ginni’s activities, seventy-four members of Congress called on Thomas to recuse himself from any legal challenges to the health care law. To make matters worse, he was compelled to amend several years of the financial disclosure forms that Supreme Court justices must file each year. The document requires the justices to disclose the source of all income earned by their spouses. Thomas failed to list Ginni’s work for Hillsdale College and at the Heritage Foundation.

  The Supreme Court operates in a peculiar ethical netherworld. The federal statute governing judicial conflicts of interest covers only lower-court judges. On the question of recusal, the law is clear that such a decision is entirely up to Thomas; the Supreme Court basically operates on an honor system. The tradition among the justices has been to avoid recusal if at all possible. Recusals at the Supreme Court raise the distasteful possibility of 4–4 ties, because, unlike in the lower courts, there is no mechanism for bringing in substitute judges.

  Thomas was clearly within his rights to ignore calls for his recusal in the health care case. Ginni Thomas had been a political activist for decades, even before she met Clarence Thomas. This was her job; she was not obliged to quit because her husband became a judge. The Thomas family had no obvious or direct financial stake in the outcome of the health care case. The attempt to drive Thomas off the case was politically motivated. Democrats perceived Thomas as hostile to the health care law and thus tried to get rid of his vote. (To Thomas’s good fortune, the leader of the effort was Representative Anthony Weiner, who was soon forced to resign because of a sex scandal.) As for Thomas’s failure to list Ginni’s employment on the disclosure forms, the error seemed sloppy rather than sinister. Her work was widely known, and, in any event, the law did not establish a punishment for mistaken filings.

  If Ginni’s activities did not disqualify her husband from the case, they were still extremely significant—and highly complementary to Justice Thomas’s agenda on the bench. In their own ways, Ginni and Clarence Thomas helped build the intellectual infrastructure opposing President Obama’s agenda. Ginni did her best to derail the health care plan when it came up for a vote in Congress. Justice Thomas had his chance when the law came before the Supreme Court. Even more than gun control and campaign regulation, the health care case reflected the issues at the core of Thomas’s judicial career.

  ——

  Early in the New Deal, the Supreme Court struck down several of President Roosevelt’s signature initiatives as violating the commerce clause of the Constitution. If the law did not directly affect commerce “among the several states,” in the words of Article I, the Court said that Congress had no right to pass it. FDR responded to these setbacks with his infamous court-packing plan, but a change of heart by Justice Owen J. Roberts in 1937, followed by Roosevelt’s own appointments to the Court, transformed the understanding of that provision. In a series of cases, the justices gave Congress essentially unlimited power to regulate the national economy. In 1942, the Court said in Wickard v. Filburn that the federal government could regulate the amount of wheat grown on a farm, even if none of the wheat was sold across state lines, or even if no wheat was sold at all. The opinion stated that since the production of wheat, taken in aggregate, did affect interstate commerce, the regulation was permissible. After that, the issue of the commerce clause more or less vanished from the Supreme Court’s docket for decades—until Thomas and the Tea Party brought it b
ack to life.

  Tea Party partisans embraced the ideas of the pre–New Deal Court and rejected Wickard and the decades of decisions that followed. As the journalist Kate Zernike wrote in her book Boiling Mad: Inside Tea Party America, “In the originalist view, and the Tea Party view, the perversion of the Constitution took off during the presidency of Franklin Delano Roosevelt.”

  On this issue, as ever, Thomas led where the conservative movement soon followed. In 1995, the Court, in an opinion by Chief Justice Rehnquist, finally struck down a law as violating the commerce clause. In United States v. Lopez, the Court rejected legislation that made it a crime to possess a gun near a school. Rehnquist’s opinion said, in essence, that mere possession of a gun in or near a school was so totally unconnected to the national economy that Congress had no right to prohibit it.

  Thomas agreed—and then some. In a concurring opinion, he said, “I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence.” Even Rehnquist had acknowledged the long line of cases that said the commerce clause was satisfied if the activity in question “substantially affects” interstate commerce. In his characteristically lengthy and detailed opinion, Thomas also said that the early New Deal Court—which was nicknamed the Nine Old Men—was right, and all the justices over the following six decades were wrong. “From the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause,” he wrote. If a majority of the justices agreed with Thomas, Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional.

  On March 23, 2010, President Obama signed his health care law, which was formally known as the Patient Protection and Affordable Care Act, or ACA. That same day, Kenneth Cuccinelli, the attorney general of Virginia, filed the first of many legal challenges to the law. Federal judges around the nation began passing judgment on the constitutionality of “Obamacare.” One of the first, and certainly the harshest, verdicts came from Judge Roger Vinson, of the federal district court in Pensacola. He struck down the law in its entirety, relying several times on Thomas’s concurring opinion in Lopez. Vinson said that the Obama administration’s position would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.” These words, of course, would have fit just as well in a speech by Ginni Thomas as in an opinion by her husband.

  20

  “DEMOCRACY IS NOT A GAME”

  On November 2, 2010, Republicans routed Democrats in the midterm elections. The GOP won control of the House of Representatives, with a gain of sixty-three seats, and cut the Democrats’ margin in the Senate to fifty-three to forty-seven. The results amounted to a repudiation of Obama’s agenda.

  The following morning, the justices heard an archetypical case of the Roberts era. It provided a chance for the Court to lower the barrier between church and state, and to use a procedural device to do so. A state law in Arizona gave tax credits to individuals who paid tuition at parochial schools. A group of local taxpayers challenged the law, asserting that the credits amounted to government financial support of religion, in violation of the First Amendment. The specific issue in Arizona Christian School Tuition Organization v. Winn was whether the taxpayers had standing even to challenge the law. This was another challenge to a conservative bête noire: Chief Justice Warren’s famous 1968 opinion in Flast v. Cohen, which held that taxpayers had the right to challenge actions that they believed amounted to government support of religion, in violation of the First Amendment.

  Arizona Christian was the right’s latest chance to cut back on Flast. In the oral argument, Anthony Kennedy sounded like a Tea Party protester: “I must say, I have some difficulty that any money that the government doesn’t take from me is still the government’s money.” The result in the case was predictable—a 5–4 ruling that the taxpayers lacked standing to bring the suit. There were still only four liberals, but now two of them were new to the Court—and that, inevitably, changed the interpersonal dynamics for all nine justices.

  ——

  Except when deciding cases, the Supreme Court operated somewhat like a university faculty. As dean, the chief justice established committees to allow the other justices to participate in the administrative business of the Court. The most coveted of these assignments was the building committee, because the justices took understandable pride in the beauty and durability of Cass Gilbert’s marble masterpiece. On that committee, O’Connor and Souter fought for years to keep garish fire exit signs out of the corridors. Kennedy also dueled with the architect of the Capitol over the egregious congressional visitor center, which wrecked the vista between the Court and the Capitol. Thomas, a computer buff, enjoyed his tenure on the technology committee.

  There was no doubt about the least desirable assignment. One justice always had to serve on the cafeteria committee, which dealt with the windowless and forlorn diner-style restaurant located in the Court’s basement. By tradition, this assignment went to the junior justice. Because Breyer spent eleven years with the least seniority, he put in the most time on cafeteria matters. In his characteristically earnest way, Breyer spearheaded the introduction of wrap sandwiches, which he remembered fondly from the courthouse cafeteria in Boston. He mediated conflicts in matters of social class; Supreme Court police officers wanted meatloaf and mashed potatoes, while the law clerks demanded tofu. To address the persistent deficits generated by the enterprise, Breyer tried, with mixed success, to arrange for tour groups to be deposited within tempting distance of the cafeteria.

  Kagan, now the newest justice, took another approach. Just as she brought a food-and-fun philosophy to Harvard Law School, she tried a similar experiment at the Supreme Court: she engineered the acquisition of a frozen yogurt machine in the cafeteria. It was perhaps testimony to the dour nature of life at the Supreme Court that such a modest enhancement was so celebrated. Even Roberts took to saluting Kagan’s frosty coup in his speeches.

  Kagan, who sometimes referred to herself as the Frozen Yogurt Justice, made her presence felt in more jurisprudentially significant ways as well, in large part thanks to her relationship with Ginsburg. It was perhaps predetermined that Ginsburg would adopt Kagan as a protégée. Both were secular Jews from New York City who spent much of their lives as law professors. Ginsburg’s daughter, Jane, who was five years older than Kagan, was also a law professor at Columbia. And Kagan, unlike Jane, was ebullient and outgoing, like Marty Ginsburg, whose death roughly coincided with Kagan’s arrival. Ruth Ginsburg made Kagan her frequent date for the opera. For her part, Kagan kept her word to the senators and volunteered to go shooting with Scalia. To her surprise, she liked the guns (as well as Scalia), returned for more, and quickly graduated from clay pigeons to actual birds. The opera soon paled in comparison.

  Now that Ginsburg had replaced Stevens as the senior justice on the liberal side, she had the responsibility for assigning the main dissenting opinions when the Court split in its predictable fashion. She gave Arizona Christian to Kagan, and here the Court saw for the first time what kind of justice Kagan would be in the way that mattered most—her writing. Kagan’s voice was straightforward and colloquial, almost chatty. In her dissent, she assailed the supposed distinction the Court drew between a state giving tax credits (permissible) and direct subsidies (impermissible) to religious schools. “Suppose a State desires to reward Jews—by, say, $500 per year—for their religious devotion,” Kagan wrote. “Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any indiv
idual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong.” Later, she wrote: “I count 14 separate cases (involving 20 appellate and district courts) that adjudicated taxpayer challenges to tax expenditures alleged to violate the Establishment Clause. I suspect I have missed a few.”

  It was entertaining reading, but as a dissenting opinion that was all it was. In the Court’s current configuration, Kagan could look forward to writing a lot more of them.

  ——

  Alito, on the other hand, quickly established himself as an influential player in the conservative majority. On the big issues—civil rights, Citizens United, gun control—Alito was a reliable vote for the Roberts team, although there were differences, too, in his approach. Scalia and Thomas had a libertarian streak, especially in First Amendment cases, but Alito hewed to the more authoritarian tradition on the American right. In this way, Alito resembled Rehnquist more than Roberts.

  While Scalia and Thomas seemed obsessed with the eighteenth-century world of the framers and Roberts channeled the corporate priorities of the Republican establishment, Alito had a different focus: the 1960s counterculture. When he came to Washington in 2006, Alito had a nearly invisible public profile, but he reinvented himself there as a culture warrior. Alito made speeches before groups like the Intercollegiate Studies Institute, a student leadership organization dedicated to “teaching future leaders the timeless principles that make America free and prosperous—the core ideas behind the free market, the American Founding, and Western civilization that are rarely taught in the classroom.” Likewise, Alito spoke at a fund-raiser for the American Spectator magazine, a right-wing outlet best known for its attacks on Anita Hill and investigations of Bill Clinton’s sex life.