For Obama, and Democrats generally, this failure to engage on legal issues extended to more than just judgeships. To the extent there is a contemporary liberal agenda, it consists roughly of a pallid embrace of the status quo: preserve Roe and affirmative action. (Support for the rights of gay people may turn out to be an exception to this pervasive timidity. Obama did direct his administration to argue that the Defense of Marriage Act violated the equal protection clause, and announced his support for same-sex marriage.) Both Bill Clinton and Obama also displayed a major commitment to diversity in filling judgeships, and their nominees included dramatically more women and minorities than those of Republican presidents. But it was a lot harder to say what these Democratic judges stood for.
Even after the health care case, it is easy to say what John Roberts stands for. He remains a skilled and powerful advocate for the full Republican agenda; he is still the candidate (in robes) of change. Roberts did refrain from embracing the unprecedented extremism of his conservative colleagues in the health care case; on that occasion, the chief justice acted like a true conservative and deferred, as judges have for seventy-five years, to the elected branches of government on issues relating to managing the economy. But it was folly to pretend that Roberts had discovered his inner moderate. He had not changed, except that he was more powerful than ever. The only thing that is certain about January 20, 2013, is that John Roberts will be there to administer the oath of office.
There was some irony in the conservative embrace of originalism, in the insistence by Scalia and others that the Constitution is “dead” and unchanging. With their success, driven by people, ideas, and money, conservatives proved just how much the Constitution can change, and it did. Obama and his party were the ones who acted like the Constitution remained inert; they hoped the Constitution and the values underlying it would somehow take care of themselves. That has never happened, and it never will. Invariably, inevitably, the Constitution lives.
(photo credit i1)
At the stroke of noon, on January 20, 2009, Chief Justice John Roberts administered the oath of office to President Barack Obama at the U.S. Capitol. Stumbles and mistakes in the oath prompted an unprecedented “redo” of the oath the following day at the White House. (photo credit i2)
Chief Justice John Roberts readministers the oath of office to President Barack Obama in the Map Room at the White House on January 21, 2009. The portrait is of Benjamin Latrobe, architect of the Capitol. (photo credit i3)
Chief Justice Roberts prepared this card in advance of the inauguration to guide how the oath would be administered. (Roberts added a comma after “ability.”) Aides to Roberts sent this card to the congressional inaugural committee, but it never reached anyone on Obama’s staff.
On January 14, 2009, the president-elect and vice president-elect visited the Supreme Court by invitation of the chief justice. Eight justices greeted them, and Samuel Alito chose not to attend. From left: Barack Obama, John Roberts, John Paul Stevens, Clarence Thomas, Ruth Bader Ginsburg, David Souter, Joseph Biden. (photo credit i4)
Obama signs the Lilly Ledbetter Fair Pay Act in the East Room of the White House on January 29, 2009, with a smiling Ledbetter herself (center, with blond hair and pin) looking on. This was the first piece of legislation Obama signed as president, and it overturned Justice Alito’s opinion in Ledbetter v. Goodyear Tire & Rubber Co. (photo credit i5)
Antonin Scalia, shown here (right), with Stephen Breyer at a congressional hearing in 2011, has been a dominant conservative voice on the Court for decades. (photo credit i6)
Dick Heller, a District of Columbia police officer who challenged the D.C. law preventing individuals from keeping private handguns, signs autographs after the Supreme Court ruled that the Second Amendment gives Americans a right to keep guns in their homes. (photo credit i7)
After her confirmation, Sonia Sotomayor hugs her mother, Celina Sotomayor, during a reception in the East Room of the White House on August 12, 2009. (photo credit i8)
The current 4-4 conservative-liberal split on the court has made Anthony Kennedy (shown here) the most powerful justice in decades. His swing vote has controlled the outcome of many cases, including Citizens United. (photo credit i9)
The Obama administration’s anger over the Supreme Court decision in Citizens United prompted Obama to rebuke the justices during his State of the Union address on January 27, 2010. (photo credit i10)
Justice Alito mouthed “not true” and shook his head as Obama described the consequences of the Citizens United decision during his 2010 State of the Union address. Justices (top row, from left) Alito, Sotomayor, (bottom row, from left) Roberts and Kennedy. (photo credit i11)
After Elena Kagan’s Supreme Court nomination was announced in 2010, The Wall Street Journal ran this photograph of Kagan playing softball while she was a professor at the University of Chicago Law School. The New York Post reran the photo with a headline suggesting she was a lesbian. (photo credit i12)
Obama’s second Supreme Court nominee, Elena Kagan, shown here with Obama and Chief Justice Roberts, takes her place as the 112th justice of the Supreme Court in 2010. (photo credit i13)
From left to right, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. This is the first time in history that three women have served on the Supreme Court at the same time. (photo credit i14)
President Obama and Secretary of State Hillary Clinton share a victory hug after the House of Representatives voted to pass health care reform in March 2010. (photo credit i15)
Virginia Thomas, wife of Justice Clarence Thomas, speaks out against Obama’s health care reform law at a Tea Party rally outside the U.S. Capitol in 2010. Her activities raised concerns about the propriety of a justice’s spouse being a leader in a political movement. (photo credit i16)
Clarence and Virginia Thomas at a Federalist Society meeting in Washington in 2007. (photo credit i17)
Solicitor General Donald Verrilli Jr. on the Supreme Court steps during a brief recess from oral arguments on health care reform in 2012. The justices gave Verrilli a tough time but ultimately vindicated him by ruling in his favor. (photo credit i18)
The current members of the Supreme Court: (back row, from left) Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan, (front row, from left) Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg. (photo credit i19)
ALSO BY JEFFREY TOOBIN
Opening Arguments: A Young Lawyer’s First Case—United States v. Oliver North
The Run of His Life: The People v. O. J. Simpson
A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President
Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election
The Nine: Inside the Secret World of the Supreme Court
ACKNOWLEDGMENTS
My thanks to my friends at Doubleday, starting with my editor, Bill Thomas. Phyllis Grann also lavished attention on this book and improved it a great deal. Thank you as well to Coralie Hunter, Todd Doughty, Roslyn Schloss, and Bette Alexander. For our sixth book together, my agent, Esther Newberg, has steered me the right way. My thanks as well to John Q. Barrett, of the St. John’s University School of Law, and Samuel Issacharoff, of the New York University School of Law, for their helpful comments on the manuscript. For fact-checking and research assistance, I am grateful to Lila Byock, Alex Bernstein, and Avi Zenilman. Thank you as well to Silvia Berinstein. Ellen and Adam Toobin were away at college when I wrote this book, but their inspiration to me is ever present.
I remain privileged to work at The New Yorker, where David Remnick has been a generous boss and a loyal friend. I am fortunate to work with Dorothy Wickenden, John Bennet, and Amy Davidson.
Amy McIntosh is my wife and true love. She’s a good editor, too.
NOTES
This book is based principally on my interviews with the justices and more than forty of their law clerks. The interviews were on a not-for-attri
bution basis—that is, I could use the information provided but without quoting directly or identifying the source.
In addition to the works cited in the text and below, I have benefited from the day-to-day coverage of the Supreme Court press corps, especially that of Adam Liptak, Lyle Denniston, Dahlia Lithwick, Tony Mauro, David Savage, Nina Totenberg, Pete Williams, and my CNN colleague Bill Mears. My thanks also to the Public Information Office of the Court, its excellent website, www.supremecourt.gov, and Kathy Arberg, Patricia McCabe Estrada, and Scott Markley.
The Court’s opinions are widely available online. I generally relied on Cornell University’s www.law.cornell.edu/supct/. For transcripts and recordings of the Court’s oral arguments, www.oyez.org, created by Professor Jerry Goldman of the Chicago-Kent College of Law, is indispensable. I am also a regular reader of www.scotusblog.com, the blog of record about the Court, and http://howappealing.law.com.
PROLOGUE: THE OATHS
1 only a single provision: I am grateful to Professor Akhil Reed Amar, of Yale Law School, for introducing me to the history of the oath. In particular, I relied on his book America’s Constitution, pp. 177–78.
2 whether he did: For an evocative account of Washington’s inauguration, see Ron Chernow, Washington: A Life, ch. 46.
3 wrote to the chief justice about it: Time, March 25, 1929, http://www.time.com/time/magazine/article/0,9171,846311,00.html#ixzz1WAMUAeom.
4 standing athwart history yelling “Stop!”: William F. Buckley Jr., “Publisher’s Statement,” National Review, Nov. 19, 1955, p. 5.
CHAPTER 1: THE POLITICIAN’S PATH
1 friends and colleagues found Obama more analytical than confrontational: David Remnick, The Bridge, pp. 163–67.
2 “Do you even want popcorn?”: Remnick, The Bridge, p. 189.
3 “for a lot of the changes that have been made”: Remnick, The Bridge, pp. 207–08.
4 compromise on racial profiling by the police: Remnick, The Bridge, pp. 350–51.
CHAPTER 2: “ON BEHALF OF THE STRONG IN OPPOSITION TO THE WEAK”
1 a justice who might overturn Roe v. Wade: David Remnick, The Bridge, p. 434.
2 “Whoever had the 15- to 20-minute slot won that money”: Roger Parloff, “On History’s Stage: Chief Justice John G. Roberts Jr.,” Fortune, Jan. 3, 2011, http://management.fortune.cnn.com/2011/01/03/on-historys-stage-chief-justice-john-roberts-jr/.
3 Roberts was the leading figure in his generation: See http://www.scotusblog.com/2006/03/the-expansion-of-the-supreme-court-bar/.
CHAPTER 3: THE ERA OF GOOD FEELINGS
1 “in the event that you do lead the defense team at the military tribunals, to offer my help”: Jonathan Mahler, The Challenge, ch. 4.
2 “two implants on each side and a total of three pints of fluid”: Dan P. Lee, “Paw Paw & Lady Love,” New York, June 5, 2011, http://nymag.com/news/features/anna-nicole-smith-2011–6/.
CHAPTER 4: THE LEGACY OF APPENDIX E
1 the quorum for the official prayers: Abigail Pogrebin, Stars of David, p. 19.
2 “That makes no sense”: Speech by Ruth Bader Ginsburg, Tenth Circuit Conference, Aug. 27, 2010, http://www.c-spanvideo.org/program/295217-1.
3 “the right most valued by civilized men”: Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting).
4 “not legal reasoning but fiat”: Robert Bork, The Tempting of America, p. 114.
5 “her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen”: Ruth Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63 North Carolina Law Review 375 (1985).
6 “the tall doctor and the little woman who needs him”: http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?_r=2&pagewanted=all.
7 “dissenting judge believes the court to have been betrayed”: Charles Evans Hughes, The Supreme Court of the United States (1936), p. 68, quoted in Ruth Bader Ginsburg, “The Role of Dissenting Opinions,” 95 Minnesota Law Review 1 (2010), http://www.minnesotalawreview.org/wp-content/uploads/2011/07/Ginsburg_MLR.pdf.
8 “The Constitution, as we have known it, is gone”: John Q. Barrett, “Commending Opinion Announcements by Supreme Court Justices,” http://www.stjohns.edu/media/3/55c14b0772794f148fec48e3c14851a7.pdf. See also James F. Simon, FDR and Chief Justice Hughes, p. 256.
9 each read dissents from the bench exactly once: I am grateful to William Blake, of the University of Texas, for sharing his research with me. See William D. Blake and Hans J. Hacker, “The Brooding Spirit of the Law: Supreme Court Justices Reading Dissents from the Bench,” Justice System Journal 31(1): 1–25 (2010).
CHAPTER 5: THE BALLAD OF LILLY LEDBETTER
1 “public law litigation”: Abram Chayes, “The Role of the Judge in Public Law Litigation,” 89 Harvard Law Review 1281 (1976).
CHAPTER 6: THE WAR AGAINST PRECEDENT
1 was able to assemble a majority in only a quarter of them: These statistics are drawn from the annual compilations by scotusblog.com.
CHAPTER 7: THE HUNTER
1 took his rifle, a .22 carbine, with him on the subway: Joan Biskupic, American Original, pp. 21–22.
2 after a string of bank robberies: The Miller story is laid out in entertaining detail in Brian L. Frye, “The Peculiar Story of United States v. Miller,” NYU Journal of Law & Liberty 3(1): 48–82 (2008).
3 the colonists formed militias: Adam Winkler, Gunfight, pp. 103–04.
4 the 1976 platform opposed it: Reva B. Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122 Harvard Law Review 191 (2008).
5 advocated for the individual rights view in conferences and seminars: Winkler, Gunfight, pp. 67, 97.
6 “for protection of himself, his family, and his freedoms”: Quoted in Siegel, “Dead or Alive.”
7 later joined the Reagan Justice Department: Ibid.
CHAPTER 8: LAWYERS, GUNS, AND MONEY
1 Reagan-era Justice Department official with close ties to the conservative movement: Adam Winkler, Gunfight, p. 57.
2 drug dealers broke her car windows and drove into her back fence: Brian Doherty, Gun Control on Trial, p. 29.
3 Stevens who hewed more closely to the actual debates of the framers: Post by Jack Rakove, http://balkin.blogspot.com/2008/06/thoughts-on-heller-from-real-historian.html.
4 as did the state legislators who ratified their work: The most often cited critique of originalism remains Paul Brest, “The Misconceived Quest for Original Understanding,” 60 Boston University Law Review 204 (1980).
5 they never indicated that they understood their intentions should bind future generations: H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harvard Law Review 885, 903 (1984).
6 and then find their twenty-first-century analogue: Winkler, Gunfight, pp. 283–86. See also Nelson Lund, “The Second Amendment, Heller, and Originalist Jurisprudence,” 56 UCLA Law Review 1343 (2009).
CHAPTER 9: THE UNREQUITED BIPARTISANSHIP OF BARACK OBAMA
1 had voted against his confirmation three years earlier: Tony Mauro, The Blog of Legal Times, Jan. 14, 2009. http://legaltimes.typepad.com/blt/2009/01/a-chat-around-the-fireplace-for-obama-biden-and-the-supreme-court.html.
CHAPTER 10: WISE LATINA
1 “adapt it to their own needs and uses”: Diane P. Wood, “Our 18th Century Constitution in the 21st Century World,” http://www.scotusblog.com/wp-content/uploads/2009/05/80_nyulr_1079_5-13-09_1224.rtf.
2 was the case of National Organization for Women v. Sche
idler, in 2001: For a clear discussion of that case, see Emily Bazelon’s discussion in Slate, http://www.slate.com/articles/news_and_politics/jurisprudence/2010/04/defining_radical_down.html.
3 suddenly of a heart attack at the age of forty-two: Antonia Felix, Sonia Sotomayor: The True American Dream, pp. 12–14.
4 “mark that I wasn’t able to succeed at those institutions”: Quoted in Felix, Sonia Sotomayor, p. 39.
5 she toured Israel with a group of Latino activists: Lauren Collins, “Number Nine,” New Yorker, Jan. 11, 2010, p. 48.
6 including the son of her dentist: Collins, “Number Nine,” p. 48.
CHAPTER 11: MONEY TALKS
1 “make constitutional law on his own”: Jack Beatty, Age of Betrayal: The Triumph of Money in America, 1865–1900, p. 176. Beatty points out that Davis’s credibility was suspect because Karl Marx (!) complained that Davis had misquoted him in a report. On Santa Clara, see also Morton J. Horwitz, The Transformation of American Law, 1870–1960, pp. 66–71.
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