by Ted Cruz
The Medellín victory was profound for me because our argument had gotten to the heart of how I understood our government. We had been opposed by briefs from ninety foreign nations, the European Union, experts on the World Court, and the American Bar Association. Our opponent, José Medellín, was represented by one of the biggest law firms in the world. And yet none of these opponents were as formidable as our biggest adversary, the president of the United States, represented in court by one of the best appellate advocates in America.
But we had prevailed. Fifteen years after the rape and murder of two girls in Houston, the case of Medellín v. Texas ended with this simple declaration from the pen of the Chief Justice of the United States: “The judgment of the Texas Court of Criminal Appeals is affirmed. It is so ordered.” On August 5, 2008, at 9:48 p.m., the state of Texas injected a dose of lethal chemicals into the bloodstream of José Ernesto Medellín.
Among the witnesses at his execution were the families of Jennifer Ertman and Elizabeth Pena.30
Unfortunately, Medellín was not the only case in which I found myself litigating in the Supreme Court in opposition to the Bush administration. Almost from the start, the administration had showed a willingness to oppose conservatives in high-stakes litigation. For example, in 2003 the U.S. solicitor general shocked observers by arguing for a “middle ground” on affirmative action, expressly accepting the permissibility of the government imposing race-based preferences. He agreed with conservatives that the University of Michigan’s expansive affirmative action programs violated the Fourteenth Amendment’s guarantee of “equal protection of the laws,” but he also claimed that some government affirmative action programs are constitutional, even though the color of an applicant’s skin is an explicit factor in deciding on admissions.
In 2008, the administration went wobbly again, and once again the Texas Solicitor General’s Office was called to serve as a check and to defend conservative principles. The case was District of Columbia v. Heller. The issue was the constitutional right of Americans to keep and bear arms.
At the time, Washington, D.C., had the most draconian gun control laws in the country. The city prohibited any resident from owning a handgun, and it required that long guns be kept inoperable at all times, without exceptions. The ineffectiveness of this thirty-year policy was perhaps best evidenced by the city’s murder rate, which in 2003 was worse than war-torn Baghdad’s.
In a debate with the District of Columbia’s attorney general on The News Hour with Jim Lehrer, I pointed out that residents in wealthy D.C. suburbs like Bethesda, Maryland, can purchase effective police protection through their tax dollars, and so it is easy for some of those residents not to value their Second Amendment rights. But for an African-American single mother who takes the subway in the middle of the night from her second job to her apartment next to a crack house in inner-city Anacostia, the right protected by the Second Amendment is far from abstract. With good reason, she may believe she needs a firearm to protect herself and her children. She is among the most vulnerable members of the American family, and when you take away the Second Amendment right of law-abiding citizens to “keep and bear arms,” you take away the ability of Americans like her to defend themselves.
The D.C. attorney general was rather dismayed at that line of argument. He seemed to view it as unacceptable for a conservative Republican to defend the vulnerable. But gun rights represent only one of the many areas in which what I call “opportunity conservatism” empowers the least fortunate among us in a way that regulations and bureaucrats never have and never will. At every opportunity for public debate, it’s our job as conservatives to focus on personal choice and empowerment.
Of course, protecting gun ownership isn’t just a matter of good public policy. It is also required as a matter of constitutional law. So when the constitutionality of D.C.’s gun control laws arrived at the Supreme Court for argument in 2008, I was optimistic that Solicitor General Paul Clement would argue for a robust interpretation of the Second Amendment.
Sadly, the Bush administration did not allow him to do that. The Department of Justice refused to support Dick Anthony Heller, a federal law enforcement officer and D.C. resident who was challenging the city’s prohibition of handguns. Instead the administration argued that “reasonable restrictions” are constitutional if they protect “important regulatory interests”—whatever that means. The District of Columbia’s attorney general went even further, audaciously contending that the Second Amendment offers no protection whatsoever to individual gun owners, because according to the district, it protects only the “collective right” of militias.
I was dismayed with the Bush administration’s attempt to water down the Second Amendment and incensed with D.C.’s attempt to write the Second Amendment entirely out of the Constitution. So was Bush’s own vice president, Dick Cheney, who as president of the Senate signed on to a robustly conservative brief filed by 55 senators and 250 congressmen.
Texas took the lead among the states defending the Second Amendment. In the U.S. Court of Appeals for the D.C. Circuit, I presented oral argument in the companion case to Heller. And, before the Supreme Court, we wrote an amicus brief joined by thirty other states, in support of Heller’s challenge to the district’s laws.
Texas was willing—indeed, eager—to say that those laws violated the plain language of the Constitution. Unlike the District of Columbia, we did not believe the Second Amendment applies only to militias. And unlike the Bush administration, we did not believe that laws infringing Americans’ right to “keep and bear arms” become constitutional whenever a federal judge finds them “reasonable.” That’s not what the Constitution says; instead, it says “the right of the people to keep and bear arms shall not be infringed.” In my view, “shall not be infringed” means exactly that.*
In June 2008, the U.S. Supreme Court agreed with Texas. It explained that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Among those unconstitutional policy choices was D.C.’s “absolute prohibition of handguns held and used for self-defense in the home.” The merits of gun control may be debatable, “but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
The decision was 5–4, which meant that four justices had agreed with the District of Columbia’s radical position: not merely that some forms of “reasonable” gun control laws are permissible, but rather that nobody has any rights whatsoever under the Second Amendment. In other words, four justices would have held that the Second Amendment protects no individual right at all, that it establishes merely a “collective” right and is hence unenforceable by any American. Under that extreme interpretation, Congress could pass legislation making it a criminal offense for any American to own a firearm, and no man or woman in the land could challenge that law. And, ominously, we were just one vote away from the Supreme Court adopting that position, effectively erasing the Second Amendment from the Bill of Rights. If that doesn’t highlight the importance of the next president’s Supreme Court nominees, I don’t know what does.
Once again, the state of Texas had defended conservative principles before the Supreme Court. And once again, a majority of the Court had vindicated that defense.
It was a sweet note on which to end my five and a half years as the Lone Star State’s solicitor general.
When I initially took the job as solicitor general, Attorney General Abbott asked me to commit to staying at the post for at least two and a half years. I gladly agreed, and I intended to return to private practice after that period concluded. The reason that I stayed for more than twice the amount of time I had initially expected was simple: I loved the job.
Even the cases covered in this chapter do not fully capture how intellectually rewarding it was to serve as my home state’s solicitor general. In addition to those cases, we litigated and won hundreds more, including successfully defending, as amicus before the U.S. Supreme
Court, the federal partial-birth abortion law, New Hampshire’s parental notification law, and Indiana’s voter ID law. And in the lower courts, we successfully defended Texas’s law prohibiting taxpayer funding for institutions that provide abortion, the Texas marriage laws, and the Texas moment of silence legislation.
And, before the Texas Supreme Court, I argued and won unanimously a case upholding the Texas Sexually Violent Predator Civil Commitment law, which had been struck down by a state court of appeals. No cases were more horrifying than the numerous criminal cases I litigated involving rapists and pedophiles—I’m convinced there’s a special circle of Hell for such coldhearted predators—and helping play a meaningful role preventing sexual assault and child molestation made my work in law enforcement especially rewarding.
All of these cases were handled with the assistance of an amazing cadre of professionals. The attorney general’s office has roughly four thousand employees, and a budget over $500 million. When I arrived, I was put in charge of supervising every single appeal, criminal and civil, state and federal, throughout the agency. It was my first experience in a major executive position. I had led significant teams at the Justice Department and the Federal Trade Commission, but now I had supervisory responsibility for thousands of appeals being litigated by more than seven hundred attorneys. I worked hard to overhaul the reporting mechanisms, recruit new talent, and put in place senior attorneys to help manage the process. And, over five and a half years, we compiled a remarkable record of success.
I know of no other job like that of being solicitor general of Texas. Every day, you find yourself drawn into important litigation that is strategically difficult and fascinating—from congressional redistricting to the Second Amendment to the separation of powers. Fantastic cases land on your desk one after the other. And in every case, Attorney General Abbott gave me the mandate to fight for the conservative principles that make our Constitution enduring and our country free.
With his leadership and the work of an extraordinarily talented office of appellate advocates, that’s exactly what I tried to do. And what I hoped to do in the future.
My tenure also brought into sharp relief the growing divide between Republicans in Washington and conservatives everywhere else in America. An increasing number of Americans, especially in the bourgeoning tea party movement, could not understand how the people we’d elected to office to articulate and defend conservative principles seemed instead to be drawn in, becoming more and more a part of the problem.
* When John Roberts became Chief Justice, I finally found my courage. Shortly after he was sworn in, I asked him, “Tell me, Mr. Chief Justice, do you have any views on the appropriateness of boots as footwear in oral argument?” With a grin, Roberts replied, “Ted, when representing the state of Texas, they are not only appropriate, but required.” From that point on, in every argument I made before the Court, I wore my boots.
* The Court vacated the lower court’s decision on procedural grounds, so it didn’t address the underlying merits. But the result of the decision was that students were once again free to recite the Pledge of Allegiance.
* John Roberts was appointed Chief Justice by President Bush in 2005. Roberts was the only Supreme Court clerk ever to succeed his boss to the Court. This was fitting, since no one was more intellectually similar to Rehnquist than John Roberts. Before becoming Chief Justice, Roberts was an extraordinary advocate; indeed, when I began practicing, I worked hard to try to emulate his argument style. In his oral arguments, he never got emotional. He simply answered each question that was asked of him. This sounds easy and obvious, but in fact it is exceedingly difficult to resist the temptation to dodge hard questions or to answer the question you wanted, not the one you actually got. You do not get to be the best Supreme Court advocate of your generation, as John was, without having an exquisite understanding of what makes each of the sitting justices tick. With his immense credibility before the Court, Roberts had consistently managed to get the swing votes to sway in his direction. Therefore, whenever I appeared before the Roberts Court, I would always listen carefully to his line of questioning. Often he would be raising arguments that he deemed most likely to win over swing votes like Justice Kennedy. And whatever line he was posing, I would try to follow.
* The challengers did prevail with regard to the legality of the drawing of one particular congressional district.
* That doesn’t mean that there can be never be any restrictions on gun ownership. For example, all of the amici states (and all nine justices) agreed that the long-standing prohibitions on felons owning firearms are consistent with the original understanding of the Second Amendment. But any restrictions must meet a strict standard, consistent with the Constitution.
CHAPTER 7
Question #10: A Grassroots
Campaign for the U.S. Senate
Pat Brown was elated. The powerful two-term Democratic governor had once been worried that George Christopher, an appealing Rockefeller Republican, friend of Soviet leader Nikita Khrushchev, and mayor of San Francisco, would prevail in the race for the Republican nomination to challenge Brown’s reelection. Christopher, the Brown team believed, was the most dangerous kind of Republican candidate, a man backed by the establishment who didn’t make any waves.
In June 1966 Republican voters thought differently about who was the best bet to beat the venerable Democrat. They selected as their nominee the candidate of Pat Brown’s dreams—the former actor and corporate pitchman Ronald Wilson Reagan.
In Brown’s view, Reagan, who’d made national headlines in 1964 by giving an impassioned televised speech for the party’s failed presidential nominee, Barry Goldwater, was just the same sort of dangerous, delusional reactionary who had cost the GOP the White House in the ensuing Lyndon Johnson landslide. Reagan also, Brown believed, was a dimwit, a genial empty suit whose best-known film at the time was one in which he costarred with a monkey—Bedtime for Bonzo.
Reflecting the same mind-set, the legendary movie honcho Jack Warner, who had built countless movie star careers by casting them in major films, was said to be aghast at a Reagan bid. “No, no. Jimmy Stewart for governor. Ronald Reagan for best friend.”1 Even the candidate was in on the joke. A bright, thoughtful man who’d honed his free-market philosophy for decades, he reveled in the chance to be underestimated by his opponents. His greatest asset in that effort was his modesty and sense of humor.
Asked in 1965 what kind of governor he would be, Reagan replied, “I don’t know. I’ve never played a governor.” When a reporter asked for an autograph on a studio photo of Reagan and Bonzo, Reagan complied, writing above his signature, “I’m the one with the watch.”
Many establishment Republicans in Washington also scoffed at Reagan’s candidacy. New York Republican governor Nelson Rockefeller alleged Reagan was a political chameleon. House Minority Leader Jerry Ford tweaked Reagan’s reputation for ideological stubbornness, “I don’t think it’s a great mark of character to put your feet in cement and then stand there.” Richard Nixon, the former vice president, did not hide well his view that his fellow Californian was shallow.
What the mainstream politicos did not understand about Ronald Reagan was that he was running for a reason—not for money and not for fame (he already had both). He was running to change the country. Even more galling to the professional class that worked hard to polish the rough edges off their candidates for office, Reagan intended to be who he was.
He’s been a proponent of the far right for years, Brown charged. Some Brown supporters retouched photographs to show Reagan looking like Hitler. Almost as if it were a dare, Brown declared, “I’ll be very surprised if even he would deny that he is a conservative of the right-wing school.”
The fifty-five-year-old Reagan had no intention of denying that. “You have a right to know—and I am obligated to tell you—where I stand and what I believe.”
He was going to tell the truth about the state of the country and of California, which
in the sixties was being torn apart by race riots, violent antiwar protests, the drug culture, and a general sense of gloom. He knew that Democrats outnumbered Republicans by 3 to 2 in the state, but he also understood that his basic arguments had a widespread appeal. That he could build a coalition not by hiding his real views, but by explaining them in terms people could understand.
As Reagan himself later put it, “People were tired of wasteful government programs and welfare chiselers; and they were angry about the constant spiral of taxes and government regulations, arrogant bureaucrats, and public officials who thought all of mankind’s problems could be solved by throwing the taxpayers’ dollars at them.”
His campaign statements were pointed, memorable, and transformative. And he was a happy warrior, who used humor and self-deprecation to make his case. From the campaign trail, Time magazine reported, “Reagan can hold an audience entranced for 30 or 40 minutes while he plows through statistics, gags and homilies.” He spoke to a wide range of Californians who’d had enough of big-government solutions. A sampling:
• “In California, government is larger in proportion to the population than in any other state and it is increasing twice as fast as the increase in population. Our tax burden, local and state, is $100 higher per capita than it is in the rest of the nation, and the local property tax is increasing twice as fast as our increase in personal income.”
• “We see today a second generation, and even a third generation of citizens, growing up, marrying, having children, accepting public welfare for three generations as a way of life. The 11th century Hebrew physician and philosopher, Maimonides, said there are eight steps in helping the needy. The lowest of these is the handout; the highest is to teach them to help themselves.”
