A People's History of the Supreme Court

by Peter Irons

  Ironically, even before the Supreme Court ruled on their case, Shafiq Rasul and a fellow plaintiff, Asif Iqbal, had been released from the Guantánamo prison and allowed to return to their homes in England. They were presumably no longer a threat to American forces in Afghanistan, and perhaps never had been. In a statement to the press on the day of the Court’s decision in their case, Rasul and Iqbal said that “for the whole of the 26 months we were detained there, we were told, when we asked what our rights were, ‘you have no rights; this is Cuba.’ Only once, by accident in August 2003, a guard let slip that he had seen an item on the news. He told us we had a lawyer working for us on the outside. We were not meant to know even this much, and when we asked our interrogators, they said they knew nothing of any case or any lawyers.”

  Given the Supreme Court’s rulings in the Hamdi and Rasul cases, it was inevitable that the justices would confront further challenges to the president’s power to detain any person claimed to be an “enemy combatant” in the “war on terrorism” that has no end in sight. Two developments in November 2005, which remained undecided at this writing, returned this question to the Court’s docket. In the first, the justices agreed to review a federal appellate court ruling that military tribunals could try prisoners held at Guantánamo Bay. The case involved Salim Ahmed Hamdan, who was seized in Afghanistan in 2001 and charged with “war crimes” by American military lawyers. With a decision expected by July 2006, the Court will decide whether Hamdan is a “prisoner of war” and thus entitled to trial by court-martial, or is an “enemy combatant” who can be tried before a military tribunal with fewer legal protections.

  In the second case, Jose Padilla’s lawyers filed an appeal of the Fourth Circuit decision that reversed Judge Floyd’s ruling that he should either be charged with federal crimes or released from military custody. Confronted with the Hamdi decision as controlling precedent, the Bush administration tried to duck this judicial obstacle. Three years after Padilla was arrested as an “enemy combatant” and detained without charges against him, Attorney General Alberto Gonzales announced his indictment by a federal grand jury in Miami. The indictment made no mention of the radioactive “dirty bomb” that Padilla had first been accused of planning to detonate, which had prompted sensational headlines and a clear inference of guilt. He was charged instead with belonging to a “terror cell” that planned to raise money and train operatives to “murder, maim, and kidnap” civilians in foreign countries, charges that could bring a life sentence. Jenny Martinez, Padilla’s lawyer and a Stanford law professor, blasted the government’s effort to remove the case from the Supreme Court docket just days before its briefs were due. “The Supreme Court needs to review this case on the merits,” she said, “so the lower court decision is not left lying like a loaded gun for the government to use whenever it wants.”

  Whatever the outcome of the Hamdan and Padilla cases, which have not been decided at this writing, they will force the Court to decide, once again, whether the Constitution gives the president a blank check during wartime, or whether—as the Court stated in the Milligan case in 1866—its provisions apply “equally in war and peace” and protect “all classes of men, at all times, and under all circumstances.” The Court’s decisions in these momentous cases will affect the rights of every American, and even those who are not citizens of a country dedicated to “liberty and justice for all.”

  EPILOGUE

  “One of Us Will Have a Pick”

  More than a century ago, Mr. Dooley, the fictional alter ego of humorist Finley Peter Dunne, said that “the Soopreme Court follows the iliction returns.” Many scholars have dismissed this notion as simplistic, noting that justices are insulated by lifetime tenure from electoral reprisal for their decisions. It is clearly true, however, that when seats become open on the bench, from death or retirement, election returns can shift the balance of a closely divided Court on contentious issues that come before the justices. With power shared by the president and senators over Supreme Court nominations and confirmations, elections to those offices can affect the Court’s direction for years or even decades in the future. As we saw in Chapter 25, for example, the overwhelming victories in 1936 of President Franklin D. Roosevelt and Senate Democrats allowed FDR, during his second term, to name five justices who served, between them, for a total of 121 years. The decisions of these justices—including Hugo Black, Felix Frankfurter, and William O. Douglas—had an impact on American law for decades after Roosevelt’s death in 1945.

  In this epilogue I want to move beyond the cases discussed in the last three chapters, many decided by a one-vote margin, to show the impact of the 2004 presidential election on the Court’s likely course in future cases over such divisive issues as abortion, religion, affirmative action, and capital punishment. One of these issues, that of abortion, has in fact affected the debates—both outside and within the Senate chamber—over every judicial nominee from Robert Bork in 1987 through Samuel Alito in 2006. The Senate’s rejection of Bork’s nomination by President Reagan did not begin the politicization of the confirmation process. During most of the Court’s history, to be sure, partisan battles over judicial nominations have been rare, but not unknown. The Senate’s rejections of President Washington’s choice of John Rutledge as chief justice in 1795 and President Hoover’s nomination of John Parker in 1930 were based on political disputes over issues of foreign policy and civil rights, in those respective cases. And several justices who survived confirmation battles—Louis Brandeis and Clarence Thomas among them—were opposed by interest groups and senators who considered their political views dangerous.

  What made Bork’s rejection significant, and relevant to the 2004 election, was the conflict it provoked between interest groups on the left and right over the abortion issue. Liberal and conservative groups have scrutinized the “paper trail” of every nominee since Bork, looking for evidence of their views on abortion. Behind this scrutiny lies a single question: Will the candidate be likely to uphold or reverse the Court’s decision in Roe v. Wade? That is, in fact, the only question that really matters to the partisans on both sides. The views of nominees on such issues as affirmative action, federalism, and capital punishment have become subordinate to their positions on abortion.

  The cases we examined in the last three chapters were decided by a Court whose composition did not change between 1994 and 2005, the longest period of judicial stability since the early nineteenth century. The Court did not become a major issue during the presidential campaigns in 1996 and 2000, but as the justices grew older—with four over the age of seventy in 2004—the prospect that death or retirement might give the president an opportunity to fill empty seats made the Court an issue in that year’s election. Running for a second term, President George W. Bush faced the challenge of Senator John Kerry, amid growing concern over the war in Iraq and Kerry’s charges that Bush had favored the rich in the tax cuts he pushed through Congress. Both candidates, however, had constituencies with passionate views on abortion. Polls showed that some three million evangelical Christians had not voted in the 2000 presidential election, worried that Bush was “soft” on abortion, almost costing him the White House. Four years later his political strategists worked hard to bring these conservatives back to the voting booths. On his part, Kerry tried to convince “pro-choice” voters that Bush would name Supreme Court justices committed to reversing the Roe decision.

  The televised debates in the 2004 campaign exposed the division between Bush and Kerry on the Court. During the debates Bush was asked, “If there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who would you choose and why?” Avoiding the abortion issue that clearly had prompted this question, Bush gave his standard answer: “I would pick people that would be strict constructionists.” Looking at his opponent, Bush added that “I suspect one of us will have a pick at the end of next year,” but he assured voters that “
I will not have a litmus test” for justices, based solely on their abortion views. In reply, Kerry noted that Bush had earlier named Antonin Scalia and Clarence Thomas as his favorite justices, both committed to reversing the Roe decision. “I will not allow somebody to come in and change Roe v. Wade,” Kerry vowed. “I don’t intend to see it undone.” Whether these exchanges swung voters either way is hard to say, but evangelical Christians returned to the polls in 2004, providing Bush with his three-million-vote margin over Kerry.

  Bush’s prediction that the next president would pick a new justice within the next year proved correct. Speculation on which seat Bush would fill centered on Chief Justice William Rehnquist, who was then eighty and suffering from thyroid cancer. Many court-watchers expected Rehnquist to announce his retirement when the Court’s term ended in June 2005. It was not Rehnquist, however, but Justice Sandra Day O’Connor who announced on July 1 that she would retire, but not until her successor was confirmed. Her decision to step down, after twenty-four years on the Court, was not a total surprise, but it upset the plans of Bush’s advisers, who had expected Rehnquist to retire.

  Even before the 2004 election Republican leaders had recruited four conservative lawyers to assemble a list of potential nominees to fill Supreme Court vacancies. The most influential member of this group, later dubbed by the press the “Four Horsemen,” was Jay Sekulow, chief counsel of the American Center for Law and Justice and the leading lawyer on the Religious Right. Sekulow hosted a daily radio program on six hundred stations and had an e-mail list of eight hundred thousand evangelical Christians who could be mobilized to flood Senate offices with calls and letters. The Four Horsemen met weekly to fashion a list of conservative judges to replace Rehnquist, with two major criteria: sufficient legal credentials to win Senate confirmation, and views on abortion that would satisfy the evangelicals, who felt that Bush owed them for their electoral support.

  Sekulow’s candidate for chief justice was a fifty-year-old federal appellate judge, John Roberts, who easily passed the credentials test. Roberts had earned his undergraduate and law degrees from Harvard, and clerked for Chief Justice Rehnquist before working in the Justice Department and White House during the Reagan administration. After a stint at a prestigious Washington law firm, Roberts served as deputy solicitor general, arguing several high-profile cases before the Supreme Court. After returning to private practice, he advised President Bush’s lawyers during the battle in 2000 over Florida’s disputed electoral votes, and was rewarded in 2003 with a seat on the District of Columbia Court of Appeals. Roberts, who was Catholic, also passed the abortion test, having signed a Supreme Court brief during his time in the solicitor general’s office that argued that Roe v. Wade “finds no support in the text, structure or history of the Constitution.”

  On July 14, two weeks after O’Connor announced her retirement, Rehnquist offered another surprise. “I’m not about to announce my retirement,” he told the press. “I will continue to perform my duties as chief justice as long as my health permits.” President Bush faced a tough decision. The Four Horsemen had placed Roberts at the top of their short list to replace Rehnquist, but his decision to remain on the Court increased pressure on Bush to name a woman to fill O’Connor’s seat. However, Sekulow’s fervent backing of Roberts prevailed, and Bush sent his nomination to the Senate on July 19. Even before his confirmation hearings began, groups on both sides of the abortion issue launched media campaigns aimed at moderate senators in both parties. All these efforts halted when Chief Justice Rehnquist died on September 3, exactly one month before he was scheduled to preside over the Court’s next term.

  President Bush now had two Supreme Court seats to fill. On September 5, just two days after Rehnquist’s death, he informed the Senate that Judge Roberts was now his nominee as chief justice, the slot the Four Horsemen had first chosen for him. During confirmation hearings that lasted only a week, Roberts dazzled the senators with his command of Supreme Court decisions while he also deflected questions about his views on abortion, promising only that he would not let his personal views affect his judicial rulings. On September 28, the Senate confirmed Roberts by a 78–22 vote, supported by every Republican and half of the Democrats. When he took the Court’s center seat five days later, he became the youngest chief justice since John Marshall in 1801, with the prospect of two or three decades in that post.

  President Bush still had Justice O’Connor’s seat to fill, and faced renewed pressure to replace her with another woman. There were several women judges on the Four Horsemen’s short list, but their judicial records were so conservative that each faced the prospect of a grueling confirmation battle and a possible Democratic filibuster to block a confirmation vote. Bush surprised many people with his choice, announced on October 3, of his White House counsel and longtime friend, Harriet E. Miers. A former president of the Dallas Bar Association and head of a four-hundred-lawyer firm in Dallas, she had never been a judge. Although she was an evangelical Christian, her paper trail also included speeches in which she doubted the wisdom of “legislating religion or morality” and defended “self-determination” on the abortion issue. Although Jay Sekulow backed Miers, other Religious Right leaders called her nomination “disturbing to conservatives” and predicted she would become a “judicial activist” on the Court. After Senator Arlen Specter, the Judiciary Committee chair, met with Miers and then told reporters she needed a “crash course” on the Constitution, her confirmation prospects crashed, and Miers withdrew from consideration on October 27, 2005.

  Four days later Bush announced his choice of Judge Samuel Alito to fill O’Connor’s seat. In many ways Alito resembled the new chief justice, John Roberts; he was also an Ivy League product of Princeton and Yale law school, had worked in the Justice Department as deputy solicitor general, and had later served as the U.S. attorney in New Jersey. The first President Bush had named Alito to the federal appellate bench in 1990, at the age of forty, and he gained respect for well-crafted opinions that generally followed Supreme Court precedent. Like Roberts, Alito was Catholic, and his views on the “litmus test” of abortion were clear. In 1985, Alito wrote that “the Constitution does not protect the right to an abortion,” and he later voted as a judge to uphold a Pennsylvania law requiring married women to notify their husbands before obtaining an abortion, a position the Supreme Court reversed in an opinion joined by Justice O’Connor. Unlike their opposition to Harriet Miers, religious conservatives expressed delight at Alito’s nomination; Pat Robertson of the Christian Coalition called Bush’s choice “a grand slam home run.”

  With the prospect that Alito would shift the Court’s balance sharply to the right on abortion and civil rights issues, pro-choice groups turned up their lobbying campaigns against his confirmation, warning that he “would undermine basic reproductive rights” on the Court. During his confirmation hearings in January 2006, however, Alito echoed John Roberts in vowing his respect for precedent and pledging to separate his personal views from judicial decisions. The final Senate tally on his confirmation, by a vote of 58 to 42 on January 31, was closer than Roberts’s margin, but Alito’s approval underscored the political clout of the Religious Right.

  It is impossible, of course, to predict with certainty how the Supreme Court now headed by Chief Justice Roberts will decide cases that raise contentious issues, and whether the justices will uphold or overturn the Roe decision. With the addition of Justice Alito, there are still five of his colleagues who have voted in the past to “reaffirm the central holding” of Roe. But death or retirements before the presidential elections in 2008 might give President Bush the chance to name one or more new justices. That election, in fact, could well make the Court a central focus of the campaigns between the candidates who seek the White House. And other issues that come before the Court might supplant abortion as the litmus test for judicial nominees. Only time will tell, but four things are certain: Who sits in the Oval Office, which party controls th
e Senate, which justices leave the Court, and who replaces them are all factors that will affect—in one direction or another—the future course of American law.

  UNITED STATES CONSTITUTION

  We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

  ARTICLE I

  Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

  Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.