Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  The critical test was abortion, and in Webster v. Reproductive Health Services, the five conservatives substantially weakened Roe by approving a Missouri law that severely limited the use of public resources for abortions or for abortion counseling and required doctors to determine the “viability” of fetuses before performing the procedure after twenty weeks of pregnancy. Four of the conservatives seemed ready to discard Roe—Scalia most explicitly—but O’Connor resisted because Webster did not directly challenge its constitutionality. When such a case came to the court, she wrote forebodingly, “there will be time enough to reexamine Roe. And to do so carefully.” In his dissent, Blackmun wrote, “I fear for the future. . . . I fear for the integrity of, and public esteem for, this Court.”

  Blackmun’s fears must have intensified when the last liberal stal warts of the Warren Court retired—William Brennan in July 1990 and Thurgood Marshall a year later. The power of appointment was now in the hands of President George H. W. Bush, Reagan’s vice president and successor. Bush was mistrusted by the hard right and eager to appease it, while avoiding a Bork-like confirmation mess. To replace Brennan, Bush picked David Souter, after minimal vetting. In fact, there was not much to vet. Souter was scarcely known in the legal community. He had spent most of his career as a state court judge in New Hampshire. Bush put him on the federal appeals court in April 1991—three months before he named him to the Supreme Court. The president relied on the assurances of Souter’s powerful New Hampshire patrons, his chief of staff, John Sununu, and Senator Warren Rudman. Indeed, Bush met Souter only an hour before he introduced him to the press. Worried conservatives were told by Sununu that Souter was a “home run” for them—they could neither confirm nor deny that. Nor did Democrats have more to go on than Rudman’s word that the nominee would be fine on privacy and civil rights.

  Souter’s confirmation hearings were no more revealing. The judge made conservatives uneasy by his failure to take up their invitations to expound on strict construction, while Democrats wondered if his moderation was a pose to avoid being Borked. And what was all that praise Souter uttered of his predecessor, William Brennan—mere politeness, or something more? A puzzled Senate confirmed Souter overwhelmingly, with only nine votes, all liberal Democrats, in opposition.

  There was no chance that Bush’s second nominee, to replace Thurgood Marshall, could have been a “stealth candidate.” Forty-three-year-old Clarence Thomas was well known in conservative circles, not least because he was that rare phenomenon, a black Reaganite. A Georgian of humble origins who had worked his way into a Catholic college, Holy Cross—he had once dreamed of becoming a priest—and then Yale Law School, he rose in Washington to become head of the Equal Employment Opportunity Commission under Reagan. His success in weakening enforcement of antidis crimination laws won him appointment to the federal appeals court for the D.C. circuit in 1990, where he was presumed to be in waiting for Marshall’s “black seat” on the Supreme Court.

  Bush thought Thomas’s race would mute liberal opposition, but Democrats were dismayed by the fierce, almost Borkian conservatism in the nominee’s many writings and speeches. At the hearings, Thomas tried to slide through, tempering his conservatism and dismissing some of his more extreme opinions as so many thought experiments. Evasion reached an absurd pitch when he denied that he had discussed Roe with anyone, ever. Then, ten days after the hearings ended, the Senate Judiciary Committee abruptly reconvened to hear charges by Anita Hill, who had been a young lawyer on Thomas’s EEOC staff, that he had sexually harassed her. Denying any wrongdoing, Thomas denounced this “high-tech lynching for uppity blacks” who “deign to think for themselves.” It was an ugly public spectacle that ended inconclusively. The Senate confirmed Thomas, but by the narrowest margin—six votes—of any successful nominee in the twentieth century.

  The arrivals of Souter and Thomas signaled the peak of Republican court-packing. All of the justices except Byron White were Republican appointees, and the conservative majority of Rehnquist, O’Connor, Scalia, Kennedy, and White was now apparently augmented by the Bush nominees. The chief justice himself sensed that the long-deferred counterrevolution was at hand. In a 1991 case, Payne v. Tennessee, he had announced that the court would not be bound by precedent “when governing decisions are unworkable or are badly reasoned. . . . Stare decisis is not an inexorable command.” Thurgood Marshall, on the edge of retirement, had struck back hard at this “radical new exception” to the Supreme Court’s traditional respect for its prior rulings. “The majority declares itself free to discard any principle of constitutional liberty . . . with which five or more Justices now disagree.” This signaled, Marshall wrote, that “power, not reason, is the new currency of this Court’s decisionmak ing.” The chief justice would not have disagreed: decision-making among the justices was driven by the votes of a majority. Votes were power—with five of them you could do anything, as William Brennan had said—and Rehnquist had the votes.

  Or so he thought. A funny thing happened on the way to the counterrevolution. Not long after the Bush nominees joined the court, conservative cohesion began to dissolve. As Republicans had feared, Souter was the first to go, beginning to vote more often with the liberals than with the conservatives. More surprising were the defections of O’Connor and Kennedy. Disturbed by the aggressiveness and overreaching of their allies, especially Scalia and Thomas, they made a turn toward moderation. The two became—and would remain—a tag team of swing voters, giving their decisive votes now to the liberal bloc, now to the conservatives. By 1991, according to political scientist Thomas Hensley’s analysis, over half of the court’s decisions in civil rights and liberties cases were “liberal,” compared to 33 percent in 1989. By 1992, the conservative core had shrunk to Rehnquist, Scalia, Thomas, and White—a minority.

  With the acid test still abortion, Planned Parenthood v. Casey, in 1992, proclaimed the conservative crack-up. At issue was a Pennsylvania law that mandated a twenty-four-hour waiting period for women seeking abortions. It also required that women notify their spouses and that minors obtain their parents’ consent before having the procedure. The chief justice began to draft what he assumed would be the majority opinion. He would uphold all of Pennsylvania’s restrictions and effectively overturn Roe, writing, “The Court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a ‘fundamental right.’ ”

  But unknown to the chief justice, Souter, O’Connor, and Kennedy were collaborating on an alternative opinion. They were appalled by the chief ’s eagerness to dismiss Roe. O’Connor was also offended by the Pennsylvania statute’s spousal-notification provision—it struck her as sexist and patriarchal—and she wanted to write the “undue burden” standard she had invented for Akron into law. The biggest surprise was Kennedy. Only three years earlier, he had gone along with Rehnquist’s Webster call for Roe to be overturned. Now, in a talk with Blackmun, whose gradual leftward drift had been moved in part by the right wing’s unrelenting assault on his work in Roe, Kennedy told the old justice that he would uphold the right to abortion. In a direct hit at Rehnquist’s Payne opinion, the “troika” spoke up for stare decisis: “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.” Blackmun and Stevens signed on to the core of their decision that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” Suddenly, Rehnquist didn’t have the votes.

  CONTROVERSY OVER Republican court-packing had risen to such a heat during the Reagan-Bush presidencies as to become a defining issue in the 1992 presidential campaign. Bill Clinton criticized the Republican use of ideological litmus tests and promised that his appointees would be “unquestionably qualified by reason of training, experience, judgment.” To these bland criteria, he added that his nominee would be “someone who believed in the
constitutional right to privacy.” In fact, he finally said, “I would want people on the Supreme Court . . . who were pro-choice.” Six weeks into his presidency, with the retirement of Justice White after his thirty-one years on the high bench, Clinton looked forward to making the first appointment by a Democratic president since Lyndon Johnson chose Thurgood Marshall twenty-six years earlier.

  Astonishingly, it was hard to peddle the job. The president’s first choice, Governor Mario Cuomo of New York, declined. Clinton’s secretary of education, Richard Riley, also declined, twice. After Clinton floated the name of his interior secretary, Bruce Babbitt, as a trial balloon, Babbitt withdrew in a storm of controversy ignited by anti-environmentalists. Two high-ranking judges in lower courts—both women—also asked to be removed from consideration. Then, finally, the president’s eye fell on Ruth Bader Ginsburg, who had served for over a dozen years on the potent federal appeals court for the D.C. circuit. Raised in Brooklyn, she had won her law degree from Columbia, tied for first in her class. Clinton felt a quick “emotional connection” with a woman who had said she had three strikes against her, as a woman, a Jew, and “a mother to boot.”

  The Senate approved her 96 to 3. While her background as a leading advocate for women’s rights pleased Democrats, her restrained jurisprudence on the appeals court convinced Republicans that she was as she described herself—a judge who would “decide the case before her without reaching out to cover cases not yet seen.” She fit comfortably into a liberal bloc made up of Republican appointees.

  A year later, when Justice Blackmun announced that he was retiring at the age of eighty-five, President Clinton had a second appointment—only to find once more that the gift was hard to give. Again, his first choice—Senate majority leader George Mitchell of Maine—turned down the honor. Other names were floated and shot down. Finally, at the urging of Senator Ted Kennedy, Clinton approached another federal appeals court judge, Stephen G. Breyer. A Harvard Law School graduate, Breyer had clerked for Justice Goldberg, served as counsel to the Senate Judiciary Committee, and was appointed to the appeals court by Jimmy Carter in 1980. As with Ginsburg, Breyer’s appeals court record, along with his unfeigned respect for “the people’s representatives” in Congress, won over Republicans. He was praised by both parties as a “principled moderate” and “moderate pragmatist,” and after winning easy confirmation, he gravitated smoothly to the Stevens-Souter-Ginsburg axis.

  Losing out in the grand roulette of judicial appointments, Clinton would have no further picks in his remaining six years in the White House. But if there would be no Clinton Court, whose court was it? The chief justice’s grip had weakened even further with the arrival of the Clinton appointees and the loss of White. John Paul Stevens emerged as the liberal leader after Brennan’s retirement; he and his allies voted together as consistently as the conservative trio of Rehnquist, Scalia, and Thomas. But even though the liberals held their own—and sometimes more—in the battle for dominance of the court, they were one vote short of a Stevens Court.

  If leadership on the Supreme Court were measured by being on the winning side in key cases, then it might be called the O’Connor Court. Recoiling from the unbound extremism of Rehnquist et al., O’Connor forged a centrist—actually, moderately conservative—path that, term after term, put her in the majority in 90 percent of the decisions. Because she was the quintessential swing vote who had constantly to be wooed, her own jurisprudence came to characterize the court’s: case-by-case decision-making on narrow grounds, often achieved by splitting the difference. If the court took few large leaps left or right, that was O’Connor’s influence. The court was not exactly quiescent—indeed, its polarization and the inability of either bloc to gain the upper hand created strong and angry turbulence—but it tacked back and forth on a narrow track.

  Yet rarely had the court been so supreme. For decades, conservatives had inveighed against the liberal activism of the judiciary and required their nominees to pledge allegiance to restraint and strict construction. But none of the conservatives on the Supreme Court would pass muster with Felix Frankfurter. Whether it was pushing for the principle of absolute “colorblindness” in law or the devolution of power to the states or checks on regulations, the conservatives all were activists, equal, at the least, in that with the liberals. After all, counterrevolutions, even in the cause of “restraint,” could not be conducted with hands folded. Because she sometimes sided with conservatives in their activism and sometimes with liberals in their activism, O’Connor, despite her careful, step-by-step jurisprudence, her refusal to endorse broad principles, was the most activist judge of all. As a result, beginning in 1994, the Supreme Court struck down federal statutes at a higher rate than ever before, more than twice as often as had the Taft Court, almost twice as often as the Hughes Court before 1937, and half again as often as the Warren Court at its activist peak in the 1960s. It was simply, in political scientist Thomas Keck ’s phrase, “the most activist Supreme Court in history.”

  That record reflected a distrust of, not a deference to, “the people’s representatives” in the legislative branch. In 1993, Congress tried to override a decision of the Supreme Court that religious groups saw as a threat to their right to freely exercise their faith, with a law that explicitly criticized the court’s use of judicial review. Rejecting the new law, the justices slapped the legislators down hard, reminding them that only the judiciary could define the rights guaranteed by the Constitution and that “the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority.” Nor were the justices reluctant to leap into what Frankfurter had called “political thickets,” injecting themselves into a wide variety of controversial matters that might have been left to the political branches. This included the ultimate thicket of legislative apportionment, with the justices repeatedly overturning the decisions of governors and state legislatures and, by drawing and redrawing political boundary lines, determining the fate of elected officials.

  Polarized and fragmented as it was, this imperious court reigned supreme over the political and constitutional landscape.

  CHAPTER TWELVE

  Hard Right: The Cheney-Bush Court

  IN THE END, the story of Bush v. Gore was very simple. After all the complex, jostling political action—local, state, and national—that riveted the country for more than a month in the wake of Election Day 2000, the Supreme Court had the power to break the electoral college deadlock between George W. Bush and Al Gore and to settle the presidential election—and it did. Five conservative Republican justices—Rehnquist, O’Connor, Scalia, Kennedy, and Thomas—had the bare majority of votes they needed to settle it for their fellow conservative Republican, George Bush. They insisted in their majority opinion that resolving the disputed vote in the state of Florida was an “unsought responsibility” they were “forced” to confront, but they seized it with fervor and speed, issuing their decision less than thirty-six hours after the two sides made their arguments.

  In order to elect George Bush, the conservative justices had to cast aside principles that had for decades powered the New Right’s campaign against liberalism in law and justice. They had to suspend their “respect for federalism” to override the Florida Supreme Court in a matter historically left to the states—the way elections are conducted. They had to invent a new constitutional right—a “fundamental right” for each voter to have his or her ballot counted by a uniform standard. To do so, the conservatives, who had shown little but hostility to claims of unequal treatment in a wide range of cases, used the equal protection clause of the Fourteenth Amendment as daringly as the Warren Court ever had, but they left themselves an out: that “fundamental right” was good for this case only, “for the problem of equal protection in election processes generally presents many complexities.” It does: Florida’s crazy quilt of election procedures and technologies was the rule in the United States. Rarely were two polling stations anywhere alike—especi
ally damaging to voters in poor and minority areas, where the lack of resources and official indifference reduced voter access and made for confused ballots and haphazard vote counts. But no court—certainly not this court—had ever before suggested that all voters were constitutionally entitled to have their ballots cast and counted the same way.

  The five justices decided that Florida could not carry out a count of ballots that would meet their new standard by the deadline they imposed—it happened to be the very day of their decision, December 12—so they ordered an immediate halt to the counting, ensuring that none of the contested ballots would be counted by their—or any other—standard. That in turn ensured that George Bush’s lead of 537 votes—out of almost six million cast by Floridians—hastily certified in November as final by Florida’s secretary of state, who was cochair of Bush’s state campaign, would be locked in. All of the state’s 25 electoral votes would go to Bush and put him over the top in the electoral college.

  The alternatives, the justices suggested, were too dreadful to contemplate. Florida, which constitutionally had the responsibility for determining how presidential electors were selected, might have completed its recount, following its own standards, and then delivered the results to the House of Representatives, which, under the Constitution, was the final arbiter in disputes over the certification of electors. But that constitutional procedure, Justice Scalia wrote in announcing the court’s decision to hear the case, would “threaten irreparable harm” to George Bush “by casting a cloud upon what he claims to be the legitimacy of his election.” The harm to Bush was that, in a recount, he might lose. So the justices made sure that the only votes that counted were their own.