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

by James Macgregor Burns

  Justice Stevens feared that the real harm might lie elsewhere. He and his fellow dissenters were disturbed by the Florida deadlock and all the controversies over balloting. Indeed, Souter and Breyer agreed on the need for the Florida Supreme Court to set improved standards. While for the conservative majority this was an excuse to halt all counting, Souter and Breyer wanted it to continue. Had the Supreme Court not “interrupted” it, Florida might have solved these problems on its own, Souter said, “and if not disposed of at the state level it could have been considered by Congress in any electoral vote dispute.” As Breyer pointed out, “Congress, being a political body, expresses the people’s will far more accurately than does an unelected Court.”

  Stevens and Ginsburg agreed that the Supreme Court should never have intervened. Bush’s attack on Florida’s procedures, Stevens wrote, was “wholly without merit” and the majority’s decision “effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law”—but that now would never be counted.

  “Although we may never know with complete certainty the identity of the winner of this year’s Presidential elections,” Stevens concluded, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

  By all lights, Stevens should have been right. Yet such was the authority of the Supreme Court that the five justices got away with their nakedly partisan decision. Al Gore, who had won a half million more votes nationally than Bush, but whose chance for the presidency was now abruptly erased, made a meek concession. “Now the U.S. Supreme Court has spoken,” he said in a televised address. Florida did not rebel against the court’s invasion of states’ rights. Congress made no move to overturn the decision. There was no explosion of court-curbing proposals as controversial decisions had provoked in the past. There were no marches on Washington. Liberal scholars assailed the decision, as did many conservatives. “Desirable result aside,” wrote political scientist and Bush backer John J. DiIulio, Jr., “it is bad constitutional law,” an expression of “ judicial imperialism.” And yet, public confidence in the Supreme Court was remarkably unshaken, even, after a dip in the immediate aftermath, among Democrats. Some political scientists suggested that doubt about the fairness of the ruling was more than offset by the unusual exposure to the “legitimizing symbols” of the court—“the marble temple, the high bench, the purple curtain, the black robes”—all conveyed to the public by a media that spoke of the justices “with the greatest deference and respect.”

  For its part, the court resumed business-as-usual, revealing little of the turmoil and bitterness that gripped it in December 2000. The 2001 term featured the court’s by now accustomed tacking left and right, here mandating tougher enforcement of environmental laws, there immunizing states from federal discrimination suits by disabled employees; here allowing mothers to be handcuffed and taken to jail for failing to buckle their children’s car safety belts and there upholding campaign finance laws. As usual, O’Connor or Kennedy or both provided the swing votes in a term that saw an unusually high proportion—one third—of 5-4 decisions.

  Observers could only guess at the impact of Bush v. Gore on the justices. An immediate sign, much commented upon, was Justice Ginsburg’s omission, in her opinion, of the customary “respectfully” when she concluded, “I dissent.” O’Connor made occasional defensive remarks in public, pointing out that some informal recounts conducted after the court had ruled showed that Bush would have won anyway. Kennedy, it was noticed, seemed to travel more, spending time abroad. Justice Souter was said to have been the most deeply affected by the case, shocked by the partisanship and lawlessness of the decision, even to the point of considering resignation. More than any of the other justices—more than most Americans—his faith in judges as “impartial guardians of the rule of law” was shattered.

  TH E MAN THE Supreme Court thrust into the presidency was not tormented by doubt. From the outset, George W. Bush governed as though he had earned a clear mandate for his sharply conservative agenda. The new president saw himself as heir not to the mushy, incoherent conservatism of his father, George H. W. Bush, but rather to the conviction politics of Ronald Reagan. His base was an inherited one of economic libertarians, social conservatives, especially his fellow Christian evangelicals, and hawks who demanded an assertive American posture toward the world. Despite the power of this awkward coalition early in the twenty-first century—their dominance within the Republican party, in Congress and at the grassroots, as well as in its presidential wing—all three factions continued to style themselves insurgents against a hostile establishment, and since the Reagan years, they had become, if anything, more aggressive and demanding. It took a rare politician like George W. Bush to harness all three behind his ambitions.

  The interests and goals of the factions clashed in many ways. Economic libertarians were uncomfortable with the values of evangelicals, while evangelicals in turn were more often victims, not beneficiaries, of the free market. Hawks tended to disdain them both. One thing they did share, though, was hostility to judicial liberalism and an eagerness to complete the conservative takeover of the courts. For the free marketers, this meant lifting regulations and other interferences with property rights. For social conservatives, it meant banning abortion, gay rights, and other outrages against “traditional values,” while dismantling the historic barriers between church and state. Hawks sought, above all, to unleash presidential power by removing the constraints they believed the courts, with Congress, had put on the executive in the aftermath of Vietnam and Watergate.

  The closely divided Supreme Court represented both frustration and opportunity to conservatives. Decades of dedicated court-packing had failed to give them undisputed control of the high bench. But now they were perhaps one vote away from tipping the balance decisively on issues such as affirmative action and federal power over the states. A pair of new justices—to replace, say, Stevens and O’Connor—might yield the grand prize: Roe’s overthrow.

  And George W. Bush seemed dedicated to giving them what they wanted. It was not so much his campaign rhetoric, promising judges “who will strictly interpret the Constitution and will not use the bench to write social policy.” They had heard that before, at least since 1968, when Richard Nixon had made it a cliché through endless repetition. They were only slightly more impressed by Bush’s claim that Antonin Scalia and Clarence Thomas were his favorite judges. The president showed his real commitment by packing the White House legal staff, where judicial candidates were born and made, with hard-core right-wingers drawn from the conservative legal network.

  With its hundreds of chapters at law schools and in cities, its 35,000 members—including Justices Scalia and Thomas, as well as Robert Bork—and its $5 million budget, the Federalist Society was at the heart of that network. The group was much more than the “forum for ideas, discussion, and debate” it claimed to be. Its members lobbied state and federal government for changes in laws and regulations. They provided pro bono legal support for conservative causes. They served on boards and as counsel for the anti-abortion National Right to Life Committee, the Christian Coalition, and the Center for Individual Rights, which was active in fighting against the rights of women, minorities, the disabled, and the elderly. Most important, the Federalist Society was central in recruiting, grooming, and promoting young activists for policy-making positions, legislative staffs, and judicial offices in state and federal government.

  Presided over by the president’s counsel, Alberto Gonzales, a Bush loyalist from Texas, White House lawyers quickly prepared a database of potential Supreme Court nominees and drafted memos—some as long as one hundred pages—detailing the pros and cons of the best candidates. And then they waited. And waited.

  Annually, as the summer end of the court’s term—the traditional retirement time for justices—approached, rumors spread of possi
ble vacancies and candidates who might fill them. In the White House, a retirement betting pool would form—Rehnquist and O’Connor were the regular favorites. Lobbying groups mobilized and clashed. In June 2003, pro-choice leader Kate Michelman called on the Senate to filibuster any nominee who refused to commit to upholding Roe. Anti-abortion lawyer James Bopp, Jr., fired back that demanding commitments meant “the destruction of an independent judiciary.” It was all moot—there was no vacancy that year. But the anticipation produced some bizarre moments. Evangelist Pat Robertson asked his vast television flock to join him in a “prayer offensive” aimed at three unnamed justices—apparently Stevens and Ginsburg, with the third unclear—so that God would put it in their minds “that the time has come to retire.”

  The Lord did not respond immediately. Bush’s first term passed without a single departure from the high court. Both he and John Kerry, the Democratic contender in 2004, pointed to that as evidence of what was at stake in the election. The message was driven home when, a week before the vote, the court announced that Rehnquist had been stricken with thyroid cancer. No prognosis was given, but soon after Bush’s narrow reelection, both sides prepared for the inevitable.

  Now the right-wing rallying cry was, No more Kennedys! Even more than O’Connor, Anthony Kennedy had come to represent betrayal. In his earliest years as a justice, he had been tightly bound to the court’s right wing. That made his “conversion” to a more moderate course all the more bitter. And far more than O’Connor, he was given to sweeping, even grandiose, judgments that made his activism more visible than O’Connor’s incremental approach. In recent years he had authored some of the opinions most hateful to social conservatives—the 1996 Romer v. Evans decision that permitted localities to protect homosexuals from discrimination, demanding that government “remain open on impartial terms to all who seek its assistance”; the 1997 City of Boerne v. Flores decision blocking an attempt by Congress to protect the free exercise of religion from government interference; the 2003 Lawrence v. Texas decision that explicitly rejected a 1986 precedent by striking down a state law that barred homosexual sodomy. Kennedy ended Lawrence with a flourish that had “originalists” seeing red: the Framers, he wrote, “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Every generation, he added, sounding like William Brennan, could invoke the Constitution “in their own search for greater freedom.” Scalia accused Kennedy of signing on to “the so-called homosexual agenda,” and Focus on the Family dubbed him “the most dangerous man in America.”

  BY MAY 2 0 05 , with Rehnquist’s health rapidly declining, the White House was refining its list of candidates for the job of chief justice. The administration’s most powerful right-winger, Vice President Dick Cheney, was now in charge. His selection committee, which included the president’s chief political aide, Karl Rove, culled the prospects to five, who each endured an hours-long grilling at the vice president’s residence.

  Cheney was preoccupied with rehabilitating the presidential power he believed had been crippled by Congress and the courts in the 1970s. After the 9/11 attacks on New York and Washington in 2001, he had shaped the administration’s position that the president had the authority to wage the “war on terrorism” without interference or review by the other branches. Already the Supreme Court had struck blows at that claim. In two cases decided on June 28, 2004, Rasul v. Bush and Hamdi v. Rumsfeld, the court rejected the administration’s indefinite detention of “enemy combatants” without any impartial process to establish whether their imprisonment was justified. Citizens and noncitizens were entitled to access to federal courts or other “neutral decision-makers.” Condemning Bush’s effort “to condense power into a single branch of government,” O’Connor wrote for the court in Hamdi that “a state of war is not a blank check for the President.”

  In the wake of these decisions, the vice president sought assurances from court candidates that they shared his views of executive power. But what was the conservative position? The administration’s extremism had cost it the support of the court’s right wing. In Hamdi, only Clarence Thomas had accepted the claim that an American citizen could be held indefinitely without legal process. Rehnquist had joined the majority, and Scalia thought O’Connor had gone too easy on Bush. While Scalia backed Bush with a dissent in Rasul, which involved a foreign detainee, in Hamdi he condemned the very idea that American citizens could be held as “enemy combatants” and demanded that they be immediately charged with a crime or released. In an “originalist” twist, he wrote that the “Founders well understood the difficult tradeoff between safety and freedom” and quoted Alexander Hamilton’s warning that “to be more safe,” nations “at length, become willing to run the risk of being less free.”

  FINALLY, in July 2005, President Bush had the opportunity he had awaited for more than four years. A few days after the end of the term, as cameramen stalked the ailing Rehnquist’s house, awaiting word of his retirement, a Supreme Court messenger delivered a letter to the White House. It was from Justice O’Connor, announcing that she would leave the court when her successor was confirmed. The Bush people were stunned, as were her colleagues, except for Rehnquist himself, who had maneuvered her into quitting before he did.

  When the two Arizonans had talked of retirement a few months earlier, O’Connor had been impressed by the chief justice’s point that two vacancies on the court at the same time would be disruptive. Assuming that Rehnquist, desperately sick with cancer, would leave at the end of the 2005 term, she decided that she would serve one more year before retiring to care for her husband, ill with Alzheimer’s disease. But shortly before the term ended, Rehnquist told her that he wanted to stay another year, adding, “And I don’t think we need two vacancies.” The implication took O’Connor aback: if she did not retire immediately, she would have to remain for two more years. “Well, okay,” she said. “I’ll retire then.”

  O’Connor’s retirement changed the administration’s calculus, but only slightly. After a half-hearted effort to find an acceptable female, Bush resorted to Cheney’s short-list. The man he chose, though, was not the hard-liners’ favorite. That would have been Michael Luttig, a federal appeals judge. Luttig was brilliant and exquisitely well-connected, but had a combative, difficult personality. He was an extremist who sounded like an extremist, an unsuitable candidate for O’Connor’s seat. John Roberts, another appeals court judge who had clerked for Rehnquist and worked in Reagan’s White House before Bush the elder named him to the federal appeals bench for the D.C. circuit in 1992 at the age of only thirty-seven, was an equally brilliant but far less truculent conservative. His reticence, in fact, had raised doubts for Cheney’s team. In his appeals court confirmation hearings, Roberts had denied that he had a “comprehensive philosophy” or an “all-encompassing approach” to constitutional interpretation. Was that true? the vetters demanded. Roberts was not entirely reassuring when he pointed out that conservative icons Scalia and Thomas were themselves inconsistent. Sometimes they wrote as strict constructionists, sometimes not—it depended on the case.

  Cheney was won over when, two weeks after O’Connor’s retirement, Roberts’s appeals court upheld the military tribunals that the administration had created to try detainees in response to O’Connor’s Hamdi opinion the year before, even though those tribunals did not meet the standards of the Geneva Conventions for fairness and due process. With his oft-expressed contempt for international obligations, Cheney was gratified to read that the “Geneva Convention cannot be judicially enforced.” Moreover, Roberts’s “soft” conservatism and the fuzziness of his views on issues like abortion were a plus if he was to replace O’Connor rather than Rehnquist. Then, too, he hit it off with the president, who liked his easy manner and thought he would make a “good colleague.”

  But on September 3, a few days before Roberts was to go before the Senate Judiciary Committee, William Rehnquist finally
succumbed to cancer. Bush did not hesitate. Before Rehnquist could be laid to rest, the president announced that he would nominate Roberts as his successor. As he pointed out, in the six weeks since he was named to O’Connor’s seat, Roberts had made a good impression. The release of tens of thousands of pages of documents from his work in the White House pleased conservatives with evidence of his staunch Reaganism, while exposing no “smoking gun” to terrify liberals. And in private meetings with Democratic senators, he projected modesty and restraint. On Roe, he found a line that sounded good while telling inquisitors nothing. Roe was, he would say, “settled law,” entitled to respect “under the principles of stare decisis”—meaning it was settled until the Supreme Court decided it wasn’t.

  Modesty and blurriness carried Roberts through his hearings. He opened with an appealing, but misleading, comparison of judges to umpires. They don’t make the rules, he said. “They make sure everybody plays by the rules. But it is a limited role.” Supreme Court justices, though, do make the rules, as the Rehnquist Court had shown to an unprecedented degree. Roberts neatly evaded the question of what kind of rulemaker he would be. Edward Kennedy thought he discerned in the nominee’s paper trail “a narrow and cramped and, perhaps, even a mean-spirited view of the law,” but what journalist Janet Malcolm described as Roberts’s “invincible pleasantness” and “armor of charm” deflected every attempt to pin him down. In the final vote, more than a score of Senate Democrats backed Roberts, reckoning that at least he didn’t seem to be as radical as Rehnquist—or any of a number of other candidates Bush might have sent down. Judiciary Committee member Herbert Kohl, a Wisconsin Democrat, said he was voting his hopes and not his fears.