by Ted Cruz
Getting the opportunity to clerk for the Chief helped launch my career before the Court. When the Chief offered me the job, my father wept (one of only two times I’ve ever seen him cry). I was being given the opportunity to see the Court from the inside, to get to know the justices personally, to learn and to see how they decide the cases before them. Over the next year, I worked sixteen-hour days, typically from 9:00 a.m. till 1:00 a.m., broken up only by basketball games three times a week with fellow clerks, police officers, and staff at the Court. There’s actually a basketball court above the courtroom where the Court sits, immediately atop the twenty-four carat gold–gilded ceiling of the courtroom. The roof is low, and you have to develop a low-arching jump-shot to avoid being blocked by the ceiling. They call it “the highest court in the land.”
After my clerkship, I went into private practice, to Cooper & Carvin, a small six-person litigation firm in D.C. specializing in constitutional and Supreme Court advocacy. It was founded by two senior lawyers from the Reagan Department of Justice, Chuck Cooper and Mike Carvin. Both are extraordinary lawyers; together they taught me how to practice law. Mike is a brilliant litigator who would go on to play a major role in helping us win Bush v. Gore.
Chuck is also a former Rehnquist clerk, and he’s an incredible strategist, a beautiful and elegant writer, and a very dear friend. During the presidential campaign, Chuck took a leave of absence from his firm to come to Houston full-time and help lead the campaign. He was an integral part of my debate-prep team, and had I won the election, he would have been my nominee for attorney general.
I left Cooper & Carvin in 1999 to join the George W. Bush presidential campaign, working as a young policy staffer in Austin. On the campaign, I met my wife, Heidi, my best friend and the love of my life.
From there, I joined the Bush administration, as an associate deputy attorney general at the Department of Justice and then as the head of policy at the Federal Trade Commission.
And then, in 2003, I was appointed the solicitor general of Texas, the chief appellate lawyer for the State of Texas. My boss was Greg Abbott, then the Texas attorney general and a close friend. I served in that role for five and a half years, litigating major constitutional issues before the state and federal courts. Then, I returned to private practice, for the next five years leading the Supreme Court practice at Morgan Lewis, one of the largest law firms in the country.
Over those ten years, I authored over eighty U.S. Supreme Court briefs and argued before the high court nine times, more than any other lawyer in Texas and more than any other member of Congress. My job was to win—to try to get five justices to agree and to rule for my client.
And, in case after case, we won major victories. This book tells you the inside story of those constitutional battles—most of which were decided by just a single vote.
We start with Van Orden v. Perry, a landmark religious liberty case, where the Court upheld as constitutional the public display of a Ten Commandments monument on the Texas State Capitol grounds. The Bill of Rights begins by protecting our religious liberty, and it is a cornerstone of the rights we hold dear. Van Orden was decided by a 5–4 vote, and every year religious liberty challenges are among the most contentious issues before the Court.
After that, we turn to school choice, which I believe to be the most pressing civil rights issue in the nation. Millions of children are trapped in schools that deny them access to a quality education. For a child’s hope in life to be dictated by his or her race, ethnicity, wealth, or zip code makes a mockery of equal protection. In Zelman v. Simmons-Harris, the Court, 5–4, upheld Ohio’s school choice program, allowing scholarships for low-income kids to give them a much better chance at the American dream.
From there, we move to Heller v. District of Columbia, another case I helped litigate, which affirmed our individual Second Amendment right to keep and bear arms. The right to self-defense is one of our most cherished inalienable rights, foundational to our right to life. In Heller, also 5–4, the Supreme Court for the first time ever established that the Second Amendment text means what it says, and the government cannot take that individual right away.
Then to Medellín v. Texas, a case I argued and won twice, upholding U.S. sovereignty and striking down both the World Court’s and the president’s authority to intervene in our criminal justice system. Our right to be a sovereign and free Republic is at the very core of the American experiment, and I was privileged to defend the sovereignty of both Texas and the United States against the attempted usurpation by the United Nations. For a host of reasons, it was the single most fascinating case I ever litigated.
In Gonzales v. Carhart, where the Supreme Court upheld the federal ban on the gruesome practice of partial-birth abortion, I led the States in defense of the federal law, and we prevailed 5–4, the exact opposite outcome that the Court had reached just seven years earlier in striking down a nearly identical Nebraska law, 5–4. The principal difference? Justice Alito had replaced Justice O’Connor, and that one vote was the difference as to whether partial-birth abortion would be deemed required by the Constitution.
We then turn to Citizens United v. Federal Election Commission, a case much reviled by the left and which they desperately seek to overturn. Citizens United upheld the free-speech rights of citizens to engage in the political process, to speak out, and to criticize candidates for federal office. Free speech is indispensable not only to our First Amendment but also to our functioning democratic process. By a vote of 5–4, the Supreme Court properly held political speech to be at the heart of the First Amendment’s free speech protection. In response, Senate Democrats introduced a constitutional amendment to repeal the free speech protections of the First Amendment. I led the fight against that foolhardy amendment, which thankfully failed, but not until after every single Senate Democrat had voted for it.
We continue with Kennedy v. Louisiana, an unfortunate case, where five justices deemed it unconstitutional to impose the death penalty for the reprehensible crime of child rape. I argued the case in defense of state laws allowing the death penalty for the most egregious and violent child rapists. Capital punishment has long been controversial politically, and different states have reached different policy judgments about whether and when it should be allowed. The text of the Constitution repeatedly refers explicitly to the death penalty, but that didn’t stop five justices from prohibiting the death penalty altogether from 1972 until 1976. In the decades since, the Court has added more and more arbitrary constraints on capital punishment, resulting in decades-long delays in the carrying out of sentences. And just one additional justice could shift the Court back to banning the death penalty altogether.
We then turn to two more cases that I helped litigate at the intersection of judicial authority and democratic control of elections: Bush v. Gore and LULAC v. Perry. The former, of course, resolved the 2000 presidential election after thirty-six roller-coaster days in which the nation and the world waited for the results to be determined. The latter involved a challenge to the Texas redistricting plan, where plaintiffs argued that the Constitution prohibits state legislatures from taking politics into account in drawing congressional districts. In both instances, the Court was asked to substitute its preferences and judgment for that of the voters—to put courts instead of the people at the center of elections—and in both cases, the Court voted 5–4 to decline that invitation.
And finally, we’ll examine past Supreme Court nominees and look at how we can make sure we get our Supreme Court picks right moving forward. On this front, the two parties do not perform equally. Democrats have a nearly 100 percent success rate; in major hot-button cases, their nominees vote exactly as they’re supposed to vote almost without exception. They vote consistently for the policy outcomes favored by liberals, regardless of the law or the Constitution. Republicans, on the other hand, have a much worse record.
Many of the worst liberal judicial activists were appointed by Republicans. Earl Warren, Willi
am Brennan Jr., John Paul Stevens, David Souter, Harry Blackmun—the author of Roe v. Wade—were all Republican appointments.
In terms of justices’ actually following the law and following the Constitution, Republicans have gotten it right 50 percent of the time at best. We’ll examine the pattern of differences between those nominees who honored their oath and those who did not. And we’ll lay out what to look for in future Supreme Court nominees.
Every single vote on the Court matters in every major case the Court hears. There is no room for error. On too many issues, we are one vote away.
Every American should understand what was at stake in these crucial cases and what is at stake in appointing Supreme Court justices. Every American who loves and cherishes the Constitution should be profoundly concerned about what losing the Supreme Court would look like—about what that would mean for these pivotal issues and for so many others. But every American who loves and cherishes the Constitution should also be inspired by the prospect of what securing the Supreme Court for a generation will look like.
This book is not intended just for academic or historical or legal purposes. Every one of these issues—every one of these rights and bedrock structural provisions—will be discussed, debated, and very much at stake in the 2020 election this fall. Judicial selection, especially for the Supreme Court, will also be very much at stake in the 2020 election. The Supreme Court will be on the ballot. And all of these issues will be at stake in elections after that of course.
The Supreme Court hangs in the balance. Five justices on either side can preserve our liberties or destroy them. Five justices on either side can secure our cherished structural freedoms or destroy them. Five constitutionalist justices can ensure the American experiment continues to thrive, but five liberal activist justices could fundamentally transform our Nation.
And far more often than we should be comfortable with, we are just one vote away from losing these fundamental rights and freedoms. For ourselves and our posterity, we have a solemn obligation not to let that happen.
CHAPTER 1 RELIGIOUS LIBERTY AND VAN ORDEN V. PERRY
Cecil B. DeMille. Catholic nuns. Schoolchildren. World War I veterans. All are directly implicated in the ongoing battles before the Supreme Court concerning religious liberty. This is the inside story of the battles before the Court to protect our First Liberty.
No right is more precious than the right to religious liberty. There is a reason that the Framers of the U.S. Constitution protected religious liberty in the very first clause of the very First Amendment of the Bill of Rights. The right to seek out and worship God, with all your heart, mind, and soul, according to the dictates of your own faith and your own conscience—to believe or not to believe—is fundamental to who we are.
There is no moral and just government that does not respect the religious liberty protections of its people. True political liberty, free speech, social stability, and human flourishing all depend upon a robust and durable protection, under the rule of law, of our fundamental right to choose our faith. And, on the flip side, efforts to undermine religious liberty and to persecute religious minorities are a telltale sign of tyrannical government.
Many who founded this nation were themselves fleeing religious persecution, and they came to form a country where the government could not take away that fundamental liberty. When the Pilgrims left Plymouth, England, aboard the Mayflower in 1620 and subsequently landed in Massachusetts, they were fleeing religious persecution. The Pilgrims were Puritans and were deeply pious men and women (as the Mayflower Compact shows in no uncertain terms).
More than a century later, the Declaration of Independence, the document that gave birth to our nation, declared, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Thirteen years later, the language used by the Framers of the First Amendment reflected this robust commitment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.…” The constitutional text does not say religious faith shall be tolerated or accommodated where convenient; it says “Congress shall make no law.”
The two religion clauses that follow are referred to as the Establishment Clause and the Free Exercise Clause. And the intersection of the two has been a source of confusion and the vehicle for many of the more extreme lawsuits and decisions by judicial activists undermining religious liberty.
The Establishment Clause prohibits government from using government power to coerce people to believe one particular religious faith or denomination. Having declared independence from England and fought a bloody war to achieve it, the Framers did not want the United States to have an official Church like the Church of England. Rather, they sought to protect our individual right to choose our own faith.
The left reads its own hostility to faith into the Establishment Clause, arguing that the clause implies the notion of an absolute “wall of separation of church and state.” But the phrase “separation of church and state” is found nowhere in the Constitution. It’s not in the Bill of Rights, and it’s not in the Declaration. Instead, that phrase comes from personal correspondence that Thomas Jefferson wrote the Danbury Baptist Association in 1802.
In that letter, Jefferson was not arguing for a wall to protect government from any acknowledgment of faith, but rather a wall against government interference with churches to protect the church from government. In other words, Jefferson thought that the American people needed a one-way wall stopping government from controlling churches to protect their most basic right.
How do we know this? Well, the purpose of the religion clauses was to protect our “rights of conscience,” as Jefferson put it. They were to protect faith, not to require government to be affirmatively hostile to the acknowledgement of faith.
As the Supreme Court long understood, government cannot “show a callous indifference to religious groups” because “[t]hat would be preferring those who believe in no religion over those who do believe.” Zorach v. Clauson (1952).
But, starting in the 1960s, the Supreme Court began reading the Establishment Clause as doing something much more: requiring the removal of God from the public square.
In 1962, in Engel v. Vitale, the Court banned the public recitation of prayer in public schools, and the next year, in Abington School District v. Schempp, the Court banned reading the Bible in public schools.
The consequences of those decisions were far-reaching, and at the time even some of the more liberal justices expressed caution. In Abington, Justice Arthur Goldberg warned that “brooding and pervasive devotion to the secular” and “hostility to the religious” would violate the constitutional rights of believing Americans. Regrettably, the anti-religious sentiment Goldberg noted all the way back in 1963 would become a strong, persistent trend in Supreme Court cases.
And it is contrary to two centuries of our nation’s history and practice. Indeed, there are countless illustrations of the government’s acknowledgment of our religious heritage, including the statutorily prescribed national motto “In God We Trust,” and even the cry before every single proceeding of the Supreme Court: “God save the United States and this Honorable Court.”
All throughout American history, our political and civil leaders have publicly pointed to their faith in God Almighty. They have appealed to God, they have looked to God, and they have implored their fellow Americans to appeal to and look to God alongside them. When President George Washington issued his famous Thanksgiving Proclamation in 1789, he told his fellow citizens that it is “the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor.”
John Adams, who succeeded Washington as America’s second president, captured in a succinct manner our Founding Fathers’ view of the role religion was meant t
o play in America. “Our Constitution was made only for a moral and religious people,” Adams wisely observed in a 1798 letter. “It is wholly inadequate to the government of any other.”
The Great Emancipator, Abraham Lincoln, was a religious and biblically literate Christian. Our sixteenth president, famously dedicating and consecrating that bloody Pennsylvania battlefield, put it this way: “We here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.”
Two years later, he repeatedly invoked and relied upon appeals to our Creator during what was perhaps our nation’s darkest and bloodiest hour, encapsulated by the captivating denouement of his magisterial Second Inaugural Address:
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.
The next century, as the United States led the World War II effort to defeat the existential evil that was Nazi Germany, President Franklin D. Roosevelt contrasted America and our genocidal foe in a starkly religious juxtaposition:
Our enemies are guided by brutal cynicism, by unholy contempt for the human race. We are inspired by a faith that goes back through all the years to the first chapter of the book of Genesis: “God created man in his own image.”… We are fighting, as our fathers have fought, to uphold the doctrine that all men are equal in the sight of God.