Like Obama himself, Kagan did little to fight back against these notions, but there was a cost to their silence. Left unrefuted, originalism began to look like the status quo. There was no one to say that an eighteenth-century document that embraced slavery, that ignored women, and that limited the right to vote was an imperfect guide in resolving contemporary problems. No one made the argument that it was impossible to determine precisely what the framers meant in every provision (or that they often disagreed with one another about what the words meant). No one said the Constitution’s values might be as important as its specific words, or that the framers never wanted or expected later generations to honor their precise understanding of their words, or that the Supreme Court’s own interpretations of those words over time had value, too. Instead, the field was left to the Cornyns and Coburns. For Kagan, it was safer to glide frictionlessly to confirmation. There was only one moment that anyone would remember from Kagan’s hearing. In an awkward introduction to a question about the terrorism arrest of Umar Farouk Abdulmutallab on December 25, 2009, on a Northwest Airlines flight to Detroit, Lindsey Graham asked Kagan where she was on that Christmas Day. Kagan didn’t understand the question at first, but then after Graham clarified it, she started laughing. “You know, like all Jews, I was probably at a Chinese restaurant,” Kagan said. The answer brought down the house and may rank as the most famous utterance by a Supreme Court justice since 1964, when Potter Stewart gave this definition of hard-core pornography: “I know it when I see it.”
On August 5, 2010, Kagan was confirmed by a vote of 63–37.
18
THE TEA PARTY AND THE JUSTICE’S WIFE
The confirmation of Elena Kagan was just about the last piece of good news Barack Obama received in 2010. The legislative horse trading that was necessary to pass health care reform offended many voters. The oil spill at the Deepwater Horizon drilling rig in the Gulf of Mexico took many long weeks to control. Above all, the economy failed to improve. Most of the political energy in the country during the period belonged to the Tea Party.
In certain respects, the Tea Party merely reflected the contemporary Republican Party; it was antitaxation, antiregulation, and anti-abortion. But the Tea Party was distinctive in other ways. Initially, it was largely a grassroots movement prompted to action by a spontaneous cry from CNBC’s Rick Santelli. On February 19, 2009, from the floor of the Chicago Mercantile Exchange, Santelli denounced Obama’s mortgage assistance plan as “promoting bad behavior” and rewarding “the losers.” He called for a Chicago Tea Party in July. From this spark, legions of conservatives began speaking out at town hall meetings held by members of Congress in their home districts. The protesters raised various issues at the meetings, but their most frequent target was Obama’s health care reform plan.
The Tea Party remained a decentralized movement, without a single leader or platform, but it is possible to generalize about some of its distinctive qualities. Its partisans often spoke out against “elites,” like the highly educated president and the similarly credentialed experts in his administration. Members of this movement thought they could understand the issues facing the country as well as anyone else. As Theda Skocpol and Vanessa Williamson observed in their broad study, “Tea Party skepticism about experts is part and parcel of their direct approach to democracy, their belief in citizen activism.” In particular, these activists thought they could interpret the Constitution better than the law professor president.
The Tea Party cared deeply about the Constitution. They passed out copies at rallies. They referred often to the Tenth Amendment (which refers to states’ rights) and the commerce clause (which limits the scope of federal legislation) and cited Supreme Court decisions, often with derision. More than any other conservative movement of the last several decades, the Tea Party embraced a party line about the Constitution. Above all, Tea Party members were originalists, dedicated to restoring the modern government of the United States to the views, as they understood them, of the eighteenth-century framers. In this respect, the Tea Party reflected the broad triumph of originalism, which was also seen in the questions at Kagan’s confirmation hearing. Originalism had not yet fully triumphed at the Supreme Court, but it had become the quasi-official legal theory of the Republican Party.
Many of the key figures in the Tea Party movement were fascinated, even obsessed, by the text of the Constitution and its origins in eighteenth-century Philadelphia. Glenn Beck, the radio and television personality who was initially the personification of the movement, talked incessantly about the Constitution and wrote a book called The Original Argument: The Federalists’ Case for the Constitution, Adapted for the 21st Century. As Beck wrote:
What the Federalist Papers offer to us today is a guide to understanding the Founders’ core constitutional principles, the theories behind their words, the whys, where, and how of the foundation of America:
• Why smaller government makes better government
• Where federal power ends and state power begins
• How government should be organized and operated to maximize efficiency and minimize the risk of another monarchy.
Mark R. Levin, a radio talk show host and lawyer and another Tea Party favorite, wrote a series of best sellers devoted to supposed liberal perfidies about the Constitution. His first, published in 2005, was called Men in Black: How the Supreme Court Is Destroying America and featured such chapters as “Al Qaeda Gets a Lawyer,” “Socialism from the Bench,” and “Liberals Stack the Bench.” As soon as Obama was elected, Levin wrote Liberty and Tyranny, his most successful book, which included a paean to the Lochner era on the Supreme Court, when the justices repeatedly struck down social welfare legislation. To Levin and the Tea Party, small government was not just a policy preference but a constitutional command. Modern justices, and Obama himself, “are an arrogant lot who reject the nation’s founding principles,” Levin wrote. “They teach that the Constitution should not be interpreted as the Framers intended.… No literate person can comprehend the Fourteenth Amendment to mean what the [liberals] in academia claim it to mean.” In the political arena, Michele Bachmann, the Minnesota congresswoman embraced by the Tea Party, often described herself as a “constitutional conservative”—as if the views of the movement were mandated by the Constitution itself.
In fact, the Tea Party version of originalism went well beyond anything most of the current justices believed. Tea Party partisans insisted, like the conservative justices of the 1930s, that the Constitution forbade the regulation of the national economy. They rejected decades of cases that called for at least some separation of church and state. They believed that power should be concentrated in the states, rather than the federal government, in defiance of Supreme Court precedents that went back a century. In short, the constitutional interpretations of the Tea Party conflicted with those of every Supreme Court justice who had served on the Court since World War II—except for one: Clarence Thomas.
On September 12, 2009, tens of thousands of opponents of Obama’s agenda, especially his proposed health care reform, gathered in protest at the west front of the Capitol. FreedomWorks, the conservative organization led by Dick Armey, the former Republican leader of the House, helped organize the rally, and Armey was by that point an orchestrator, if not an actual leader, of the Tea Party movement. “Give me liberty or give me death,” Armey told the crowd. “Well, Barack Obama is trying to make good on that.”
The September 12 rally, and the Tea Party movement, had a transformative effect on the life of Virginia Lamp Thomas. Ginni Lamp grew up in Omaha, in a wealthy family prominent in Republican politics. She went to Creighton, in her hometown, for college and law school and moved to Washington to work for a Republican congressman, Hal Daub. In 1985, she moved to the United States Chamber of Commerce, where she fought regulations on businesses. At a conference on affirmative action sponsored by the Anti-Defamation League, Lamp met Clarence Thomas, who was then chairman of the EEOC in the Reagan adm
inistration. They married in May 1987.
During the Clinton administration, Ginni Thomas went to work for Armey, who was then the House majority leader under Speaker Newt Gingrich. Ginni was already a well-known figure in the conservative world. She was not a theoretician or a writer but an organizer, a connector of people with jobs and ideas. The work matched her temperament, which was outgoing and jovial. In 1998, she went to work at the Heritage Foundation, one of the leading conservative think tanks in Washington. Between George W. Bush’s election in 2000 and his inauguration, Ginni was assigned the job of matching conservatives with political jobs in the new administration. She served as the think tank’s liaison with the Bush White House.
Shortly before Obama won the presidency, Ginni Thomas took a position in Washington with Hillsdale College, a small liberal arts institution in rural Michigan. The school had no formal religious affiliation, but it had been described by the National Review as “a citadel of American conservatism.” Thomas ran a speaker series for the college in Washington, called the Center for Constitutional Studies and Citizenship. After she was named to the post, she stated that Hillsdale students “always study our Western heritage, American history, and the Constitution. Maybe some of what they learn at Hillsdale will rub off.” Thomas brought in conservative speakers on such subjects as “The Meaning and Intent of the Second Amendment” and “The Constitutional Roots of the Free Enterprise System.” For her first three decades in Washington, Ginni Thomas was a behind-the-scenes player, her name known mostly by other conservatives in the capital.
But after the Tea Party’s rally on September 12, 2009, Ginni Thomas took on, for her, an unprecedented public role as a fiery and outspoken leader in the conservative cause. She told Fox News that she decided to move to the front lines “because of the march on Washington on September 12th, and seeing and being inspired by the real people who came and spent their own money to get to Washington.” She started Liberty Central, a nonprofit at the forefront of conservative advocacy. According to tax records, it was funded by two donations: one of $500,000, the other of $50,000. Under then-current law, she was not obligated to disclose the identities of her contributors, and she never did so. Liberty Central had a website, but mostly the organization appeared to exist to support Ginni Thomas’s travels.
Thomas spent much of 2010 on a coast-to-coast campaign against the Obama administration. As she said in an introductory video on her website, “If you believe in limited government, individual liberty, free enterprise, national security, and personal responsibility, and have felt these principles are under attack from Washington, then you’ve come to the right place.” In a later interview, she said, “I’ve never seen, in my thirty years in Washington, an agenda that’s so far left. It’s a radical, leftist agenda that grabs a lot of power to Washington so that Washington elites can pick the winners and losers.”
All who know Clarence and Ginni Thomas remark on the depth of their love for each other. They travel the country together, often in the large motor coach that the justice calls “the bus.” He is a devoted football fan, and sometimes they go to see Dallas Cowboys games or those of the Nebraska Cornhuskers. (Justice Thomas adopted the team of his wife’s home state.) On other occasions, they just set out and drive, usually stopping in Walmart parking lots, which allow such large vehicles to stay overnight.
The couple also share political views. In his own speeches, Justice Thomas expresses himself in terms similar to those of his wife. Answering questions at a law school in Florida, he said, “The government has to be limited, so you have separations of powers, and some of the other enumerated powers that prevent the government from becoming our ruler. I don’t know if that’s happened already.” Ginni Thomas’s contempt for “elites,” which she shared with the Tea Party at large, also mirrored a theme in Justice Thomas’s writings. Dissenting from O’Connor’s opinion in Grutter, upholding the affirmative action program at the University of Michigan Law School, Thomas wrote, “All the Law School cares about is its own image among know-it-all elites.” In a concurring opinion in Parents Involved, the 2007 case that invalidated school integration plans in Seattle and Louisville, he added, “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.” In his autobiography, he described the ordeal of his confirmation hearings as a time when “America’s elites were arrogantly wreaking havoc on everything my grandparents had worked for and all I’d accomplished in forty-three years of struggle.” More than any other justice, perhaps more than any other public figure, Clarence Thomas helped inspire the Tea Party movement.
For the Thomases and the Tea Party movement, there was one issue that defined their political views in the Obama era: opposition to the president’s health care reform plan.
Health care reform was a major issue in the presidential election of 2008. Until Lehman Brothers failed, the candidates talked about health care more than any other issue. It was one of the few areas of substantive disagreement between Hillary Clinton and Obama, and it came up often in the many debates between the two. Clinton supported an individual mandate—a requirement that all Americans purchase health insurance, with government subsidies for those who could not afford it on their own. Obama opposed the mandate, pointing out in a television advertisement before the Pennsylvania primary: “What’s she not telling you about her health care plan? It forces everyone to buy insurance, even if you can’t afford it. And you pay a penalty if you don’t.”
Once Obama locked up the nomination, however, his view changed. As the Princeton scholar Paul Starr reported in his account of the health care battle, Obama recognized that the insurance industry would not cooperate in the reform process unless there was a mandate. Obama understood that the government could not force insurers to accept individuals with preexisting conditions unless the risk pool included virtually every American; he needed an individual mandate to make the numbers work. As Obama told Neera Tanden, the longtime Clinton adviser who became Obama’s campaign policy director for the general election, “I kind of think Hillary was right.”
So when Obama and senior Democrats unveiled their health care reform ideas, shortly after the election, they all included an individual mandate. It was the heart of the plan, and as during the primaries, the proposal was intensely controversial. Conservatives stated that the plan amounted to a “government takeover” of health care. The issue dominated American politics well into the summer of 2009.
But the most significant aspect of the debate was something that was never said. Although the individual mandate had been a matter of major public controversy for two years, no one suggested that the proposal was unconstitutional. Not a single public figure raised the issue. No one wrote an op-ed piece; no one in Congress gave a speech on the subject. Of course, the Obama plan was opposed with great passion. Thousands of people, including some of the best political and legal minds in the country, devoted their professional lives to defeating the Obama plan. Yet not one of them came up with the argument that the plan was unconstitutional.
That silence is significant. If there had been a plausible argument that Obama’s plan (or Clinton’s plan) for an individual mandate was unconstitutional, it stands to reason that someone would have mentioned it during those many months. No one did. The reason was obvious. The federal government had a long and intimate regulatory connection to the health care industry. Medicare and Medicaid were central parts of Lyndon Johnson’s Great Society, and there had been no doubt of their constitutionality for decades. Obamacare, as some called it, was simply an extension of this well-established federal role.
Furthermore, the individual mandate had been a central part of health care proposals for many years, often from conservative sources. The idea first came to wide public attention in 1989, when it was proposed in a plan sponsored by the conservative Heritage Foundation. For many years, Newt Gingrich himself supported the individual mandate. In 1993, he said on Meet the Press, “I am for people, individuals—
exactly like automobile insurance—individuals having health insurance and being required to have health insurance.” He repeated his support for the idea as recently as 2005. Gingrich never suggested the idea—his idea—was unconstitutional. In 2006, Governor Mitt Romney used the individual mandate as the centerpiece of his health care reform plan for Massachusetts—also without controversy about its constitutionality.
Finally, though, as the debate about Obama’s plan reached its crescendo, someone came up with the constitutional argument. Peter Urbanowicz had been deputy general counsel of the Department of Health and Human Services under George W. Bush, and during the summer of 2009, he was a health care consultant in Washington. Following the debate in the press, he realized there was an angle that he thought had been neglected. Working with Dennis G. Smith, a former colleague at HHS who now worked for the Heritage Foundation, he decided to write up his thoughts for the Federalist Society website. The two authors posted “Constitutional Implications of an ‘Individual Mandate’ in Health Care Reform” on July 10, 2009, asserting that “this individual mandate, if passed, would be an unprecedented federal directive that might call into question the constitutionality of such an action under Congress’s taxation or interstate commerce ‘regulatory’ authority.”
The Federalist Society article was written in three thousand carefully chosen, lawyerly words, but the effect on the health care debate was electric. David B. Rivkin Jr. and Lee A. Casey, who had worked in the Reagan and George H. W. Bush administrations, wrote an op-ed piece in The Washington Post translating the Urbanowicz-Smith article into more colloquial language. Randy Barnett, a law professor at Georgetown, soon became the public face of the argument that Obama’s proposal was unconstitutional. Republican members of Congress added this objection to their bill of particulars against the individual mandate.
The Oath: The Obama White House v. The Supreme Court Page 27