Bush still had one more seat to fill. The Cheney short-list sat on his desk, but with Roberts safely installed as chief justice, the president was ready to make a bolder choice—to replace O’Connor with a woman, something the retiring justice herself had hoped for. But the women most favored by conservatives were far to the right of O’Connor, bait for a nasty confirmation fight. Encouraged by a talk with the Senate’s Democratic minority leader, Harry Reid, who claimed to have been impressed by her in a meeting before the Roberts appointment, Bush decided to nominate his White House counsel, Harriet Miers. She had served Bush loyally for years in Texas and now in Washington. That Miers had no judicial experience or background in constitutional law—she had practiced corporate law in Dallas for twenty-four years and served a term on the city council—mattered less to Bush than his conviction that they saw eye-to-eye on all things that mattered. This included Bush and Cheney’s expansive views of executive power, which Miers had spent years in the White House defending. It also included faith. Like Bush, Miers was a convert to evangelical Christianity, which had given her, her minister said, “a servant’s mentality.”
For Bush it was a personal pick. As he said when he announced the nomination, “I know her heart, I know her character.” But movement conservatives didn’t know her, and they had felt betrayed too often in the past to take nominees on trust. What if she turned into a replica of the woman she was replacing? Moreover, the pick was a slap in the face. For decades, they had groomed a deep team of brilliant young lawyers with sterling credentials, and now “the president’s secretary”—as some mistook Miers—had been parachuted in to seize the grand prize.
For the first time in his presidency, Bush faced open rebellion on the right. Though conservatives painted Miers as almost comically ignorant of constitutional law and the role of the court, their real concern was her lack of ideological credentials. It was critical that they cut her down fast. If the nomination came to a vote in the Senate, Democrats would likely vote aye—and why not, considering the potential alternatives?—while Bush would bring along enough Republican loyalists, and Harriet Miers would become a Supreme Court justice! The conservative attack was swift and merciless. Mauled by her boss’s “base,” Miers withdrew, just three weeks after the president’s proud announcement.
Chastened, Bush retreated to Cheney’s short-list, where he found a judge his right-wing base could embrace as one of their own. Much would be made of similarities in the careers of Samuel Alito and John Roberts. Alito too had been among the eager young Federalist Society lawyers to burrow into the Reagan administration. Like Roberts, he had been appointed to the federal bench by Bush’s father. But unlike with Roberts, there was no fuzziness about Alito’s views. What he described as his “deep interest in constitutional law” had been triggered as an undergraduate at Princeton “in large part by deep disagreement with Warren Court opinions.” In 1988, after Robert Bork’s nomination had gone down in flames, Alito praised him as “one of the most outstanding nominees of this century.” As a federal judge, Alito was dubbed “Scalito” by liberals but his opinions were less those of a slashing partisan than of a relentlessly solid technician. “He was on the bench for fifteen years,” said a White House official, “and he never got a case wrong.” When Casey had come before his appeals court, Alito voted to uphold all of Pennsylvania’s restrictions on abortion, including its spousal-notification provision, a position the woman he was nominated to replace called “repugnant.”
Conservatives were ecstatic. Federalist Society members coordinated a “grassroots” campaign in support of their longtime colleague. Legislative strategy was run out of Cheney’s office. The opposition was not so well organized. Senate Democrats could not sustain an early filibuster threat when moderates declined to join in. Though liberal advocacy groups painted Alito as part of the “radical right legal movement,” Judiciary Committee Democrats, with their scat tershot questioning, could not Bork him. Recent revelations that Bush had conducted illegal surveillance of Americans raised crucial questions about presidential authority. Despite a background that suggested Alito would endorse sweeping executive power, Democrats were unable to draw blood. While not as smooth as Roberts, the soft-spoken nominee answered questions cautiously and methodically, daring even to be boring. The committee approved his nomination by a party-line vote. After a last-ditch filibuster push sputtered, the full Senate confirmed Alito, with 42 Democrats opposed.
AFTER THE long frustration of awaiting vacancies, the Cheney-Bush imprint on the Supreme Court soon was evident enough. In John Roberts’s first three terms as chief justice, 2006 through 2008, the conservative “phalanx,” as legal scholar Ronald Dworkin chris tened Roberts, Alito, Scalia, and Thomas, and with the indispensable help of Anthony Kennedy, delivered a series of decisions that read like planks from a Republican party platform. Fifty years after Brown, the conservatives hobbled efforts to desegregate public schools by making it nearly impossible for districts to use racial considerations except where schools had been segregated by law, thus striking down the integration plans of hundreds of schools districts around the country. They undermined the exclusionary rule by allowing unconstitutionally obtained evidence to be used against criminal defendants. Overturning two precedents, they ruled that an inmate could not be excused for missing an appeals filing deadline because a federal judge had given his lawyer the wrong date. They limited the free speech of government employees and of high school students and blocked court challenges to the constitutionality of Bush’s grants of federal money to religious institutions providing social services under his “faith-based initiative.”
The conservatives gave Republicans satisfaction on two issues the party had long exploited for financial and electoral gain. The court for the first time approved the criminalization of a specific abortion procedure, so-called “partial-birth” abortion. And the conservatives struck down the District of Columbia’s ban on handguns, enacted by that crime-ridden city in 1976. For the first time, the Supreme Court recognized an individual right to gun ownership, subject only to such controls as the court itself might find “reasonable.” Even leading figures of the conservative legal establishment objected to the decision in District of Columbia v. Heller, comparing it to that ultimate horror, Roe v. Wade. A prominent federal appeals court judge, J. Harvie Wilkinson III, complained that, as with Roe, the justices had overruled “the wishes of the people’s representatives” to invent a right that had no basis in the Constitution. Another influential conservative judge, Richard Posner, condemned the use of the “freewheeling discretion” of judicial review “strongly flavored with ideology” to tighten the court’s grip on the legislative and executive branches.
For Posner, judicial review inherently involved a political judgment, and that partisanship was on display when the conservative justices gave yet another lift to the GOP by invalidating two provisions of a major campaign law passed in 2002 over the objections of Republican bosses—one that restricted corporate political advertising, and another, the “Millionaire’s Amendment,” that lifted fund-raising limits for candidates facing wealthy opponents whose own spending from personal funds was unrestricted. Finally, the conservatives enabled Republicans to add several seats to their Texas congressional delegation by rubber-stamping an egregious gerrymander cooked up by party leaders in Washington and Austin that reapportioned districts in ways grossly favorable to GOP candidates.
Every one of these decisions was the work of a bare majority of five justices—the phalanx plus Kennedy, who remained a swing vote, only now swinging more right than left. Even when he swung the other way, the phalanx stood united in dissent. Chief Justice Roberts, in his confirmation hearings, had taken pains to distinguish his jurisprudence from the radicalism of Scalia and Thomas, yet in 2007, he voted with Scalia in almost 90 percent of nonunanimous cases. His—and Alito’s—votes in the 2006 term alone provoked Ted Kennedy, a forty-three-year veteran of the Senate Judiciary Committee, to declare their confi
rmation hearings a “sham.” Kennedy wrote that their “voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist’s embrace of the administration’s political and ideological agenda.”
In the hearings and in speeches and interviews, Roberts had promised to unify the court, promoting himself as a consensus-builder, extolling the virtue of unanimous decisions, with “one clear and focused opinion of the court.” But unanimous opinions fell during his tenure, while the proportion of 5-4 votes leaped to historic highs—more than one third of all decisions in 2007. And many of these close divisions were bitter, as the court’s liberals, unusually, made their anger and frustration public. Mild-mannered David Souter, dissenting when the court denied relief to the inmate who had missed the filing deadline, declared that “it is intolerable for the judicial system to treat people this way,” while John Paul Stevens jabbed at the conservatives’ “strained and unpersuasive reading” of the Second Amendment in the D.C. handgun case. Dissenters pointed out that the conservatives were casting away precedents on the strength of their slim majority alone—“power, not reason,” as Thurgood Marshall had feared in 1991, was now the court’s currency. Dismayed by the conservative assault on school integration and Brown, Stephen Breyer spoke emotionally for twenty minutes in open court, concluding, “It is not often in the law that so few have so quickly changed so much.” Even the typically collegial Ruth Ginsburg noted that with their “partial-birth” abortion decision, the conservatives had overturned a 2000 precedent—the only distinction between the two cases, she added tartly, was that the court was “differently composed.”
But for all of the precedents the phalanx erased, the chief justice also pursued a subtler strategy. He had, after all, as Ted Kennedy recalled, promised senators that he would be “a modest judge.” Frequently, Roberts held back from overturning an old ruling openly. Instead he crafted an opinion that would, in Ronald Dworkin’s analysis, dismiss existing law without acknowledging that it was doing so—by “subterfuge”—but “as effectively as if it had done so explicitly.” Roberts would sap the precedent of its authority, leaving it an empty shell. Justice Scalia, always a maximalist where Roberts was usually a minimalist, scorned this “faux judicial restraint” as “ judicial obfuscation.” But such denunciations also served Roberts’s purpose: they separated him from Scalia and Thomas in controversial cases, and while they filed their inflammatory concurrences, he would issue his quieter, but scarcely less far-reaching, opinions for the court.
The chief justice’s “stealth” strategy and skill at playing his “moderation” against the court’s extremists also enabled Roberts to pick off members of the liberal bloc, bringing them behind conservative decisions, as he did most notably in 2008, when the proportion of 5-4 decisions dropped by half from the year before. On the short end of such decisions himself all too often, dependent on the vote of the erratic Kennedy, Roberts would expand his numbers where he could, without sacrificing the results he sought. He won the support of Stevens and Breyer for a 7-2 ruling that upheld Kentucky’s use of lethal injection to execute convicted criminals. They agreed in Baze v. Rees that the available evidence did not prove that the procedure was painful enough to constitute “cruel and unusual” punishment, although Stevens took the opportunity in a separate concurrence to explain his vote as a bow to precedent. In fact, he wrote, he favored the total abolition of the death penalty. For his part, Roberts had to leave the door open to reversing the decision if conclusive evidence appeared of the suffering caused by lethal injection, but the chief justice, a consistent defender of the death penalty, got the result he wanted.
Similarly, Stevens agreed to join the phalanx and Kennedy in a 6-3 ruling to uphold an Indiana law that, to prevent voting fraud, obliged voters to present government-issued photo identification before they were allowed to cast ballots, the toughest of a half-dozen such state laws. Liberals believed that these laws were an attempt by Republican legislators to cut Democratic turnout at the polls. Despite the fact that there had never been a documented case of voter fraud in Indiana history and despite expectations that the law might disenfranchise countless poor, disabled, elderly, and minority voters, the court’s majority in Crawford v. Marion County Election Board, in an opinion written by Stevens himself, held that the measure did not put an undue burden on voting rights. Scalia and Thomas, in their concurrences, demanded a more sweeping rejection of challenges to such laws.
Stevens, who had spoken eloquently on behalf of disenfranchised voters in Bush v. Gore, may have gone along with Roberts in order to forestall such a judgment. His opinion left open the possibility that more evidence of the law’s burden on voters would lead to a reversal. Shortly after the court’s ruling, a dozen Indiana nuns, all in their eighties and nineties, who came to the polls in wheelchairs and on walkers, were refused ballots when they could not prove their identities. A few had expired passports; none had a driver’s license. The precinct worker who had to turn them away was a nun from their convent. News reports did not indicate whether the sisters were Democrats or Republicans.
BY 2008, John Paul Stevens, Chicago Republican, Ford appointee, and by his own account, “pretty darn conservative,” had for almost twenty years been the leader of what remained of the judicial liberalism that once had dominated the Supreme Court. After decades of right-wing assault, the court’s liberal bloc had been reduced to reliance on the wayward decision-making of Ronald Reagan’s last appointee, Anthony Kennedy. “Including myself,” Stevens told a journalist in 2007, “every judge who’s been appointed to the court since Lewis Powell”—named by Nixon in 1971—“has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.” At age eighty-eight, the survivor of countless rumors—and Republican hopes and prayers—that he would retire, Stevens was all too aware of the fragility of the constitutional principles he upheld and how close the Supreme Court was to becoming the unbreachable conservative fortress it had been through much of its history. One more Roberts or Alito, one more Scalia or Thomas, would do it.
Nothing more vividly illustrated the razor’s edge on which the awesome Supreme Court perched than the cases involving presidential power in the age of Bush and Cheney. Already, the court had rejected Bush’s attempt to send captives of the “war on terror” into what an official called “the legal equivalent of outer space”—a “lawless” universe beyond the reach of Constitution and courts. After the justices denied Bush his “blank check ” in Rasul v. Bush and Hamdi v. Rumsfeld in 2004, the president unilaterally created military commissions to try detainees at the Guantánamo prison in Cuba. By the time a challenge to that action, brought on behalf of Salim Ahmed Hamdan, a Yemeni held since 2001, reached the court in 2006, Roberts and Alito had taken their seats on the bench. But because Roberts had already ruled on Hamdan v. Rumsfeld as an appeals court judge—upholding the administration in the decision that won Dick Cheney’s heart—the new chief justice did not take part in the case. On decision day, he sat next to Stevens as the old judge read out a majority opinion that shredded Roberts’s earlier work piece by piece. Stevens focused sharply on Bush’s determination to consolidate all power over the detainees in the executive branch, rejecting the president’s arguments that he could establish military commissions without congressional authorization and that the Supreme Court was not entitled to hear Hamdan’s appeal. The 5-3 ruling was a sharp blow to Bush-Cheney unilateralism as the majority, Clarence Thomas complained in his dissent, chose to disregard the court’s “well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs.”
The president responded quickly in the fall of 2006 by pushing the compliant Republican Congress to authorize what he had been doing all along. Despite Supreme Court rulings in the earlier cases, the new law also asserted that the court’s jurisdiction did not extend to the revived military commissions.
When the inevitable challenge arrived at the Supreme Court late in December 2007, Bush’s solicitor general, Paul Clement, argued that the justices had no business hearing Boumediene v. Bush. “Congress here has spoken,” he declared. “The political branches have spoken.” As evidence grew that the military commissions were a sham—their former chief prosecutor, Colonel Morris Davis, charged that the administration planned to mount show trials, with convictions guaranteed—the Supreme Court asserted its jurisdiction over them, again holding, in a 5-4 decision, that the detainees were entitled to habeas corpus, “an indispensable mechanism for monitoring the separation of powers.” As in Hamdan, Kennedy provided the fifth vote, and he authored the majority opinion in Boumediene, a harsh rebuke to both president and Congress. “To hold that the political branches may switch the Constitution on or off at will,” he wrote, “would lead to a regime in which they, not this Court, say ‘what the law is.’ ”
The conservative phalanx united in opposition, with Roberts raising the old cry of “ judicial activism,” accusing the majority of replacing “a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.” Scalia went further, as he so often did, and roused a still older fear. Never mind his outrage in Hamdi at the administration’s trade-off of liberty for security. With the country “at war with radical Islamists,” Scalia now forecast chillingly, the ruling “will make the war harder on us” and “will almost certainly cause more Americans to be killed.”
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 24