“We turn first to the meaning of the Second Amendment,” Scalia wrote in the key section of his opinion. The very structure of Scalia’s opinion, no less than the result in the case, illustrated why the case amounted to such a personal triumph for him. He began with what he called “textual analysis,” a close parsing of the words, like “militia” and “keep and bear arms,” and their meanings. This was no idle choice. It was a fundamental tenet of Scalia’s philosophy—that judges should rely on the text of the Constitution, more than the contemporary meaning of the words. He turned next to his “review of founding-era sources”—that is, his quest for the original meaning of the amendment. This was an even more important interpretive choice for Scalia. He searched for the “meaning that ‘bear arms’ had in the eighteenth century,” because to him the meaning of the phrase was necessarily the same in the twenty-first century. Textualism and originalism—these were Scalia’s creeds, and he had now read them into an extraordinarily important case.
Justice Stevens’s dissent suggested the extent of Scalia’s triumph. Writing also for his three liberal colleagues, Stevens insisted Scalia was wrong and that the Second Amendment did not bar the government from enacting gun control measures. To prove his point, Stevens also went through the text and history of the Second Amendment, even though they led him to a different conclusion. But Scalia and his fellow counterrevolutionaries had changed the nature of constitutional debate. And in this case at least, they had won.
Exactly what they had won remained unclear. The degree of judicial activism reflected in the gun control opinion was extraordinary. Scalia even went so far as to say the part of the D.C. law mandating trigger locks was also unconstitutional; under his reading, the Constitution required that guns in the home be available for “immediate self-defense.” In what might have been a wry tweak to his liberal adversaries—the ones he usually accused of activism—Scalia noted gravely, “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
The opinion in Heller guaranteed a flood of new litigation. The Second Amendment now protects the right to possess weapons in the home, but what about outside the home? Is the sale of weapons now also protected by the Constitution? Scalia said the government could regulate some “military” weapons, but what are they, and how can anyone tell? As a result of the Court’s decision in Heller, it will be judges, not voters and elected officials, who will be answering these questions. And it will be years, and perhaps decades, before the courts even debate them.
Indeed, at this precarious moment in the Court’s history, it is hard to say for sure which issues are settled for the long term. The 4–4–1 breakdown of the justices guarantees that on most any controversial issue, the majority will be tenuous. This is especially true on the most politically explosive issues before the Court—abortion, above all. The replacement of a liberal by a conservative—or of a conservative by a liberal—will transform the law, perhaps for a generation. To many, the polarized state of affairs is cause for dismay; the hope for a middle ground—for “the law” to become clear—endures. But this, as the framers knew, remains a false hope. The justices of the Supreme Court are selected by the president and confirmed by the senate because they are part of the grand political design that is our Constitution. And so, with their votes and through this system, the people pick their Supreme Court. In 2008 especially, but in every election as well, the Court’s future is up for a vote.
ACKNOWLEDGMENTS
This book was much improved by the attentive and skillful editing of Phyllis Grann. At Doubleday, I am grateful also to Karyn Marcus, Todd Doughty, Roslyn Schloss, Rebecca Holland, Michael Collica, Bette Alexander, and the boss, Stephen Rubin. Once again, my agent, Esther Newberg, has steered me the right way. My thanks as well to John Q. Barrett of the St. John’s School of Law and to Tom Goldstein of the Akin, Gump firm for their helpful comments on the manuscript, and to Dan Kaufman for fact-checking assistance.
I am privileged to work at The New Yorker, where David Remnick has been a generous editor and a loyal friend. I am fortunate to work with Dorothy Wickenden, Emily Eakin, and Jeffrey Frank. I am lucky, too, in my CNN colleagues, and I thank Jon Klein and Bill Mears for their support of this venture.
Covering the World Cup had absolutely nothing to do with writing about the Supreme Court, but that experience, with my son Adam, was the highlight of this book’s creation. Talking with my daughter Ellen is always a part of my continuing education, about law, politics, and everything else. My days with their mother, Amy McIntosh, are nothing less than the highlight of my life.
NOTES
This book is based principally on my interviews with the justices and more than seventy-five of their law clerks. The interviews were on a not-for-attribution basis—that is, I could use the information provided but without quoting directly or identifying the source.
I have also steeped myself in the vast literature about the Court. In addition to the works cited below and in the bibliography, I have benefited from the day-to-day coverage of the Supreme Court press corps, especially that of Linda Greenhouse, Lyle Denniston, Chuck Lane, Dahlia Lithwick, Tony Mauro, David Savage, and Nina Totenberg. My thanks also to the Public Information Office of the Court, its excellent website, www.supremecourtus.gov, and Kathy Arberg, Patricia McCabe, and Ed Turner. Like all contemporary students of the Court, I benefited from my immersion in Justice Blackmun’s papers at the Library of Congress. My discussion of the Casey abortion decision drew heavily from this priceless trove.
Fortunately, the Court’s opinions are now widely available online. I relied on Cornell University’s http://supct.law.cornell.edu/supct/index.html. For transcripts and recordings of the Court’s oral arguments, Professor Jerry Goldman of Northwestern University created www.oyez.org, which I found indispensable. Among blogs, I looked often at the authoritative www.scotusblog.com, the encyclopedic http://howappealing.law.com, and the irresistible, if much diminished http://underneaththeirrobes.blogs.com. I am grateful, too, to Dr. Robert Browning and his colleagues at the C-Span archive in West Lafayette, Indiana, for the opportunity to study their many treasures.
PROLOGUE
The architect Cass Gilbert: Paul Byard, “Supreme Court Architecture,” lecture, Supreme Court Historical Society, U.S. Supreme Court, March 24, 1999; Fred J. and Suzy Maroon, Supreme Court, chs. 1–2; William H. Rehnquist, Supreme Court, pp. 100–2; Leo Pfeffer, Honorable Court, p. 69.
CHAPTER 1: THE FEDERALIST WAR OF IDEAS
They called themselves the Federalist Society: George W. Hicks, “The Conservative Influence of the Federalist Society on the Harvard Law School Student Body,” Harvard Journal of Law and Public Policy 29(2006), p. 648.
some conservatives started questioning that wisdom: For an extensive and critical examination of the Constitution-in-exile movement, see Cass R. Sunstein, Radicals in Robes, and Jeffrey Rosen, “The Unregulated Offensive,” New York Times Magazine, April 17, 2005.
a speech at Yale in 1982: Hicks, “Conservative Influence,” p. 649.
“object to as much as the last one”: Ethan Bronner, Battle for Justice, p. 312.
Sununu promised that the president: Jane Mayer and Jill Abramson, Strange Justice, p. 13.
CHAPTER 2: GOOD VERSUS EVIL
“They’ll both bite”: Mayer and Abramson, Strange Justice, p. 16.
Minnesota Twins: Linda Greenhouse, Becoming Justice Blackmun, p. 63.
William O. Douglas, then the senior associate justice: Bob Woodward and Scott Armstrong, The Brethren, p. 170.
Stewart responded eagerly: J. Anthony Lukas, “The Playboy Interview: Bob Woodward,” Playboy, Feb. 1989.
“right on target!”: Joan Biskupic, Sandra Day O’Connor, p. 158.
top hat as a gift: Greenhouse, Becoming Justice Blackmun, p. 56.
“just like a clown”: John W. Dean, The Rehnquist Choice, p. 86.
“Voices outside the room”: Bonnie Goldstein, “Rehnquist’s Skeletons,” Sla
te, Jan. 16, 2007, www.slate.com/id/2157684.
Rehnquist had tentatively planned: Mayer and Abramson, Strange Justice, pp. 349–50.
the Post decided not to pursue the issue: Ibid., p. 350.
CHAPTER 3: QUESTIONS PRESENTED
bagpipes provided accompaniment: Biskupic, Sandra Day O’Connor, pp. 31–32, 51.
she voted to end criminal prohibitions: Ibid., p. 58.
a young Justice Department aide named Kenneth Starr: David J. Garrow, “The Unlikely Center,” New Republic, Feb. 28, 2006.
audacious litigation tactics: Edward Lazarus, Closed Chambers, pp. 459–86; Greenhouse, Becoming Justice Blackmun, pp. 199–206.
he simply kept Planned Parenthood v. Casey off the list of cert petitions: There is some dispute about how hard Rehnquist tried to delay the Casey argument. Blackmun clearly thought the chief was trying to run out the clock before the election. See David J. Garrow, “Dissenting Opinion,” New York Times Book Review, April 19, 1998.
never managed to catch up: David J. Garrow, “Justice Souter Emerges,” New York Times Magazine, Sept. 25, 1994.
“close approach to solitude”: Garrow, “The Unlikely Center.”
CHAPTER 4: COLLISION COURSE
helped spark the Civil War: David G. Savage, “The Rescue of Roe v. Wade,” Los Angeles Times, Dec. 13, 1992.
“decisions we do not like”: Lazarus, Closed Chambers, p. 471.
“Wow! Pretty extreme!”: Greenhouse, Becoming Justice Blackmun, p. 203.
a letter from a nun: Savage, “The Rescue of Roe v. Wade.”
“correctness and legitimacy”: Greenhouse, Becoming Justice Blackmun, p. 204.
unlikely jogging partners: Savage, “The Rescue of Roe v. Wade.”
“‘what I think it ought to mean!’”: Margaret Talbot, “Supreme Confidence,” New Yorker, March 28, 2005, p. 42.
correct for all time: Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, p. 215.
He needed to “brood”: Terry Carter, “Crossing the Rubicon,” California Lawyer, Oct. 1992.
CHAPTER 5: BIG HEART
Cuomo faxed Clinton: George Stephanopoulos, All Too Human: A Political Education, pp. 167–68.
the Guinier nomination blew up: John F. Harris, The Survivor: Bill Clinton in the White House, p. 60.
less sympathy than some judges: See http://www.oyez.org/oyez/resource/legal_entity/107/biography.
“answer will be nothing but yes”: Stephanopoulos, All Too Human, pp. 170–71. See also Henry J. Abraham, Justice, Presidents, and Senators, pp. 315–20.
Ruth Bader Ginsburg had been to women’s rights: Roger K. Newman, “President Clinton’s Supreme Court Appointments,” lecture, Hofstra University, Nov. 11, 2005.
he was the only person: David Remnick, “Negative Capability,” The New Yorker, Nov. 27, 1995, p. 44.
CHAPTER 6: EXILES RETURN?
witty speech Breyer had given: Newman, “President Clinton’s Supreme Court Appointments.”
“how awful you are?”: Ibid.
Clinton asked his staff to leave him alone: Ibid.
His distinguished service on the judiciary continued: See Morris Sheppard Arnold, “A Tribute to Richard S. Arnold,” Arkansas Law Review 58 (2005): 481, 482.
libertarian magazine: Douglas H. Ginsburg, “Delegation Running Riot,” Regulation 18, no. 1 (1995).
CHAPTER 7: WHAT SHALL BE ORTHODOX
“no other gods before me”: See discussion in Noah Feldman, Divided by God, pp. 151ff.
His law firm declared bankruptcy: Tony Mauro, “Jay Sekulow’s Golden Ticket,” Legal Times, Oct. 31, 2005.
“Wrong table”: Jeanne Cummings, “In Judge Battle, Mr. Sekulow Plays a Delicate Role,” Wall Street Journal, May 17, 2005.
various civic groups: Biskupic, Sandra Day O’Connor, pp. 282–86.
CHAPTER 8: WRITING SEPARATELY
Thomas required the new ones: Kevin Merida and Michael Fletcher, Supreme Discomfort: The Divided Soul of Clarence Thomas, p. 163.
still bedridden most of the time: Tony Mauro, “Decade after Confirmation, Thomas Becoming a Force on High Court,” Legal Times, Aug. 20, 2001.
his mother was struggling: Ibid., p. 39.
“condo on wheels”: Merida and Fletcher, Supreme Discomfort, p. 340.
“universally untrustworthy”: Diane Brady, “Supreme Court Justice Clarence Thomas Speaks,” BusinessWeek, March 12, 2007.
would not appear on television morning news shows: David D. Kirkpatrick with Linda Greenhouse, “Memoir Deal Reported for Justice Thomas,” New York Times, Jan. 10, 2003.
$42,200 in gifts: Richard A. Serrano and David G. Savage, “Justice Thomas Reports Wealth of Gifts,” Los Angeles Times, Dec. 31, 2004.
CHAPTER 9: CARDS TO THE LEFT
Clinton always said he had no memory: Of course, it is possible that both Jones and Clinton were lying and that a consensual sexual encounter took place. See Jeffrey Toobin, A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President, p. 158.
In 1975, as Jeffrey Rosen first reported: Jeffrey Rosen, “Rehnquist the Great?” Atlantic Monthly, April 2005.
CHAPTER 10: THE YEAR OF THE ROUT
the riches he extracted: On Sekulow’s financial arrangements, see Mauro, “Jay Sekulow’s Golden Ticket.”
an anonymous informant slipped: On the history of “partial birth” legislation, see Chris Black, “The Partial-Birth Fraud,” American Prospect, Fall 2001.
CHAPTER 11: TO THE BRINK
a dozen roses for him: Biskupic, Sandra Day O’Connor, pp. 167–68.
Stoessel’s party: See Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, pp. 248–49; Evan Thomas and Michael Isikoff, “The Truth Behind the Pillars,” Newsweek, Dec. 25, 2000; Jess Bravin et al., “For Some Justices, the Bush-Gore Case Has a Personal Angle,” Wall Street Journal, Dec. 20, 2000; Biskupic, Sandra Day O’Connor, pp. 308–9.
“Pool hustler”: Biskupic, Sandra Day O’Connor, pp. 31, 293.
CHAPTER 12: OVER THE BRINK
many clerks think they are more important: For a realistic and moderate view of the role of law clerks, see Emily Bazelon and Dahlia Lithwick, “Endangered Elitist Species,” Slate, posted June 13, 2006, http://www.slate.com/id/2143628/, which discusses Todd C. Peppers, Courtiers of the Marble Palace, and Artemus Ward and David L. Weiden, Sorcerers’ Apprentices.
“Please make sure”: For details of the actions of the Bush and Gore teams in connection with Bush v. Gore, see Toobin, Too Close to Call, chs. 15–16.
CHAPTER 13: PERFECTLY CLEAR
a Ginsburg clerk: David Margolick et al., “The Path to Florida,” Vanity Fair, Oct. 2004; Toobin, Too Close to Call, chs. 15–16.
how votes are counted after the election: See, e.g., Jack Balkin, “Bush v. Gore and the Boundary between Law and Politics,” Yale Law Journal 110 (2001): 1407.
as innumerable commentators subsequently pointed out: For a recent case, Bush v. Gore has already generated a vast literature. See, e.g., Bruce Ackerman, ed., Bush v. Gore: The Question of Legitimacy, New Haven: Yale University Press, 2002; E. J. Dionne Jr. and William Kristol, eds., Bush v. Gore: The Court Cases and the Commentary, Washington: Brookings Institution Press, 2001; Richard A. Posner, Breaking the Deadlock, Princeton: Princeton University Press, 2001; Cass R. Sunstein and Richard A. Epstein, eds., The Vote: Bush, Gore & the Supreme Court, Chicago: University of Chicago Press, 2001.
The journalists’ confusion was understandable: In fairness, I should disclose that I was one of those reporters trying to translate the opinion on live television.
The recount of the 60,000 undervotes: After the election, the most comprehensive examination of the ballots in Florida was led by eight news organizations, including the New York Times and the Washington Post, and conducted by the National Opinion Research Center. See http://www.norc.org/fl/voting.asp. The “media recount,” as it became known, examined all 175,010 ballots
in the state that were undervotes or overvotes and thus not counted in the final tally. Under all of the contemplated scenarios, if a full statewide recount had been conducted, the media recount showed that Gore would have won Florida; if the Court had allowed the recount to proceed in just the disputed counties, according to this recount, Bush would have won. As with the official election results, the margins between the candidates in the media recount were tiny, just a few hundred votes; moreover, this recount did not review the already counted ballots, nor could it capture the uncertainties of vote counting in the real world. In short, it is fair to say that there is no way of knowing with certainty whether Bush or Gore would have won if the Court had allowed the recount to proceed.
CHAPTER 14: “A PARTICULAR SEXUAL ACT”
where a Supreme Court justice could mingle: Anne-Marie Slaughter, A New World Order, ch. 2.
an unusual conversation with one of his law clerks: John C. Jeffries Jr., Justice Lewis F. Powell Jr. See also Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court, pp. 272–75.
CHAPTER 15: “A LAW-PROFESSION CULTURE”
“He always had a book in front of his face”: Talbot, “Supreme Confidence.”
Black Hawk air combat helicopters: David G. Savage and Richard A. Serrano, “Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows,” Los Angeles Times, Feb. 5, 2004; Adam Nossiter, Associated Press Wire, Feb. 5, 2004.
CHAPTER 16: BEFORE SPEAKING, SAYING SOME THING
O’Connor was assigned to write the opinion: See Biskupic, Sandra Day O’Connor, pp. 205–8; David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court, pp. 239–43; Lazarus, Closed Chambers, pp. 291–99.
grade-point averages: Nicholas Lemann, “The Empathy Defense,” New Yorker, Dec. 18, 2000, p. 46.
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