The Roberts Court: The Struggle for the Constitution
Why should you care about the U.S. Supreme Court? On one level, the reason is simple: The court makes important decisions that affect all our lives. But Congress and the executive branch make such decisions too. Is there any special reason to pay attention to the court, a reason that distinguishes it from the other branches? I see at least two. The first is practical: Because Supreme Court justices get lifetime appointments, we lack the regular occasion of elections to cast our attention the court’s way, and the news media do not report on the court’s actions with the urgency they show the other branches. The second reason is substantive: Courts, uniquely among our three branches of government, give reasons for their actions that are supposed to transcend policy preferences. The Supreme Court’s credibility depends on the quality of its reasoning, or at least of its explanations. We do not have the civic obligation to vote for justices, but we have a distinctive civic responsibility to comprehend and evaluate why the court does what it does.
Beginning with Brown v. Board of Education in 1954, and peaking with the Warren court in the late 1960s, the Supreme court took a very active role in securing constitutional rights. Spurred by that development, even as the court itself moved rightward in reaction against the Warren Court’s alleged excesses, Bob Woodward (writing with Scott Armstrong) published The Bretheren (1979). That book has the rare distinction of inventing a genre: institutional biographies of particular eras’ Supreme Courts for a general (not just academic) audience. What The Bretheren did for the court under Chief Justice Warren Burger, David Savage’s Turning Right (1993) did for the court’s next era under Chief Justice William Rehnquist.
Woodward and Savage are renowned journalists. Alongside their efforts, leading constitutional law professors offered their own institutional biographies: Vincent Blasi’s The Burger Court: The Counter-Revolution That Wasn’t (1983); and Mark Tushnet’s A Court Divided: The Rehnquist Court and the Future of Constitutional Law (2002). You might expect the journalists and the academics to have written different sorts of books, and to some extent you would be right. All four of the books I have mentioned speak effectively to general audiences without dumbing down the complexity of the court’s work. But The Bretheren and, to a lesser extent, Turning Right lean somewhat more heavily on character than on plot, focusing on the personalities of the men (and, by the time of Turning Right, one woman) beneath the black robes. In contrast, The Burger Court and A Court Divided state and defend strong theses about what the court’s decisions meant for law and society.
A major Supreme Court case simultaneously resolves a dispute between specific litigants, changes or reaffirms major principles of law, and affects social and political gravity. Both Coyle and Tribe explore all three of those levels. Both authors also understand that the key to making the Supreme Court accessible and interesting lies in the institution’s intimacy.
Chief Justice John Roberts has now presided over the Supreme Court for nearly a decade. In that time the court has largely (but not completely) upheld Obamacare; gutted campaign finance regulations, most notoriously in the Citizens United v. FEC (2010) case; found in the Second Amendment an individual right to keep and bear arms; and much more. The year 2014 delivered the Roberts Court’s twinned academic and journalistic biographies. Marcia Coyle, who covers the court for the National Law Journal, gives us The Roberts Court: The Struggle for the Constitution. Laurence Tribe, perhaps the nation’s leading scholar of constitutional law, offers Uncertain Justice: The Roberts Court and the Constitution. (Tribe, as he often does, co-authored his book with a recent star student of his, in this case Joshua Matz. I mean no disrespect to Matz but only respect to Tribe’s stature when, from here on, I refer to Uncertain Justice as Tribe’s book.) These two expert, thoughtful, readable books, like their predecessors, reflect their authors’ contrasting professions. The new books’ approaches, though, converge and cross over in important ways. Both show us a cast of fascinating characters while also putting the court’s decisions in substantive perspective. Surprisingly, journalist Coyle, rather than Professor Tribe, ultimately advances the bolder view about this court’s impact on the law.
The Warren Court of the late 1950s and 1960s may have been the most important governmental vehicle for American liberalism in the latter half of the 20th century. The Supreme Court has moved steadily rightward since 1970; the driving question in discussing the court since then has been just how conservative it is. Key appointees of Republican presidents have turned out less conservative than advertised: Nixon appointee Harry Blackmun, Ford appointee John Paul Stevens, and H.W. Bush appointee David Souter all found their ways to the court’s more liberal wing. The Roberts Court, though, boasts an unprecedented core of four ardent conservatives: Chief Justice Roberts himself, Antonin Scalia, Clarence Thomas, and Samuel Alito. Anthony Kennedy, this court’s “swing vote,” has joined the court’s liberals—currently Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—in a handful of important cases. Even he, though, is markedly more conservative than previous “swing votes” like Lewis Powell and Sandra Day O’Connor, and he votes much more frequently with the conservatives. The Roberts Court, therefore, elevates the “how conservative” question to a heightened pitch of interest.
The conservatism meme, though, presents a problem for serious analysts like Tribe and Coyle. The court is not supposed to be a political actor. We expect the justices to provide reasoned grounds for their decisions. That expectation is not wrong—judicial reasoning is a real thing—but neither is it simple. I have freely tossed around the words “liberal” and “conservative” in this essay because they mean something for Supreme Court justices—not exactly what they mean for presidents and legislators, but close enough. Human beings have worldviews, shaped by our circumstances, experiences, and engagement with the world. Supreme Court justices are human beings. No matter how hard they try to reason through cases in objective, principled ways—and I think they generally try very hard—their worldviews end up driving their decisions. This is especially true in constitutional law, an unavoidably political sphere where a relative scrap of text supports scores of important, contentious legal doctrines. What is an academic or a journalist, committed to explaining the Supreme Court accurately to a general audience steeped in politics, supposed to do about the inevitable but complicated role of political worldviews in shaping a palpably conservative court? Tribe and Coyle take different approaches.
(Picador, 2015) 416 pgs. with notes and index
Tribe’s title, Uncertain Justice, gives fair notice of his tone. If any similarly important law book has had a more ambivalent title, I can not recall it. Tribe breaks down the Roberts Court in great detail, with each of his nine chapters focused on a different doctrinal subject. Some of those subjects, like campaign finance and gun rights, focus predictably on the court’s best-known decisions. Tribe, however, also constructs some chapters around more creative themes. Chapter 8, titled “Rights for Sale: Discounting the Constitution,” artfully groups the court’s rejection of Obamacare’s Medicaid expansion and First Amendment decisions on conditions the government has attached to subsidized speech. Tribe largely praises the court for rejecting the government’s use of financial leverage to compromise both state autonomy and individual rights. Similarly, Chapter 9, titled “Making Rights Real: Access to Justice” examines constitutional rulings that determine whether civil plaintiffs and criminal defendants may seek relief from federal courts. This is serious inside baseball, but Tribe makes a forceful case that closing the courthouse door has been one of this court’s most important and troubling contributions to constitutional law. Despite praise here and criticism there, the strongest theme that emerges from Tribe’s account is the contingency, the complexity—the uncertainty—of the Roberts Court’s actions.
Coyle organizes her discussion more simply, at least on the surface. She divides her book into four parts: Race, Guns, Money, and Health Care. Each part encompasses one of the Roberts Court’s most important and famous decisions: Parents Involved in Community Schools v. Seattle School District No. 1(2007), which severely restricted the use of race in assigning primary and secondary students to schools within a district; District of Columbia v. Heller (2008), which announced the Second Amendment as a source of individual rights; Citizens United v. FEC (2010), which removed constraints on corporate political spending; and National Federation of Independent Business v. Sebelius (2012), which upheld the central elements of Obamacare. Coyle arranges these four topics in the sequence of the four decisions, and she divides each topic into several chapters. She weaves in discussions of the justices’ personalities and the court’s other major decisions, resulting in a detailed history of the Roberts Court that ultimately depends more on chronology than on subject matter.
The two books use different methodologies, consistent with the authors’ professions and comparative advantages. Tribe, the academic, mostly presents original substantive legal analysis of the court’s decisions. Any attentive reader can get a lot out of Uncertain Justice; at the same time, most constitutional law professors will find fresh, creative analytic insights throughout the book. Coyle, the journalist, conducted numerous interviews with the justices, their clerks, and attorneys and parties involved in the court’s major decisions. As a result, The Roberts Court: The Struggle for the Constitution trades in rich narrative detail, even as Coyle scrupulously avoids idle gossip and innuendo. Coyle may know more than anyone about the stories behind the Roberts Court’s decisions, and her book does a great service by molding those stories into an accessible, often compelling narrative.
The two books have much in common. Both provide helpful background on the legal doctrines behind the court’s decisions. With the notable exception of Heller, the Second Amendment case, the Supreme Court at this late date never writes on a clean slate. You can not hope to understand Citizens United, for example, without first gaining a working knowledge of a line of cases that stretches back almost four decades. Both Tribe and Coyle provide that grounding. In addition, both books give admirably well-rounded accounts of the decisions. A major Supreme Court case simultaneously resolves a dispute between specific litigants, changes or reaffirms major principles of law, and affects social and political gravity. Both Coyle and Tribe explore all three of those levels. Both authors also understand that the key to making the Supreme Court accessible and interesting lies in the institution’s intimacy. The Court consists of just nine people, unscarred (for better and worse) by electoral politics. Almost every decision of the court bears the signature, and reflects the personality, of one of those nine. Coyle and Tribe undergird their accounts of the Roberts Court’s work with introductions to the justices’ quirks, their passions, and their comings and goings (four members of the present court have served under no prior chief).
Tribe leaves an impression of wanting to debunk the commonly held notion that Supreme Court justices simply seek to impose their policy preferences. No, he seems to insist, you do not get it; the Supreme Court is a complex institution. Coyle agrees about the complexity, but she gives skeptical readers more credit for being onto something.
The two books contrast most sharply in how they approach the question of the Roberts Court’s conservatism. Neither of these authors is so simplistic, or so cynical, as to reduce Supreme Court justices to political caricatures. Both understand that the court as an institution engages with politics in complicated, generally high-minded ways (think “political” in the sense of “political theory” rather than “political campaign”). Neither book pushes an ideological agenda. Coyle maintains the professional journalist’s posture of objectivity. Tribe is a well-known liberal, an almost tragic mainstay of Democratic presidents’ Supreme Court short-lists in an era of mostly Republican appointments. Even so, his nuanced takes here on subjects from corporate campaign spending to individual gun rights would not exactly excite MSNBC.
Tribe resists the idea that the Roberts Court is strikingly or significantly conservative. In contrast, Coyle portrays this court’s conservatism as its defining feature. Take the two authors’ treatments of the court’s relationship to the business community. Fans and critics alike routinely claim that the Roberts Court has been friendlier to business than any Supreme Court in recent memory. Tribe disdains that blunt view, arguing, in effect, that the truth is not that simple. Coyle looks at the same cases in largely the same way Tribe does. Like him, she sees their nuances. Unlike him, though, she suggests that the ultimate reality is pretty simple. This court may not give businesses absolutely everything they ask for, but it is a strongly business-friendly court.
What accounts for this contrast in tones? Tribe leaves an impression of wanting to debunk the commonly held notion that Supreme Court justices simply seek to impose their policy preferences. No, he seems to insist, you do not get it; the Supreme Court is a complex institution. Coyle agrees about the complexity, but she gives skeptical readers more credit for being onto something. Much about these two books shows an interesting convergence in academic and journalistic approaches to analyzing institutions. At a fine level of distinction, however, Tribe makes a major rhetorical investment in the inscrutability of his subject: Uncertain Justice. Coyle wants to show readers that something quite knowable, with a concrete political valence, is happening in this Supreme Court: The Struggle for the Constitution.
